[Federal Register Volume 82, Number 47 (Monday, March 13, 2017)]
[Proposed Rules]
[Pages 13413-13418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-04988]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[WC Docket No. 10-90, WT Docket No. 10-208; FCC 17-11]


Connect America Fund; Universal Service Reform--Mobility Fund

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission seeks comment on the 
parameters for the process in determining whether areas are eligible 
for funding under the Mobility Fund Phase II. The Commission 
established the framework for the Mobility Fund Phase II in a Report 
and Order--adopted concurrently with the Further Notice of Proposed 
Rulemaking (Further Notice)--but had remaining questions regarding the 
process in which entities may challenge the areas eligible for support. 
Therefore, the Commission anticipates that additional comment will 
allow it to make more informed decisions on the challenge process, 
thereby making a more robust, targeted challenge process that 
efficiently resolves disputes about areas eligible for MF-II support.

DATES: Comments are due on or before April 12, 2017, and reply comments 
are due on or before April 27, 2017.

ADDRESSES: All filings in response to the Further Notice must refer to 
WC Docket No. 10-90 and WT Docket No. 10-208. The Commission strongly 
encourages parties to develop responses to the Further Notice that 
adhere to the organization and structure of the Further Notice. 
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 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. Filers must submit two 
additional copies for each additional docket or rulemaking number. 
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

[[Page 13414]]

filings must be addressed to the Commission's Secretary, Office of the 
Secretary, Federal Communications Commission. 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. 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. U.S. Postal Service first-class, 
Express, and Priority mail must be addressed to 445 12th Street SW., 
Washington, DC 20554.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
    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: Wireless Telecommunications Bureau, 
Auction and Spectrum Access Division, Mark Montano, at (202) 418-0660.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking (Further Notice) in WC Docket No. 
10-90, WT Docket No. 10-208, FCC 17-11, adopted on February 23, 2017, 
and released on March 7, 2017. The proceeding related to this Further 
Notice 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 section 
1.1206(b). In proceedings governed by rule section 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.

Initial Paperwork Reduction Act of 1995 Analysis

    The Further Notice contains proposed new or modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and the 
Office of Management and Budget (OMB) to comment on the information 
collection requirements contained in this document, as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. In addition, 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific 
comment on how it might further reduce the information collection 
burden for small business concerns with fewer than 25 employees.

I. Introduction

    1. In the Further Notice, the Commission seeks further comment on 
the parameters for the process in determining whether areas are 
eligible for funding under the Mobility Fund Phase II (MF-II). In the 
months leading up to adoption of the MF-II Order, the Commission 
received a number of specific record filings, including detailed, 
technical proposals, regarding the process for challenging whether 
areas will be eligible for MF-II funding. In order to make more 
informed decisions on the challenge process, the Commission sought 
further comment on the parameters for the challenge process for MF-II.
    2. The Commission commits to a robust, targeted challenge process 
that efficiently resolves disputes about areas eligible for MF-II 
support. The Commission's overarching objective is to quickly 
transition away from the legacy competitive eligible telecommunications 
carrier (CETC) support system, where support was never awarded based on 
the need to support the deployment of mobile broadband, to a system 
directed to that policy goal. The Commission's commitment to fiscal 
responsibility requires that it not fund areas that already have 4G LTE 
from an unsubsidized provider. At the same time, the Commission wants 
to ensure that areas that may require support for qualified 4G LTE are 
eligible for, and potentially receive, MF-II support. The challenge 
process is an integral part of that determination, to build upon and 
improve provider-filed and -certified Form 477 data, which remain the 
best available data source.
    3. The Commission recognizes that any challenge process will 
necessarily involve tradeoffs in terms of burdens imposed on interested 
parties and the Commission, as well as the timeliness and accuracy. As 
such, the Commission is committed to designing the challenge process so 
that it is as efficient as possible. It does not want to unduly burden 
challenging parties by creating so high an evidentiary standard that it 
deters stakeholders from challenging even the most obviously mis-
categorized areas. Conversely, the Commission is cognizant of the 
burdens imposed on parties whose coverage is challenged merely on the 
basis of anecdotal, unsystematic claims--the burdens of having to spend 
resources to defend coverage areas in Form 477 filings that they have 
already certified as accurate. The Commission also will take into 
account that smaller providers will have fewer resources available, and 
therefore specifically seeks comment on ways in which the burden of the 
challenge process can be reduced for smaller providers.
    4. Additionally, the challenge process must be administratively 
efficient. As discussed in the MF-II Order, there is a need to move 
forward rapidly with MF-II to retarget universal service support being 
provided to mobile carriers; the challenge process must not impede the 
implementation of MF-II support. There is a demonstrated need for MF-II 
support in many areas of the country where support is not provided 
today, and that support must be disbursed to unserved areas without 
unreasonable delay.

[[Page 13415]]

    5. The Commission seeks comment on these guiding principles for the 
challenge process and whether it should take into consideration 
additional principles as it designs the process. In addition, the 
Commission seeks comment on the extent to which these principles are 
furthered by the specific parameters for the challenge process outlined 
in the Further Notice.
    6. In addition, the Commission recognizes that no matter how well 
engineered, no wireless network has 100 percent reliability. Even in 
areas of generally good coverage there may be small regions where 
performance is less than desired, especially due to natural or 
manufactured obstructions, areas far inside buildings, basements, and 
so forth. In light of these network characteristics, the Commission 
asks what standards and guidance will help staff in the Commission's 
Wireless Telecommunications Bureau evaluate challenges and expedite 
their resolution?
    7. The Commission seeks general comment on a couple of potential 
structures for the challenge process. While the Further Notice presents 
them as separate options, the Commission makes clear that it is not 
proposing to adopt either option wholesale. Rather, the Commission 
intends to take the most effective parameters from these various 
options, as well as possible additional alternatives, to assemble a 
``best in class'' structure for the challenge process.

II. Option A

    8. Initial Challenge. The challenge would consist of a 
certification by the challenging party that in a specific area, the 
party has a good faith belief, based on actual knowledge or past data 
collection, that there is not 4G LTE with at least 5 Mbps download 
speed coverage as depicted on Form 477. The specific area challenged 
may be for a partial census block or full census block(s). In support 
of such a challenge, the party would need to file a shapefile in a 
standard format of the challenged area. What, if any, evidence should 
be required in support of an initial challenge? What standards should 
be required for the submission of an initial challenge?
    9. A challenge of an area could be made by either a carrier that is 
submitting a challenge within its licensed area or a state or local 
government that is submitting a challenge within its jurisdiction, 
potentially through a state public utilities commission (PUC). The 
Commission seeks comment on whether additional parties (carriers that 
are potential entrants, consumers, etc.) should be allowed to submit 
challenges.
    10. The Commission seeks comment regarding whether it should 
require that the challenged area be at least a minimum size. Would 
automatically dismissing de minimis challenges (e.g., challenges that 
address a very small percentage of the square miles in a given census 
block group or census tract) further administrative efficiency? If so, 
what should the Commission set as the minimum size for a challenge?
    11. Moreover, the Commission seeks comment regarding whether it 
should permit challenges for areas that the Wireless Telecommunications 
Bureau and the Wireline Competition Bureau (the Bureaus) identify as 
eligible (i.e., areas where the Form 477 data show no qualified 4G LTE 
coverage from an unsubsidized carrier). The Commission anticipates that 
there would be far fewer such challenges than for ineligible areas 
since the challenging party would likely be the same carrier that 
submitted--and certified--the Form 477 data that allegedly shows too 
small a coverage area. Should the Commission's challenge process allow 
what are in essence Form 477 corrections? Should those challenges be 
limited to corrections in the Bureaus' processing of the Form 477 data 
as filed?
    12. Propagation Map Response. A challenged carrier may respond by 
submitting an engineering (propagation) map that demonstrates expected 
coverage for the challenged area. The submission must be substantiated 
by the certification of a qualified engineer, under penalty of perjury. 
The Commission seeks comment on the specific technical parameters for 
the propagation model and the shapefile, and how much time challenged 
carriers would require to respond. Should the Commission adopt a signal 
strength threshold for the map? Should the measure be -90 dB (Received 
Signal Strength Indicator or RSSI) or a different amount? One 
commenter, for example, has proposed that a coverage map for the 
challenge process use a -85 dB measure. Should any signal strength be 
set based on RSSI or Reference Signal Received Power (RSRP) 
measurements? Is there a particular resolution that the Commission 
should require for the shapefile? Should the Commission specify any 
other parameters?
    13. The Commission seeks comment on the utility of such shapefiles 
in the challenge process. It recognizes that such maps do not actually 
portray the consumer's experience throughout the area at issue, given 
in part that a consumer's experience depends on variables other than 
signal strength. Nevertheless, such maps may be a reasonable step to 
build into the challenge process for the purpose of narrowing the areas 
requiring further evidence to resolve the challenge.
    14. Submission of Evidence of Actual Speeds Being Provided to 
Consumers. Once the challenged carrier has timely submitted a map that 
shows the challenged area to be within the contour of coverage, the 
original challenger may submit actual speed data (potentially with 
supporting signal strength data) from hardware- or software-based drive 
tests or app-based tests (e.g., such as those from established 
companies such as Ookla, Rootmetrics, Nielsen, and Mosaik) that 
spatially cover the challenged area. This submission must also be 
substantiated by the certification of a qualified engineer, under 
penalty of perjury. What parameters should be specified to ensure that 
the evidence accurately reflects consumer experience in the challenged 
area? For instance, should the number of test locations be 
proportionate to the amount of area challenged? How many tests should 
be done per location? What other parameters should be included in 
specifying how these tests are done?
    15. Once a challenger submits evidence of actual speeds, what 
evidence of actual speeds should be accepted from the provider whose 
coverage is being challenged? How much time should be allowed for the 
submission of actual speed data?
    16. Resolution of Challenge. A party seeking to challenge the 
Bureaus' initial determination of eligibility for MF-II support would 
have the burden of proving its claims by a preponderance of the 
evidence (i.e., enough evidence to make it more likely than not that 
the status the claimant seeks to prove is true). The Commission seeks 
comment on this evidentiary standard. Should it require challengers to 
meet a higher standard, such as clear and convincing evidence? Should 
the submission of evidence of actual speeds be permitted, or required, 
and how should that affect the resolution of challenges?

III. Option B

    17. In a recent filing, a large, mid-sized, and small provider 
submitted a joint proposal for how the Commission should structure the 
challenge process. The following parameters are based on that joint 
proposal.
    18. Challenge. Under the joint proposal, challenging parties would 
have 60 days following the Commission's release of a list of eligible 
areas to submit evidence, which would be filed in the public record. 
Parties would be permitted to challenge areas

[[Page 13416]]

that they claim are incorrectly identified as ineligible or eligible. 
Service providers and governmental entities located in or near the 
relevant areas would be only parties eligible to participate.
    19. Also under the joint proposal, the evidence submitted in a 
challenge must include a map(s) in shapefile format, of the challenged 
area. In addition, challenging parties must report actual download 
speed test data using either actual speed tests or transmitter 
monitoring data. For the actual speed tests, data from app-based tests 
(many of which are freely available on consumer devices), and both 
hardware- and software-based drive tests would be permitted, so long as 
they met certain standards. For example, with app-based tests and 
software-based drive tests, late-model LTE devices compatible with a 
particular carrier's LTE network could be used to measure the speed. 
What requirements should the Commission adopt for speed tests to ensure 
that they will be representative of coverage in a disputed area, 
including those pertaining to time and distance between tests? In 
considering these issues, the Commission will need to balance the 
accuracy of any challenge, the burdens on affected parties, and the 
timeliness of resolution. The challenge evidence must be certified 
under penalty of perjury.
    20. Response. Under the joint proposal, challenged parties would 
have 30 days to file their certified responses. The responses must meet 
the same requirements as those for challenging parties--i.e., coverage 
shapefiles and speed test data.
    21. The Commission seeks comment on the burden of requiring this 
level of response from challenged parties. In particular, should the 
Commission require the same or reduced evidence from those parties that 
do not have the burden of proof? The Commission acknowledges that 
requiring equivalent data from both parties is likely to assist the 
Bureaus in resolving challenges more efficiently. However, are those 
efficiency gains outweighed by the burden placed on the challenged 
party?
    22. Resolution. Under the joint proposal, the Commission would 
reach decisions based on the weight of the evidence and determine 
whether any changes to its initial list of eligible areas is warranted.

IV. Additional Options

    23. The Commission seeks comment as well on any additional options 
that parties may wish to propose. For example, one proposal would 
require all Form 477 filers whose filings represent a basis for 
declaring certain areas not eligible for MF-II support to (1) 
supplement those filings within 60 days of the release of a preliminary 
list of areas not eligible for MF-II support and (2) notify other 
service providers in those areas of their supplemented Form 477 filings 
and their declaration that they provide voice and LTE service in those 
areas. Those other service providers would have 30 days to challenge 
those declarations of service.
    24. The Commission reiterates that it is not necessarily going to 
adopt either of the options discussed in the Further Notice and 
summarized above. Therefore, the Commission urges commenters to come up 
with additional proposals, including consensus proposals that 
accommodate the interests of multiple parties. This is particularly 
important to the extent the options discussed above do not adequately 
address issues that are essential to the structuring of an effective 
and efficient challenge process.

V. Initial Regulatory Flexibility Analysis

    25. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on a substantial number of small entities from the policies and rules 
proposed in this Further Notice of Proposed Rulemaking (Further 
Notice). The Commission requests written public comment on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments provided in the Further Notice. The 
Commission will send a copy of the Further Notice, including this IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration 
(SBA).

A. Need for, and Objectives of, the Proposed Rules

    26. In the MF-II Order, the Commission adopted the framework for 
moving forward with the Mobility Fund Phase II (MF-II) and Tribal 
Mobility Fund Phase II, which will allocate up to $4.53 billion over 
the next decade to advance the deployment of 4G LTE service to areas 
that are so costly that the private sector has not yet deployed there 
and to preserve such service where it might not otherwise exist. The 
funding for this effort will come from the redirection of legacy 
subsidies and distributed using a market-based, multi-round reverse 
auction and will come with defined, concrete compliance requirements so 
that rural consumers will be adequately served by the mobile carriers 
receiving universal service support.
    27. In the Further Notice, the Commission proposes a robust 
challenge process to supplement the Commission's coverage maps and to 
ensure that it is targeting support where it is most needed. 
Specifically, because record filings have become more specific the past 
several months, including detailed, technical proposals regarding the 
challenge process in the past few weeks, the Commission seeks further 
comment on the parameters for the challenge process for MF-II. The 
Commission is committed to a robust, targeted challenge process that 
efficiently resolves disputes about areas eligible for MF-II support. 
Its overarching objective is to quickly transition away from the legacy 
CETC support system, where support was never awarded based on the need 
to support the deployment of mobile broadband, to a system directed to 
that policy goal. The challenge process is an integral part of that 
determination, to build upon and improve provider-filed and -certified 
Form 477 data, which remain the best available data source. The 
Commission, therefore, seeks general comment on a couple of potential 
structures for the challenge process. While the Commission has 
presented them in this Further Notice as separate options, it is not 
proposing to adopt either option wholesale. Rather, the Commission 
intends to take the most effective parameters from these various 
options, as well as possible additional alternatives, to assemble a 
``best in class'' structure for the challenge process.

B. Description and Estimate of the Number of Small Entities To Which 
the Proposed Rules Will Apply

    28. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A ``small-business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    29. Small Entities, Small Organizations, Small Governmental 
Jurisdictions. The Commission's proposed actions, over time, may affect

[[Page 13417]]

small entities that are not easily categorized at present. The 
Commission therefore describe, at the outset, three comprehensive small 
entity size standards that could be directly affected herein. As of 
2014, according to the SBA, there were 28.2 million small businesses in 
the U.S., which represented 99.7% of all businesses in the United 
States. Additionally, a ``small organization'' is generally ``any not-
for-profit enterprise which is independently owned and operated and is 
not dominant in its field.'' Nationwide, as of 2007, there were 
approximately 1,621,215 small organizations. Finally, the term ``small 
governmental jurisdiction'' is defined generally as ``governments of 
cities, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' Census 
Bureau data for 2012 indicate that there were 89,476 local governmental 
jurisdictions in the United States. The Commission estimates that, of 
this total, as many as 88,761 entities may qualify as ``small 
governmental jurisdictions.'' Thus, the Commission estimates that most 
governmental jurisdictions are small.
    30. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
appropriate size standard under SBA rules is that such a business is 
small if it has 1,500 or fewer employees. For this industry, census 
data for 2012 show that there were 967 firms that operated for the 
entire year. Of this total, 955 firms had employment of 999 or fewer 
employees and 12 had employment of 1000 employees or more. Thus under 
this category and the associated size standard, the Commission 
estimates that the majority of wireless telecommunications carriers 
(except satellite) are small entities. Similarly, according to 
internally developed Commission data, 413 carriers reported that they 
were engaged in the provision of wireless telephony, including cellular 
service, Personal Communications Service, and Specialized Mobile Radio 
Telephony services. Of this total, an estimated 261 have 1,500 or fewer 
employees, and 152 have more than 1,500 employees. Thus, using 
available data, the Commission estimates that the majority of wireless 
firms can be considered small.
    31. Internet Service Providers. Since 2007, these services have 
been defined within the broad economic census category of Wired 
Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for Wired Telecommunications Carriers, which consists of all such firms 
having 1,500 or fewer employees. Census Bureau data for 2012 shows that 
there were 3,117 firms that operated for the entire year. Of this 
total, 3,083 firms had employment of 999 or fewer employees, and 34 
firms had employment of 1,000 employees or more. Thus, under this size 
standard, the majority of firms in this industry can be considered 
small. In addition, while Internet Service Providers (broadband) are a 
subcategory of the broader category of Wired Telecommunications 
Carrier, there is Census Bureau data specific to Internet Service 
Providers (broadband). For 2012, Census Bureau data shows there were a 
total of 1,180 firms in the subcategory of Internet Service Providers 
(broadband) that operated for the entire year. Of this total, 1,178 
firms had employment of 999 or fewer employees, and two firms had 
employment of 1000 employees or more. Consequently, the Commission 
estimates that the majority of these firms are small entities that may 
be affected by rules adopted pursuant to the MF-II Order.

C. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    32. In the Further Notice, the Commission seeks further comment on 
the parameters for the challenge process for MF-II. It seeks general 
comment on a couple of potential structures for the challenge process: 
(1) A proposal by one mobile provider (Option A); and (2) a joint 
proposal by three providers (Option B). The Commission seeks comment as 
well on any additional options that parties may wish to propose, such 
as, for instance, a proposal that would require all Form 477 filers 
whose filings represent a basis for declaring certain areas not 
eligible for MF-II support to supplement those filings within 60 days 
of the release of a preliminary list of areas not eligible for MF-II 
support. The Commission urges commenters to come up with additional 
proposals, including consensus proposals that accommodate the interests 
of multiple parties.
    33. Under Option A, the challenge would consist of a certification 
by the challenging party that in a specific area, the party has a good 
faith belief, based on actual knowledge or past data collection, that 
there is not 4G LTE with at least 5 Mbps download speed coverage as 
depicted on Form 477. In support of such a challenge, the party would 
need to file a shapefile in a standard format of the challenged area. A 
challenge of an area could be made by either a carrier that is 
submitting a challenge within its license area or a state or local 
government that is submitting a challenge within its jurisdiction, 
potentially through a state PUC. A challenged carrier may respond by 
submitting an engineering (propagation) map that demonstrates expected 
coverage for the challenged area. The submission must be substantiated 
by the certification of a qualified engineer, under penalty of perjury. 
Once the challenged carrier has timely submitted a map that shows the 
challenged area to be within the contour of coverage, the original 
challenger may submit actual speed data (potentially with supporting 
signal strength data) from hardware- or software-based drive tests or 
app-based tests (e.g., such as those from established companies such as 
Ookla, Rootmetrics, Nielsen, and Mosaik) that spatially cover the 
challenged area. This submission must also be substantiated by the 
certification of a qualified engineer, under penalty of perjury. A 
party seeking to challenge the Bureaus' initial determination of 
eligibility for MF-II support would have the burden of proving its 
claims by a preponderance of the evidence.
    34. Under Option B, challenging parties would have 60 days 
following the Commission's release of a list of eligible areas to 
submit evidence, which would be filed in the public record. Service 
providers and governmental entities located in or near the relevant 
areas would be only parties eligible to participate. The evidence 
submitted in a challenge must include a map(s) in shapefile format, of 
the challenged area. In addition, challenging parties must report 
actual download speed test data using either actual speed tests or 
transmitter monitoring data. For the actual speed tests, data from app-
based tests (many of which are freely available on consumer devices), 
and both hardware- and software-based drive

[[Page 13418]]

tests would be permitted, so long as they met certain standards. The 
challenge evidence must be certified under penalty of perjury. 
Challenged parties would have 30 days to file their certified 
responses. The responses must meet the same requirements as those for 
challenging parties--i.e., coverage shapefiles and speed test data. The 
Commission would reach decisions based on the weight of the evidence 
and determine whether any changes to its initial list of eligible areas 
is warranted.

D. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    35. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives, among others: ``(1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) an 
exemption from coverage of the rule, or any part thereof, for small 
entities.'' The Commission expects to consider all these factors when 
it has received substantive comment from the public and potentially 
affected entities.
    36. The Commission has made an effort to anticipate the challenges 
faced by small entities in complying with its rules. For example, the 
Commission specifically notes that smaller providers will have fewer 
resources available, and therefore specifically seeks comment on ways 
in which it can reduce the burden of the challenge process on smaller 
providers. The Commission also seeks comment on specific principles of 
the challenge proposals and ways to make them as efficient as possible 
for all interested parties, including small entities.
    37. Option A. In order to further administrative efficiency, the 
Further Notice seeks comment on whether the Commission should require 
that the challenged area be at least a minimum size and whether it 
should automatically dismiss de minimis challenges (e.g., challenges 
that address a very small percentage of the square miles in a given 
census block group or census tract). The Further Notice also seeks 
comment regarding whether the Commission should permit challenges for 
areas that the Bureaus identify as eligible (i.e., areas where the Form 
477 data show no qualified 4G LTE coverage from an unsubsidized 
carrier), which could further promote efficiencies for all parties, 
including small entities. The Commission emphasizes that there would be 
far fewer such challenges than for ineligible areas since the 
challenging party would likely be the same carrier that submitted--and 
certified--the Form 477 data that allegedly shows too small a coverage 
area. Recognizing the burden that may be placed on parties responding 
to challenges and rebuttals, including small entities, the Further 
Notice requests comment on the specific technical parameters that must 
be provided and how much time challenged carriers, or original 
challengers, would require to respond.
    38. Option B. In addition to seeking comment on the proposals of 
Option B, the Commission asks what requirements it should adopt for 
speed tests to ensure that they will be representative of coverage in a 
disputed area, including those pertaining to time and distance between 
tests. The Commission notes that it will need to balance the accuracy 
of any challenge with the burdens on affected parties, including small 
entities, and the timeliness of resolution. The Commission also seeks 
comment on whether the burden of proof should be the same or reduced 
for challenged parties, including small entities, recognizing that 
efficiency gains could be outweighed by the burden placed on the 
challenged party.
    39. More generally, the Commission expects to consider the economic 
impact on small entities, as identified in comments filed in response 
to the Further Notice and the IRFA contained therein, in reaching its 
final conclusions and taking action in this proceeding. The proposals 
and questions laid out in the Further Notice were designed to ensure 
the Commission has a complete understanding of the benefits and 
potential burdens associated with the different actions and methods.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2017-04988 Filed 3-10-17; 8:45 am]
 BILLING CODE 6712-01-P