February 16, 2023

ACA Connects to NTIA: Ensure BEAD Challenge Processes Guard Against Wasteful Overbuilding

Trade Association of Independent ISPs Urges NTIA to Require States and Territories to Use FCC Broadband Maps as the Authoritative Source for Identifying Unserved and Underserved Locations

PITTSBURGH, Feb. 16, 2023 – ACA Connects yesterday wrote the top official at the National Telecommunications and Information Administration (NTIA) that it is essential to require States and Territories to use the Federal Communications Commission’s National Broadband Maps as the authoritative source for identifying unserved or underserved locations for the Broadband Equity, Access, and Deployment (BEAD) Program. 

The letter, sent to Assistant Secretary of Commerce for Communications and Information Alan Davidson, stressed that should States and Territories be able to ignore the FCC’s Maps, it would ignite a free-for-all with no common base of well-vetted data to drive decisions and assess the program’s results.

“For the BEAD Program to fulfill its promise to connect all Americans, NTIA must ensure that program funds are not devoted to overbuilding already-served areas,” said ACA Connects President and CEO Grant Spellmeyer.  “Congress intended the FCC’s broadband maps to be the source for determining which locations in the U.S. are unserved or underserved, and NTIA and the FCC have been diligent in developing these maps and encouraging stakeholders to participate in their refinement.  But this is also why State/Territory challenge processes must, with limited exceptions, treat the FCC’s maps as the definitive source of locations’ service status.”

The letter makes the following additional recommendations (among others) for NTIA’s guidance to States and Territories regarding their BEAD Program challenge processes:

  • NTIA’s challenge process guidance for States and Territories must be fashioned so as not to relitigate the FCC’s own challenge process determinations or otherwise circumvent the FCC process;
  • State/Territory challenge processes should account for locations subject to enforceable deployment commitments pursuant to federal, State/Territory, and local funding mechanisms.  In addition, in the case of locations that are newly served or serviceable with a standard broadband installation, given the natural lag in such locations appearing on the FCC maps, State/Territory challenge processes should be able to account for them, and they also should enable States/Territories to treat each unit in a Multi-Tenant Environment as a separate location for purposes of evaluating subgrant applications;
  • States/Territories should be required to make each subgrant application publicly available – other than information an applicant demonstrates is proprietary and confidential, which may not include proposed eligible service areas and locations;
  • The “credible evidence” that a State/Territory considers probative should include location-specific speed tests, based on tests performed using the Ookla platform that demonstrate that a specified level of service is available at the location;
  • States/Territories must be prevented from imposing unduly onerous evidence requirements;
  • The challenger or recipient of a challenge should have the right to appeal any adverse State/Territory determination of a location’s service status to another agency of the State/Territory or, in the absence of that, to the State’s/Territory’s judiciary; and
  • In the event NTIA does not require States and Territories to use the FCC maps as the underlying sources, it should at least impose responsible limits on the breadth of data States/Territories may introduce or rely on to identify such locations.  Further, for “cable” or “fiber to the premises” technologies, NTIA should require States and Territories to provide a “clear and convincing” justification as to why it will not use the FCC maps as the source for the locations they identify as unserved or underserved in their Initial Proposals, their challenge processes, or the scope of deployment projects proposed in subgrant applications.

“ACA Connects and our Members appreciate the continuing efforts of Assistant Secretary Davidson and NTIA staff to implement the BEAD Program,” Spellmeyer said.  “We believe this letter provides constructive suggestions to help inform NTIA’s forthcoming guidance to States and Territories, and we look forward to continuing to work with NTIA as it shapes the critical challenge processes that will go far toward ‘making or breaking’ the success of the BEAD Program.”

The complete letter can be viewed here.

About ACA Connects: America’s Communications Association – Based in Pittsburgh, ACA Connects is a trade organization representing more than 500 smaller and medium-sized, independent companies that provide broadband, video, and phone services covering 23 million customers, 6 million of which are located in rural and smaller suburban markets across America. Through active participation in the regulatory and legislative process in Washington, D.C., ACA Connects Members work together to advance the interests of their customers and ensure the future competitiveness and viability of their businesses.