By Grant Spellmeyer, ACA Connects President & CEO
Closing the digital divide is an objective we all share, and ACA Connects has long supported – and our Members have long participated in — government programs that target funds to making high-performance broadband service available to unserved locations. What we do not support – in fact strongly oppose – is using government funds to overbuild locations already served by our Members and other broadband providers. Unfortunately, some ten years ago, the federal government awarded support for broadband deployment projects based on either incorrect or even no broadband mapping data, and many of our Members were overbuilt – and many millions of dollars of limited government funding was wasted. Our Members will never forget that this happened, and their concern about misuse of government funding is shared by Members of Congress and other federal policymakers. As a result, in 2020, the U.S. Congress in the Broadband DATA Act directed the Federal Communications Commission (FCC) to adopt a user-friendly challenge process to ensure its location-based broadband maps are accurate. Congress also directed the National Telecommunications and Information Administration (NTIA) in the Broadband Equity, Access, and Deployment (BEAD) program to require States to adopt a challenge process that will ensure they only award funds for projects that deploy broadband to locations that are truly unserved or underserved. What then are the critical elements of a process States should adopt for any program to accurately identify unserved and underserved locations prior to awarding government support for broadband deployments?
- Any Challenge Process Must Precede Government Review of Project Applications – States either are required to use or should be using a competitive bidding process to award funds for broadband deployment projects. But, an “apples to apples” comparison of applications is not possible if all projects under consideration do not reflect actual unserved and underserved locations. In other words, “garbage in, garbage out.” Thus, while a State may want to hold a post-award challenge process to fine-tune the locations that are to be supported, there is no substitute to holding a challenge process up front, before evaluation of the applications begins.
- Project Applicants Must Certify Proposed Service Area Locations Based on the Most Granular and Accurate Broadband Deployment Map Developed by a Government Agency – Following on the requirements of the Broadband DATA Act, the FCC is expected to release later this year a more granular broadband map and after completing a round of challenges sometime next year, this map will be relatively accurate – establishing a national benchmark that will be updated regularly. In the interim before the FCC’s maps are both granular and accurate, States conducting a challenge process should begin from their own maps if they are granular and sufficiently accurate, or from FCC Form 477 data if they are not – and have applicants certify they are using that data to identify unserved and underserved locations. However, once the NTIA decides to use the FCC’s maps for purposes of allocating funds for the BEAD program, every federal, State, and local government agency should rely on the most recent version of the FCC’s maps as baseline data for a challenge process for any program – and all applicants must be required to certify that their proposed service area only contains unserved and underserved locations on those maps.1
- Challengers Should Have a Reasonable Time to Submit a Challenge, and They Must Submit Baseline, Credible Data That a Location is Served – Once project applications are filed, all stakeholders, including providers, consumers, and government agencies, should be given at least 45 days to submit a challenge. In addition, in making a challenge, the stakeholder must supply credible data, similar to that set forth in the FCC’s Digital Opportunity Data Collection rules – 47 CFR §1.7006(d).2 If the State does not believe this threshold has been met, the challenge should be rejected.
- Project Applicants Should Have a Reasonable Time to Submit Credible Data in Response to Challenges – Applicants should be given at least 45 days to respond to challenges, and as with submissions by challengers, they must supply credible data if they are to rebut the challenge.
- States May Request Additional Data from Applicants and Challengers – To ensure States have an adequate record upon which to base their decisions, they should seek additional data from applicants and challengers when necessary.
- States Should Resolve Challenges Based on the Record and a Sound Rationale and Act Within 90 days of an Applicant’s Response – Any decision by a State must be well-reasoned and based on the evidence submitted by the Applicant and Challenger. In addition, so that deployment projects can move forward, States should seek to resolve challenges promptly and should only extend the time to reach a decision beyond 90 days in exceptional circumstances.
- States Should Make All Submissions in the Challenge Process (except for material designated as confidential) Part of a Public Record, and They Should Issue a Decision In Writing that Provides the Bases for the Result – Applicants, challengers, and other stakeholders will only believe the challenge process is fair and reasonable – and States will only maximize use of funding — if the process is transparent and the result is well-reasoned and objective.
One final thought. ACA Connects strongly believes that all Americans should have access to robust, reliable broadband service. Establishing a challenge process that has integrity is essential to that task. Funding “served” locations would be counterproductive, undermining broadband investment and future government programs. We are confident that States understand these stakes, and we look forward to working with them as they consider and award funding for broadband deployments to unserved and underserved locations.
1 States should inform the FCC of any changes in location data that result from the challenge process, so that the national maps have the latest data.
2 (1) Challengers must provide in their submissions: (i) Name and contact information (e.g., address, phone number, e-mail); (ii) The street address or geographic coordinates (latitude/longitude) of the location(s) at which broadband Internet access service coverage is being challenged; (iii) Name of provider whose reported coverage information is being challenged; (iv) Category of dispute, selected from pre-established options on the portal; (v) For consumers challenging availability data or the coverage maps, evidence and details of a request for service (or attempted request for service), including the date, method, and content of the request and details of the response from the provider, or evidence showing no availability at the disputed location (e.g., screen shot, e-mails); (vi) For government or other entities, evidence and details about the dispute, including: (A) the challenger’s methodology, (B) the basis for determinations underlying the challenge, and (C) communications with provider, if any, and outcome; (vii) For challengers disputing locations in the Broadband Location Fabric, details and evidence about the disputed location; (viii) For customer or potential customer availability or coverage map challengers, a representation that the challenger resides or does business at the location of the dispute or is authorized to request service there; and (ix) A certification from an individual or an authorized officer or signatory of a challenger that the person examined the information contained in the challenge and that, to the best of the person’s actual knowledge, information, and belief, all statements of fact contained in the challenge are true and correct.