[Federal Register Volume 79, Number 224 (Thursday, November 20, 2014)]
[Proposed Rules]
[Pages 69091-69095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27429]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[WC Docket No. 10-90; DA 14-1499]


Proposed Methodology for Connect America High-Cost Universal 
Service Support Recipients To Measure and Report Speed and Latency 
Performance to Fixed Locations

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Wireline Competition Bureau, the 
Wireless Telecommunications Bureau, and the Office of Engineering and 
Technology seek to further develop the record on how compliance with 
speed obligations should be determined for recipients of high-cost 
support that deploy broadband networks to serve fixed locations.

DATES: Comments due December 22, 2014.

ADDRESSES: Interested parties may file comments on or before December 
22, 2014. All pleadings are to reference WC Docket No. 10-90. Comments 
may be filed using the Commission's Electronic Comment Filing System 
(ECFS) or by filing paper copies, by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     People with Disabilities: To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, audio format), send an email to [email protected] or 
call the Consumer & Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (tty).

For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Alexander Minard, Wireline Competition 
Bureau at (202) 418-7400 or TTY (202) 418-0484.

SUPPLEMENTARY INFORMATION: This is a synopsis of the Wireline 
Competition Bureau's Public Notice (Notice) in WC Docket No. 10-90; DA 
14-1499, released October 16, 2014. The complete text of this document 
is available for inspection and copying during normal business hours in 
the FCC Reference Information Center, Portals II, 445 12th Street SW., 
Room CY-A257, Washington, DC 20554. The document may also be purchased 
from the Commission's duplicating contractor, Best Copy and Printing, 
Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, 
telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, 
or via Internet at http://www.bcpiweb.com.

I. Introduction

    1. In this document, the Wireline Competition Bureau, the Wireless 
Telecommunications Bureau, and the Office of Engineering and Technology 
(together, the Bureaus) seek to further develop the record on how 
compliance with speed (also referred to as bandwidth) obligations 
should be determined for recipients of high-cost support that deploy 
broadband networks to serve fixed locations. In addition, the Bureaus 
seek comment on whether the same testing methodologies adopted for 
price cap carriers accepting model-based Phase II support should be 
applied to other recipients of support to serve fixed locations, such 
as rate-of-return providers and those that are awarded Connect America 
support through a competitive bidding process. Finally, the Bureaus 
seek comment on the circumstances that would trigger an audit of the 
speed and latency metrics.

II. Measuring Compliance With Service Obligations

A. Speed Performance Measurement

    2. The record received in response to the 2011 USF/ICC 
Transformation Order and Further Notice of Proposed Rulemaking, 76 FR 
73830, November 29, 2011 and 76 FR 78384, December 16, 2011, on the 
methodology to be implemented for testing compliance with service 
obligations was not well developed. The Bureaus now seek to refresh the 
record on the methodology to be used for demonstrating compliance with 
the speed obligation for ETCs that receive high cost support to deploy 
broadband networks to fixed locations. Should internal network 
management system (NMS) tools be used to measure speed performance? 
Alternatively, should external measurement tools such as Speedtest/
Ookla or Network Diagnostic Tests (NDT) by M-Labs? Are there better and 
more reliable methods of measuring speed?
    3. Internal NMS tools vary among providers. How can the Commission 
ensure that internal NMS tool measurements are valid? Will such tools 
account for multiple transmission

[[Page 69092]]

control protocol (TCP) streams, TCP window sizes, TCP slow start, and 
other factors in speed measurement? How would measurements from such 
tools be verified? Are these types of tools too burdensome or complex 
for speed measurements? Would such tools have any effect on customer 
service if used during peak periods? If external testing is adopted, 
how would measurements be verified? Are there better external 
measurement tools than those identified above?
    4. What testing parameters should be used for speed testing? Should 
they be different for internal and external testing?
    5. What testing parameters should be used to measure broadband 
performance for wireless providers offering service at a given address? 
Should the testing parameters be different if the service utilizes a 
fixed attachment to the building?
    6. The Bureaus propose to require all ETCs subject to broadband 
performance obligations to serve fixed locations to utilize testing 
parameters for speed similar to those already adopted for latency for 
price cap carriers. Specifically, the Bureaus propose to adopt a 
methodology that would require measurements to be made once hourly 
during peak periods, 7:00 p.m. to 11:00 p.m. daily local time, over 
four consecutive weeks, require 95 percent of the observations to be at 
or above the specified minimum speed, define the endpoints for the 
measurement as the customer premises to Commission-designated IXP 
locations, require testing to occur at least annually, and require a 
minimum of 50 randomly selected customers locations to be tested within 
the geographic area being funded in a given state. To the extent 
parties argue that the process adopted for latency testing be adjusted 
and used for speed testing, they should describe with specificity what 
changes should be made. The Bureaus also seek comment on whether the 
data usage in the proposed tests would have a significant effect on 
consumers and, if so, how such effects could be mitigated. Should any 
data caps or monthly usage limits be adjusted to prevent the testing 
from affecting consumers?
    7. The Bureaus propose to allow ETCs, including but not limited to 
price cap carriers, the option of testing compliance with speed 
requirements through the MBA program, similar to what WCB adopted for 
latency obligations. If the Bureaus were to do so, could they apply the 
same conditions and parameters as adopted for latency testing? Would 
any changes be needed?
    8. Should the testing options and parameters be the same for rate-
of-return carriers and providers awarded support through the Phase II 
competitive bidding process as for price cap carriers? If not, what 
should they be and why?
    9. The Bureaus seek to augment the record received in response to 
the 2011 USF/ICC Transformation Order and FNPRM based on the 
considerations outlined above. Specifically, parties such as AT&T and 
Alaska Communications Systems argued that the testing mechanism should 
not require measuring service at all end-user locations. A testing 
mechanism for speed similar to that adopted for latency would only 
require testing at a certain number of locations. Frontier advocated 
that the Commission provide a choice of measurement test options. A 
speed-testing mechanism similar to that adopted for latency would 
provide two options for testing. A number of rural associations stated 
that the Commission should not impose measurement requirements until 
technically feasible, less burdensome testing procedures were 
available. A speed testing mechanism similar to that adopted for 
latency should be easily manageable for even very small carriers. The 
Bureaus seek comment on these tentative conclusions.

B. Latency Performance Testing for Rate-of-Return Carriers and 
Providers Awarded Connect America Support Through Competitive Bidding

    10. The Bureaus seek comment on whether the two methods adopted to 
test price cap carrier compliance with latency service obligations 
should also be used to test compliance with latency service obligations 
for other recipients of high-cost support with a broadband public 
interest obligation to serve fixed locations. If so, should the testing 
parameters be the same for rate-of-return providers and those that are 
awarded Phase II support through a competitive bidding process as 
adopted for price cap carriers? If not, what should those parameters be 
and why?
    11. The latency-testing options adopted for price cap carriers 
should provide at least one readily achievable method suitable for 
small, rural carriers. The Bureaus seek comment on this tentative 
conclusion. In response to the 2011 USF/ICC Transformation FNPRM, rural 
carriers argued that broadband performance should only be measured for 
those portions of the network controlled by the provider or its 
commonly-controlled affiliates. The Bureaus note that in the Phase II 
Price Cap Order, 78 FR 70881, November 27, 2013, WCB rejected this 
argument for price cap carriers because (1) testing only part of the 
network will not demonstrate the quality of service being provided to 
the end user and (2) carriers have a number of options to influence the 
quality of service from their transit and/or peering providers. Would 
that same reasoning be applicable to other providers, such as rate-of-
return carriers and non-traditional providers that may receive support 
through a competitive bidding process?

C. Use of MBA Program for Testing and Reporting

    12. The MBA program developed out of a recommendation by the 
National Broadband Plan to improve the availability of information for 
consumers about their broadband service. The program examines service 
offerings from the largest broadband providers--which collectively 
account for over 80 percent of all U.S. wireline broadband 
connections--using automated, direct measurements of broadband 
performance delivered to the homes of thousands of volunteer broadband 
subscribers. The methodology for the program focuses on measuring 
broadband performance of an Internet service provider's network, 
specifically performance from the consumer Internet access point, or 
consumer gateway, to a close major Internet gateway point. A 
collaborative process involving Commission staff, industry 
representatives, and academics was used to determine the test suite and 
operations for the MBA program.
    13. The MBA program uses whiteboxes deployed to individual 
consumers, called panelists, to collect data on service levels. These 
whiteboxes perform periodic tests to determine the speed and latency of 
the service at a particular panelist's location, and the results of the 
tests are automatically sent to and recorded by an independent vendor. 
Panelists are selected via a process that allows for consumer 
registration and verification by the service provider followed by 
activation as a testing panelist. More than 13,000 whiteboxes have been 
shipped since the MBA program began.
    14. Currently, the MBA program tests wireline offerings of 15 large 
broadband providers and one satellite-based provider. If the Bureaus 
were to adopt a regime in which ETCs subject to broadband public 
interest obligations could demonstrate compliance with broadband 
testing requirements through their MBA results, would that encourage 
additional providers, including smaller providers, to seek to join the 
MBA? Could the MBA accommodate a large

[[Page 69093]]

number of additional participants? Is it feasible for smaller providers 
to participate in the MBA, particularly if they must pay the 
administrative and hardware costs of the whiteboxes? Are these costs 
likely to be greater or less than the cost of performing ping-type 
tests from 50 locations for latency and the testing that will be 
required to verify speed? Would allowing additional providers to join 
the MBA provide more detailed and more accurate information on provider 
performance at lower total cost?
    15. If additional providers join the MBA program for performance 
testing, should their data be make public and reported in the annual 
MBA reports as is done for other MBA providers? Should the MBA program 
consider creating a separate category of membership for providers that 
want to limit testing to Connect America-supported areas?
    16. The Bureaus seek comment on these and any other issues 
surrounding additional provider participation in the MBA program.

D. Commission-Developed Testing Mechanism

    17. In the event that joining the MBA program proves infeasible for 
additional providers, the Bureaus seek comment on whether the 
Commission should implement a performance testing platform specifically 
for Connect America-supported broadband services. One possibility is to 
implement an oversight mechanism that would be similar to the MBA 
program. Like the MBA program, this could be a hardware-based test 
infrastructure administered by one or more service vendors with 
whiteboxes deployed to consumers throughout Connect America-supported 
areas. Having a single entity, such as USAC, procure the necessary 
vendor and infrastructure to administer this program would minimize the 
overall cost of the program as well as the costs to participating 
providers. The Bureaus seek comment on whether such a program would be 
feasible. If so, should it be similar to the MBA program, or is there a 
better way to measure broadband performance?
    18. If the Commission were to implement such a testing mechanism, 
should all ETCs subject to broadband public interest obligations to 
serve fixed locations be required to participate? To the extent 
commenters argue that any ETCs should be exempt, they should identify 
with specificity the costs and benefits of requiring them to 
participate, and identify alternative means of achieving the 
Commission's oversight objectives.
    19. The Bureaus estimate that the total costs for an MBA-type 
performance oversight program for ETCs receiving high-cost support to 
serve fixed locations would be approximately $4.2 million, which would 
include the necessary hardware and software as well as an initial 
allocation of 5,000 whiteboxes, in the first year and approximately 
$5.9 million each year thereafter (which incorporates an additional 
5,000 whiteboxes per year). Our total cost calculation was based on the 
following estimates:

------------------------------------------------------------------------
                                    Year 1
                                   expenses      Annual  expenses  after
                                  (millions)        year 1 (millions)
------------------------------------------------------------------------
Whiteboxes (client testing     $1.2...........  $1
 devices).
Core Servers.................  1.7............  1.65
Program Administrative         1.3............  1.3
 Expenses (could be performed
 by USAC).
                              ------------------------------------------
    Total Cost...............  4.2............  3.9
------------------------------------------------------------------------

The cost estimates above are based on having a single entity contract 
for the necessary hardware and services to minimize costs through 
streamlined administration and bulk hardware purchases. If the 
Commission were to implement such a centralized testing program, should 
these costs be borne by participating providers or by USAC as part of 
its oversight over the universal service fund? Should USAC pay the 
costs of the core servers, with participating providers paying the 
costs of the whiteboxes deployed in their service areas? If USAC were 
to pay all of the equipment costs, including the whiteboxes, the 
Bureaus anticipate that the only cost for providers would be primarily 
to verify the services of the panelists selected in a particular 
provider's service territory.
    20. If the Commission were to adopt such an approach, how many 
whiteboxes should be deployed in each supported area? Should the number 
be the same for all providers, vary based on the number of customers in 
the supported area, or be based on some other calculation? Should 
individual consumers or consumer groups located in areas served by a 
Connect America-supported provider be allowed to participate in such an 
MBA-type mechanism by purchasing their own whiteboxes? Such ``citizen 
testing'' would allow interested individuals to evaluate the quality of 
their services while providing additional testing data.
    21. The Bureaus seek comment on the initial performance measurement 
test suite that should be used, if the Commission were to implement an 
MBA-type testing mechanism. The MBA's current test suite includes 13 
tests that measure various aspects of network performance with respect 
to speed and latency and was developed on a consensus basis by 
academics, regulators, and industry participants. Would the MBA's test 
suite be an appropriate for a Connect America testing mechanism, or 
could it be modified in some fashion? What aspects of the MBA test 
suite are necessary to meet the Commission's objectives that ETCs meet 
their broadband public interest obligations?
    22. The MBA program has found that allowing consumers with 
whiteboxes (referred to as panelists) access to their testing data is 
an incentive to obtaining a high number of volunteers. Should a 
Commission-designed testing mechanism for high-cost recipients allow 
end user participants access to their own testing data? MBA results are 
currently made publically available via the Commission's Web site. 
Should the Commission publish test results? Making such data public 
would allow consumers and policy makers to evaluate whether ETCs are 
meeting their service obligations and allow comparisons of service 
quality among providers. Is there any reason that such performance 
results should be kept confidential? If so, should the results be 
treated as confidential for a particular period of time?

[[Page 69094]]

III. Auditing Speed and Latency

    23. In the USF/ICC Transformation Order, the Commission concluded 
that the results of speed and latency metric testing ``will be subject 
to audit.'' The Bureaus seek to further develop the record on 
procedures for implementing this requirement for all recipients of 
Connect America funding. In particular, the Bureaus seek comment on how 
to incorporate this requirement into the existing Beneficiary 
Compliance Audit Program (BCAP), and whether additional audits 
specifically focused on broadband performance should be implemented 
outside of BCAP.
    24. High-cost recipients today are subject to random and for-cause 
USAC audits. The Bureaus seek comment on the circumstances that would 
warrant examining broadband performance for cause. In particular, what 
events should trigger a for cause audit of speed and latency metrics? 
For example, failure to file a certification that service obligations 
are being met or a certification that standards are not being met would 
likely require an immediate audit. Similarly, because MBA results are 
publicly available, should MBA test results that demonstrate a failure 
to meet service obligations trigger an audit? Should consumer or other 
credible complaints regarding the quality of service result in an 
audit? If customer complaints are used to initiate an audit, the 
Bureaus seek comment on how this should be done. Should complaints to 
state/local regulatory agencies, the Commission, and/or public watchdog 
organizations trigger audits? If so, how many complaints over what time 
period and what type of complaints should be triggering events for a 
performance audit? Should requests from local, state, or tribal 
authorities be sufficient to trigger an audit? Are there other events 
that should trigger an audit? Proposed audit triggers should address 
both ensuring that performance standards are met and minimizing 
administrative costs.
    25. In addition, the Bureaus seek comment on whether a provider 
whose audit demonstrates a need for ongoing monitoring be required to 
pay the costs of this additional monitoring. Should results of audits 
be made publicly available? If not, what justifications support keeping 
such results private and for how long?

IV. Procedural Matters

    26. Initial Regulatory Flexibility Act Analysis. The USF/ICC 
Transformation Order included an Initial Regulatory Flexibility 
Analysis (IRFA) pursuant to 5 U.S.C. 603, exploring the potential 
impact on small entities of the Commission's proposal. The Bureaus 
invite parties to file comments on the IRFA in light of this additional 
notice.
    27. Initial Paperwork Reduction Act of 1995 Analysis. This document 
seeks comment on a potential new or revised information collection 
requirement. If the Commission adopts any new or revised information 
collection requirement, the Commission will publish a separate notice 
in the Federal Register inviting the public to comment on the 
requirement, as required by the Paperwork Reduction Act of 1995, Public 
Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small 
Business Paperwork Relief Act of 2002, Public Law 107-198, the 
Commission seeks specific comment on how it might ``further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.''
    28. Filing Requirements. Pursuant to Sec. Sec.  1.415 and 1.419 of 
the Commission's rules, interested parties may file comments on or 
before the dates indicated on the first page of this document. Comments 
may be filed using the Commission's Electronic Comment Filing System 
(ECFS).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. If more than one docket 
or rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    29. Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
    [ssquf] All hand-delivered or messenger-delivered paper filings for 
the Commission's Secretary must be delivered to FCC Headquarters at 445 
12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes must be 
disposed of before entering the building.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street SW., Washington, DC 20554.
    30. People with Disabilities: To request materials in accessible 
formats for people with disabilities (Braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 
418-0432 (tty).
    31. In addition, one copy of each pleading must be sent to each of 
the following:
    (1) Alexander Minard, Telecommunications Access Policy Division, 
Wireline Competition Bureau, 445 12th Street SW., 5-B442, Washington, 
DC 20554; email: [email protected].
    (2) Suzanne Yelen, Industry Analysis and Technology Division, 
Wireline Competition Bureau, 445 12th Street SW., Room 6-B115, 
Washington, DC 20554; email: [email protected].

[[Page 69095]]

    32. The proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. Persons 
making ex parte presentations must file a copy of any written 
presentation or a memorandum summarizing any oral presentation within 
two business days after the presentation (unless a different deadline 
applicable to the Sunshine period applies). Persons making oral ex 
parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule Sec.  1.1206(b). In proceedings governed 
by rule Sec.  1.49(f) or for which the Commission has made available a 
method of electronic filing, written ex parte presentations and 
memoranda summarizing oral ex parte presentations, and all attachments 
thereto, must be filed through the electronic comment filing system 
available for that proceeding, and must be filed in their native format 
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this 
proceeding should familiarize themselves with the Commission's ex parte 
rules.

Federal Communications Commission.
Ryan B. Palmer,
Chief, Telecommunications Access Policy Division, Wireline Competition 
Bureau.
[FR Doc. 2014-27429 Filed 11-19-14; 8:45 am]
BILLING CODE 6712-01-P