[Federal Register Volume 84, Number 236 (Monday, December 9, 2019)]
[Rules and Regulations]
[Pages 67220-67236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26448]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[WC Docket No. 10-90; FCC 19-104]


Connect America Fund

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) reviews performance measures established by the Wireline 
Competition Bureau (WCB), the Wireless Telecommunications Bureau, and 
the Office of Engineering and Technology (collectively the Bureaus) for 
recipients of Connect America Fund (CAF) high-cost universal service 
support to ensure that those standards strike the right balance between 
ensuring effective use of universal service funds while granting the 
flexibility providers need given the practicalities of network 
deployment in varied circumstances.

DATES: Effective January 8, 2020.

FOR FURTHER INFORMATION CONTACT: Suzanne Yelen, Wireline Competition 
Bureau, (202) 418-7400 or TTY: (202) 418-0484.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration in WC Docket No. 10-90; FCC 19-104, adopted on 
October 25, 2019 and released on October 31, 2019. The full text of 
this document is available for public inspection during regular 
business hours in the FCC Reference Center, Room CY-A257, 445 12th 
Street SW, Washington, DC 20554 or at the following internet address: 
https://docs.fcc.gov/public/attachments/FCC-19-104A1.pdf

I. Introduction

    1. The Commission has long recognized that ``[a]ll Americans 
[should] have access to broadband that is capable of enabling the kinds 
of key applications that drive the Commission's efforts to achieve 
universal broadband, including education (e.g., distance/online 
learning), health care (e.g., remote health monitoring), and person-to-
person communications (e.g., Voice over internet Protocol (VoIP) or 
online video chat with loved ones serving overseas).'' To that end, the 
Commission has invested significant Universal Service Fund support for 
the deployment of broadband-capable networks in high cost, rural areas.
    2. But only fast and responsive networks will allow Americans to 
fully realize the benefits of connectivity. That is why the Commission 
requires recipients of universal service support in high cost areas to 
deploy broadband networks capable of meeting minimum service standards. 
These standards protect taxpayers' investment and ensure that carriers 
receiving this support deploy networks that meet the performance 
standards they promised to deliver to rural consumers. At the same 
time, the Commission recognizes that each carrier faces unique 
circumstances, and that one set of prescriptive rules may not make 
sense for every one of them. To accommodate this practical reality, the 
Commission's rules provide flexibility, taking into account the 
operational, technical, and size differences among providers when 
establishing minimum standards, to ensure that even the smallest rural 
carriers can meet testing requirements without facing excessive 
burdens.
    3. In the Order on Reconsideration, the Commission reviews 
performance measures established by the Bureaus for recipients of CAF 
high-cost universal service support to ensure that those standards 
strike the right balance between ensuring effective use of universal 
service funds while granting the flexibility providers need given the 
practicalities of network deployment in varied circumstances. Several 
petitions for reconsideration and applications for review of the 
Performance Measures Order, 83 FR 42052, August 20, 2018, propose 
changes to these performance measures. Here, the Commission rejects the 
proposed changes where it finds that the Bureaus' approach strikes the 
right balance. Where the Commission finds that the Bureaus' approach 
does not--for example, where it concludes that greater flexibility is 
warranted than was offered under the Bureaus' original methodology--the 
Commission adjusts its rules accordingly. Finally, the Commission 
clarifies the Bureaus' approach where doing so will help resolve 
stakeholder confusion.

II. Discussion

    4. In the Order on Reconsideration, the Commission reexamines each 
of the described performance measure requirements in this document. As 
a result, the Commission adopts several modifications. The Commission 
believes these changes will alleviate concerns expressed by carriers by 
increasing the time for carriers to meet certain deadlines and further 
minimizing the costs associated with compliance, yet still ensure that 
carriers meet their performance obligations. In short, the refinements 
to the Bureau's approach adopted in the Performance Measures Order will 
further the overarching goal of the Performance Measures Order; namely, 
to ensure that carriers deliver broadband services with the speed and 
latency required while providing flexibility to enable carriers of all 
sizes to choose how to conduct the required performance testing in the 
manner most appropriate for each individual carrier.
    5. Under the Performance Measures Order, all high-cost support 
recipients serving fixed locations must perform speed and latency tests 
from the customer premises of an active subscriber to a remote test 
server located at or reached by passing through an FCC-designated 
internet Exchange Point (IXP). In the USF/ICC Transformation Order, 76 
FR 73830, November 29, 2011, the Commission decided that speed and 
latency should be measured on each eligible telecommunications carriers 
(ETCs) access network from the end-user interface to the nearest 
internet access point, i.e., the internet gateway, which is the closest 
peering point between the broadband provider and the public internet 
for a given consumer connection. Subsequently, in the CAF Phase II 
Price Cap Service Obligation Order, 78 FR 70881, November 27, 2013, WCB 
stated that latency should be tested to an IXP, defined as occurring in 
any of ten different U.S. locations, almost all of which are locations 
used in the MBA program because they are geographically distributed 
major peering locations. The Bureaus expanded the list to permit 
testing to six additional metropolitan areas to ensure that most 
mainland U.S. locations are within 300 miles of an FCC-designated IXP 
and that all are within approximately 500 air miles of one. Further, 
the Bureaus permitted providers to use any FCC-

[[Page 67221]]

designated IXP for testing purposes, rather than limiting testing to 
the provider's nearest IXP. Providers serving non-contiguous areas 
greater than 500 air miles from an FCC-designated IXP were also 
permitted to conduct testing between the customer premises and the 
point at which traffic is aggregated for transport to the continental 
U.S.
    6. The Commission agrees with the Bureaus that the speed and 
latency of networks of carriers receiving support through the various 
high-cost support mechanisms should be tested between the customer 
premise of an active subscriber and an FCC-designated IXP. This 
approach is consistent with the Commission's determination in the USF/
ICC Transformation Order that ``actual speed and latency [must] be 
measured on each ETCs access network from the end-user interface to the 
nearest internet access point.'' Measuring the performance of a 
consumer's connection to an IXP better reflects the performance that a 
carrier's customers experience. As the Commission observed when it 
first adopted performance measures for CAF Phase II model-based support 
recipients, ``[t]esting . . . on only a portion of the network 
connecting a consumer to the internet core will not show whether that 
customer is able to enjoy high-quality real-time applications because 
it is network performance from the customer's location to the 
destination that determines the quality of the service from the 
customer's perspective.''
    7. The Commission therefore disagrees with those commenters arguing 
that it should require testing over a shorter span. For example, NTCA 
seeks modification of the testing requirements to account for 
performance only on ``portions of the network owned by the USF 
recipient and the next-tier ISP from which that USF recipient procures 
capacity directly.'' NTCA argues that requiring testing to an FCC-
designated IXP imposes liability on a carrier for conditions beyond its 
control and violates the Act by applying obligations to parts of the 
network that are not supported by USF funding. Alternatively, NTCA 
requests that the Commission provide a ``safe harbor'' to protect a 
carrier from off-network issues that affect its test measurements. WTA 
similarly contends that testing to an FCC-designated IXP makes carriers 
responsible for portions of the connection over which they have no 
control. WTA instead proposes a two-tiered framework consisting of a 
network-only test for purposes of high-cost compliance and customer-to-
IXP testing to respond to customer complaints, with unresolved network-
only problems being subject to non-compliance support reductions. 
Finally, Vantage Point seeks clarity on the initiation point for 
performance testing within the customer premises, and contends that the 
endpoint for testing should be at or reached by passing through a 
carrier's next tier ISP.
    8. The Commission disagrees with petitioners that testing to an 
FCC-designated IXP, rather than the edge of a carrier's network, makes 
a carrier responsible for network elements it does not control, and the 
Commission rejects testing only on a carrier's own network as 
inadequate. As the Bureaus explained, carriers--even smaller ones--do 
have some influence and control over the type and quality of internet 
transport they purchase. The Commission expects a carrier to purchase 
transport of a sufficient quality that enables it to provide the 
requisite level of service expected by consumers and required by the 
Commission's rules. However, in the event a carrier fails to meet its 
performance obligations because the only transport available would 
demonstrably degrade the measured performance of the carrier's network, 
the carrier can seek a waiver of the performance measures requirements. 
The Commission is similarly unpersuaded by WTA's two-tiered testing 
proposal. Adopting WTA's proposal to conduct its required tests over 
only half of the full testing span would only provide the Commission 
with insight into the customer experience on half of the network 
between the customer and the IXP. Given that the Commission's aim is to 
ensure that customers are able to enjoy high-quality real-time 
applications, it declines to adopt WTA's proposed approach.
    9. Finally, the Commission provides additional clarity on both the 
initiation point and endpoint for testing. As the Commission has noted 
in this document, one of the chief purposes for implementing 
performance requirements is to ensure that customers are receiving the 
expected levels of service that carriers have committed to providing. 
Testing from any place other than the customer side of any carrier 
network equipment used in providing a customer's connection may skew 
the testing results and not provide an accurate reflection of the 
customer's broadband experience. As Vantage Point notes, testing in 
this manner would make it ``difficult to ensure that the test was being 
performed on the network path actually used by the customer.'' Thus, 
the Commission clarifies that testing should be conducted from the 
customer side of any network equipment that is being used.
    10. Definition of FCC-designated internet Exchange Point. Given the 
Commission's commitment to testing the performance of connections 
between consumers and FCC-designated IXPs, it also takes this 
opportunity to clarify which facilities qualify as FCC-designated IXPs 
for purposes of performance testing.
    11. USTelecom, ITTA, and WISPA request clarification that ETCs are 
permitted to use ``the nearest internet access point,'' as specified in 
the USF/ICC Transformation Order, which may not necessarily be a 
location specified in the Performance Measures Order. They also seek 
clarification that ETCs may test to servers that are within the 
provider's own network (i.e., on-net servers). In subsequent filings, 
the petitioners suggest that there should be a criteria-based approach 
to defining the testing endpoint. Specifically, they propose that 
testing occur ``from the end-user interface to the first public 
internet gateway in the path of the CAF-supported customer that 
connects through a transitive internet Autonomous System,'' (ASN) and 
``that the Commission establish a safe harbor where the transitive 
internet AS which the gateway hosts includes one or more router(s) that 
advertise(s) [ASN] organizations that are listed on the Center for 
Applied internet Data Analysis (CAIDA) `AS Organization Rank List.' '' 
The petitioners propose that testing occurring through a ``safe 
harbor'' ASN ``would be considered valid without further inquiry.''
    12. The Commission concludes that the Performance Measures Order's 
designation of certain metropolitan areas as qualifying IXPs is too 
ambiguous. It is not clear where the boundaries of a designated IXP 
metropolitan area begin and end. Thus, drawing on the petitioners' 
proposal, the Commission now provides a revised definition of FCC-
designated IXP that is more specific and better designed to account for 
the way internet traffic is routed. For testing purposes, the 
Commission defines an FCC-designated IXP as any building, facility, or 
location housing a public internet gateway that has an active interface 
to a qualifying ASN. Such a building, facility, or location could be 
either within the provider's own network or outside of it. The 
Commission uses the term ``qualifying ASN'' to ensure that the ASN can 
properly be considered a connection to the public internet. The 
Commission notes that in the USF/ICC

[[Page 67222]]

Transformation Order, it finds that the internet gateway is the 
``peering point between the broadband provider and the public 
internet'' and that public internet content is ``hosted by multiple 
service providers, content providers and other entities in a 
geographically diverse (worldwide) manner.'' The criteria the 
Commission uses to determine FCC-designated IXPs are designed to ensure 
that the peering point is sufficiently robust such that it can be 
considered a connection to the public internet and not simply another 
intervening connection point. The Commission designates 44 major North 
American ASNs using CAIDA's ranking of Autonomous Systems and other 
publicly available resources as ``safe harbors.'' The Commission 
directs the Bureaus to update this list of ASNs periodically using the 
CAIDA ranking of ASNs, PeeringDB, and other publicly available 
resources. Providers may test to a test server located at or reached by 
passing through any building, facility, or location housing a public 
internet gateway that has an active interface to one of these 
qualifying ASNs or may petition the Bureaus to add additional ASNs to 
the list. The Bureaus will determine whether any ASN included in a 
carrier petition is sufficiently similar to qualifying ASNs that it 
should be added to the list of qualifying ASNs.
    13. The Bureaus also established a daily testing period for speed 
and latency tests, requiring carriers to conduct tests between 6:00 
p.m. and 12:00 a.m. local time, including weekends. The testing window 
the Bureaus adopted reflects a slight expansion of the testing window 
used for the MBA. The Bureaus reasoned that MBA data indicated a peak 
period of internet usage every evening but noted that they would 
revisit this requirement periodically ``to determine whether peak 
internet usage times have changed substantially.''
    14. Petitioners and commenters urge the Commission to reconsider 
the daily test period requirement to account for the usage patterns of 
rural consumers, as well as the conditions and characteristics of rural 
areas. WTA notes that the MBA data cited by the Bureaus likely reflect 
the usage patterns of urban consumers, rather than consumers in rural 
areas that ``are typically making personal and business use of their 
household internet connections throughout the day.'' WTA contends that 
there is likely to be increased congestion on rural networks during the 
time period adopted by the Bureaus, potentially resulting in an 
inaccurate or unrepresentative testing of the carrier's service. WTA 
also argues that mandating testing during evening hours and weekends 
requires rural carriers to adjust their regular daytime schedule, 
creating staffing and financial hardships and potentially preventing 
them from responding to other customer service issues. ITTA supports 
this point, noting that ``evening and weekend test hours require RLECs 
to re-schedule one or more technicians from their regular daytime 
maintenance and installation duties and pay them premium or overtime 
wages.'' ITTA also challenges the expansion of the daily test period 
from 7 p.m. to 11 p.m. to 6 p.m. to 12 a.m., and requests flexibility 
as to the specific hours that testing may be conducted.
    15. The Commission declines to revisit the daily testing period at 
this time. WTA provides no data to support its claim that rural 
consumers are more active users of broadband service during daytime 
hours than urban consumers. Moreover, the Commission's review of MBA 
data from more rural areas indicates that these areas have similar peak 
periods to urban areas. As the Commission has stated many times, a 
primary goal for universal service is to ensure that customers in rural 
areas receive the same level of service as those in urban areas. By 
establishing the same testing window for urban and rural areas, the 
Commission can confirm that consumers in rural areas are not receiving 
substandard service as compared to consumers in urban areas during the 
same time periods. Additionally, WTA's concern that testing during the 
peak period may degrade a consumer's broadband experience is unfounded. 
As the Commission previously observed, the small amount of data 
required for speed testing will have no noticeable effect on network 
congestion. The Commission reminds carriers that it provides them the 
flexibility to choose whether to stagger their tests over the course of 
the testing period, so long as they do not violate any other testing 
requirements.
    16. The Commission also disagrees with WTA and ITTA that the 
current daily testing period will require rural carriers to devote 
additional personnel hours to implement the Commission's performance 
testing requirements. Once the testing regime is implemented and 
carriers have installed the necessary technology and software to test 
the speed and latency of their networks on a routine basis, the 
Commission does not anticipate that extensive staffing will be required 
to monitor the testing process. Because the technological testing 
options that the Commission has allowed carriers to use are all 
relatively automated, carriers should not have to adjust schedules to 
ensure staffing during evenings and weekends. Additionally, the 
Commission notes that the Bureaus expanded the testing period from 7 
p.m. to 11 p.m. to 6 p.m. to 12 a.m. based on several comments from 
parties that requested a longer testing period. Adding one additional 
hour on both the front and back end of the testing period allows a 
carrier's testing to capture the ramp up and ramp down periods before 
and after peak time, providing a more accurate picture of whether 
customers are receiving the required level of service. The Commission 
also reminds parties that the Bureaus committed to revisiting 
periodically the daily testing window to ensure that the established 
hours continue to reflect the usage habits of consumers.
    17. The Bureaus required a specified number of speed tests during 
each testing window. In particular, the Performance Measures Order 
required a minimum of one download test and one upload test per testing 
hour at each subscriber test location. Providers were required to start 
separate download and upload speed tests at the beginning of each test 
hour window, and, after deferring a test due to cross-talk (e.g., 
traffic to and from the consumer's location that could impact 
performance testing), providers were required to reevaluate whether the 
consumer load exceeds the cross-talk threshold every minute until the 
speed test can be run or the one-hour test window ends.
    18. In their Petition for Reconsideration, USTelecom, ITTA, and 
WISPA request clarification that recipients are afforded flexibility in 
commencing hourly tests. They argue that ``[i]t is not clear from the 
Performance Measures Order . . . whether `the beginning' of a test hour 
window requires a recipient to commence testing at the top of the hour, 
or whether testing must commence for all test subscribers at exactly 
the same time.'' The petitioners state that carriers should only be 
required to complete the test within the hour, and they should be able 
to retry tests as frequently as their systems allow until a successful 
test is administered, rather than retrying deferred tests every minute. 
Noting that ``there should be no practical difference as to whether 
testing occurs at the top, middle, or closer to [the] end of a testing 
window,'' NTCA, NRECA, and UTC support the petitioners' request that 
``the Commission reconsider the discrete and specific times at which 
testing is to be conducted within each hour.'' Vantage Point likewise 
proposes that the Commission permit carriers to distribute speed tests 
within testing

[[Page 67223]]

hours in a way that minimizes network impact; otherwise, Vantage Point 
asserts, requiring all speed testing to start at the beginning of each 
hour would significantly burden test servers such that test results 
would not be representative of customers' normal experience.
    19. The Commission clarifies that providers do not have to begin 
speed tests at the beginning of each test hour, as petitioners suggest. 
In particular, the Commission agrees with Vantage Point that providing 
greater flexibility in this regard will further minimize the impact of 
any potential burden on the test servers during speed testing. However, 
to ensure that there is enough data on carriers' speed performance, 
providers must still conduct and report at least one download test and 
one upload speed test per testing hour at each subscriber test 
location, with one exception. A carrier that begins attempting speed 
tests within the first fifteen minutes of a testing hour, and 
repeatedly retries and defers the test at one-minute intervals due to 
consumer load meeting the adopted cross-talk thresholds (i.e., 64 Kbps 
for download tests or 32 Kbps for upload tests), may report that no 
test was successfully completed during the test hour because of cross-
talk. A provider that does not attempt a speed test within the first 15 
minutes of the hour and/or chooses to retry tests in greater than one-
minute intervals must, however, conduct and report a successful speed 
test for the testing hour regardless of cross-talk. Although this 
approach continues to differ slightly from MBA practice, the Commission 
believes that it minimizes the possibility of network congestion at the 
beginning of the testing hour while ensuring that it will have access 
to sufficient testing data.
    20. The Performance Measures Order established specific test 
intervals within the daily test period for latency testing, requiring 
carriers to conduct ``a minimum of one discrete test per minute, i.e., 
60 tests per hour, for each of the testing hours, at each subscriber 
test location, with the results of each discrete test recorded 
separately.'' Recognizing that cross-talk could negatively affect the 
test results, the Bureaus provided flexibility for carriers to postpone 
a latency test in the event that the consumer load exceeded 64 Kbps 
downstream and to reevaluate the consumer load before attempting the 
next test.
    21. Several parties express concern with these requirements and 
request reconsideration of the latency testing framework. USTelecom, 
ITTA, and WISPA jointly contend that the Bureaus failed to provide 
adequate notice for the frequency of latency testing and did not 
justify departing from the MBA practice of combining speed and latency 
testing under a unified framework. These parties further argue that 
requiring latency testing once per minute will be administratively 
burdensome for carriers by preventing them from combining the 
instructions for testing into a single process and potentially 
overloading and disrupting some testing methods. Instead, USTelecom, 
ITTA, and WISPA propose that the number of latency tests should be 
reduced to match the frequency of speed testing. Midcontinent also 
supports aligning the frequency of speed and latency testing 
requirements.
    22. AT&T contends that testing once per minute ``is unnecessary and 
arbitrary and capricious'' and likewise argues that the Commission 
should permit carriers to test latency only once per hour. AT&T 
supports its proposal by providing internal data purporting to 
demonstrate no material difference between testing latency once per 
minute versus testing once per hour. As a result, AT&T proposes that 
the Commission require a minimum of one latency test per hour, but 
provide flexibility to allow carriers to test more frequently if they 
desire. ITTA concurs with AT&T's proposed approach.
    23. Conversely, NTCA, NRECA, and UTC support the latency testing 
framework adopted by the Bureaus. These parties observe that aligning 
the frequency of speed and latency tests would ``risk undermining the 
Commission's statutory mandate to ensure reasonably comparable services 
in rural and urban areas'' because speed does not require as frequent 
testing as latency in order to demonstrate compliance. In response, 
USTelecom, ITTA, and WISPA again argue that the Bureaus failed to 
adequately address the Administrative Procedure Act's notice 
obligations or present any legal or factual basis for requiring 
substantially more latency tests than speed tests.
    24. The Commission declines to revise the determination of the 
Bureaus that carriers must conduct latency testing once per minute. 
Regarding parties' procedural arguments, the Commission notes that, in 
the two Public Notices seeking comment on the performance measures, the 
Bureaus specifically explained that adopting the Measuring Broadband 
America (MBA) testing was under consideration. Indeed, many of the 
performance testing requirements were derived from or influenced by the 
Commission's experience with MBA testing. As such, parties had ample 
notice that the testing regime adopted by the Bureaus, which is a less 
burdensome variation of the MBA testing, was a potential option. Any 
argument to the contrary is unfounded.
    25. Complaints that the frequency of latency testing will affect 
network performance also are speculative. The latency testing frequency 
framework ultimately adopted by the Bureaus is substantially less 
extensive than the MBA program testing. For example, MBA testing sends 
approximately 2,000 User Datagram Protocol (UDP) packets per hour, and 
these 2,000 individual results are summarized as a single reporting 
record that reflects all 2,000 tests. To be clear, MBA requires latency 
to be tested 2,000 times per hour, with results summarized into one 
record. Conversely, the Bureaus adopted testing of 60 UDP packets per 
hour that consists of approximately 3% of the typical MBA load. The 
more intensive MBA test frequency has not been found to pose any 
technical or other difficulties, so there is no reason to believe that 
the vastly lower frequency of latency testing adopted by the Bureaus 
will cause concerns. Requiring 60 UDP packets per hour rather than 
2,000 balances the need for sufficient testing while minimizing the 
burden of testing on carriers.
    26. The Commission also agrees with the Bureaus that the disparity 
in testing frequency between speed and latency reflects the different 
type of testing necessary to determine whether carriers are meeting the 
required benchmarks. The purpose of speed testing is to determine if 
the network is properly provisioned to furnish the required speed and 
whether the network provides sufficient throughput to handle uploads 
and downloads at particular speeds and times. Because of the burden 
that such testing puts on a carrier's network, the Bureaus adopted the 
minimum number of tests necessary to ensure that consumers are 
receiving broadband service at required speed levels. On the other 
hand, latency testing indicates whether there is sufficient capacity in 
the network to handle the level of traffic, which is of particular 
importance when the network is experiencing high traffic load. In this 
respect, latency is similar to a pulse rate and can vary substantially 
as a result of several factors. Even if all these factors are unknown, 
frequently monitoring latency determines the ability of the network to 
handle various circumstances and factors that are affecting it. As 
NTCA, NRECA, and UTC explain:
    [T]here is logic in a protocol that tests for latency more 
frequently than speed. The

[[Page 67224]]

impact of latency is measured in and discernible by milliseconds: 
the frequency of testing aims to illuminate whether variables that 
perforate performance are present. In contrast, speed contemplates a 
steadier aspect of the network facility, and therefore does not 
require as frequent testing to demonstrate compliance. Therefore, in 
as much as latency-sensitive services and applications (including 
but not limited to voice) are affected by millisecond variables, 
NTCA, NRECA and UTC urge the Commission to maintain its rigorous 
standards for latency testing.

And, in any event, conducting more tests for latency is to the 
carrier's benefit, because of the variability of latency and resulting 
greater likelihood that outlier failures will not affect the overall 
rate.
    27. The Commission appreciates AT&T's willingness to share its 
internal data and analysis. However, AT&T's data reflect only the 
capabilities of its own network and consisted of a very small sample 
set--18 customers for one peak period in one instance and ``almost'' 
100 subscribers for one peak period in the other. The Commission also 
notes that even AT&T's data demonstrated a substantial variation 
between testing once per hour and once per minute. For example, in its 
testing, AT&T found that per minute latency testing of customers served 
by varying technologies showed that 1.17% of tests were higher than 100 
ms but once per hour testing showed that 3.04% of tests showed a 
latency of higher than 100 ms. A difference of 2% when the latency 
standard is 5% is substantial.
    28. Analysis undertaken by Commission staff confirms the importance 
of more frequent testing to account for the variability associated with 
latency. Commission staff compared the conclusions that AT&T--and 
supported by ITTA--drew from its data to what the much larger MBA data 
demonstrate. This analysis indicates that the risk of false positives 
and false negatives (i.e., sample test results indicate that a carrier 
fails, when given overall network performance, it should have passed, 
or that a carrier passes, when given overall network performance, it 
should have failed) varies significantly based on the number of 
measurements per hour. Because the Commission's performance standard 
for latency requires 95% of the latency measurements to be less than or 
equal to 100 ms, a carrier would fail the standard if more than 5% of 
its latency measurements are greater than 100 ms. In general, staff's 
analysis found that a greater number of measurements reduces the impact 
of data outliers and makes false positives and false negatives less 
likely. For example, a single 200 ms data outlier among a sample of 10 
latency measurements that otherwise are all under 100 ms would result 
in the carrier's failing to meet the 95% threshold (i.e., only 9 out of 
10 or 90% of the measurements would be at or under 100 ms). However, a 
single data outlier of 200 ms in a sample of 100 latency measurements 
would not, in the absence of at least five other measurements exceeding 
100 ms, cause the carrier to fail (i.e., 99 out of 100 or 99% of the 
measurements would be at or under 100 ms).
29. Additionally, staff analysis of MBA data indicated that the 
distribution of latency among carriers varies widely even within the 
same minute. This means that latency varies significantly depending 
upon the traffic on the network at any given time and does not vary in 
the same way for each carrier or even within each day for each carrier. 
Because of the countless number of distributions observed among 
carriers reflected by the MBA data, the Commission concludes that a 
smaller number of observations would not yield reliable testing 
results. Thus, more testing provides the Commission with greater 
ability to detect bad performance in cases where a carrier's latency is 
consistently high. In other words, since the likelihood of failing or 
passing the Commission's latency standard depends, to some degree, on 
random noise, the more measurements taken by a carrier, the less likely 
that random factors would cause it to fail the standard.
    30. The figure in the following demonstrates staff's analysis of 
the estimated probability of failure and associated risk of false 
positive or false negative results with different numbers of 
measurements from a range of latency distributions observed in the MBA 
data. Each box (bar) represents the estimated probability of failure 
for a given latency distribution. The difference in the probability of 
failure between N number of measurements and N=2000 is the estimated 
risk of a false positive (the test result indicates that a carrier 
fails when it should have passed) and a false negative (the test result 
indicates that a carrier passes when it should have failed). As 
demonstrated, there is a much higher risk of a false positive or false 
negative under AT&T's proposed once per hour latency measurement as 
compared to a moderate risk from 60 measurements per hour.
[GRAPHIC] [TIFF OMITTED] TR09DE19.001


[[Page 67225]]


    Thus, staff's analysis shows that, given the high variability of 
latency, one of two things would occur if the Commission required only 
one measurement per hour: either a few extreme measurements would cause 
a carrier to fail the standard when, in fact, it should pass given its 
overall performance, or the Commission would be unable to capture 
consistent poor performance by a carrier that should fail based on the 
overall performance of its network. As a result, a moderate-risk 
approach of 60 measurements per hour strikes a balance between the 
burden of testing on carriers and the risk of failure by carriers 
caused by uncertainty.
    31. Finally, the Commission notes that some parties may 
misunderstand what exactly constitutes a latency test for purposes of 
the performance measures. Specifically, USTelecom states that, 
``[t]esting every minute may also overload some testing methods and 
cause testing to be disrupted,'' implying that a carrier must start and 
stop a latency test every minute within a test-hour. While the 
Commission does not believe this interpretation is consistent with the 
intent of the Performance Measures Order, it provides greater clarity 
here on what is considered a sufficient latency test to assuage 
concerns about the number of latency tests per hour. As the Bureaus 
described in the Performance Measures Order, a ``test'' constitutes a 
``single, discrete observation or measurement of speed or latency.'' 
While carriers may choose to continuously start and stop latency 
testing every minute and record the specific result, the Commission 
clarifies that there is no requirement to conduct latency testing in 
this manner. Instead, carriers may continuously run the latency testing 
software over the course of a test-hour and record an observation or 
measurement every minute of that test-hour. If a carrier transmits one 
packet at a time for a one-minute measurement, the carrier should 
report the result of that packet as one observation. However, some 
applications, such as ping, commonly send three packets and only report 
summarized results for the minimum, mean, and maximum packet round trip 
time and not individual packet round trip time. If this is the case, 
the carrier should report the mean as the result of this observation. 
If the carrier sends more than one packet and the testing application 
allows for individual round trip time results to be reported for each 
packet, then the carrier must report all individual measurements for 
each packet. Such an approach plainly fits within the definition of 
``test'' adopted by the Bureaus in the Performance Measures Order and 
does not require constant starting and stopping of the latency testing 
software. In sum, carriers have the flexibility to choose how to 
conduct their latency testing, so long as one separate, discrete 
observation or measurement is recorded each minute of the specific 
test-hour.
    32. The Bureaus required that carriers test a maximum of 50 
subscriber locations per required service tier offering per state, 
depending on the number of subscribers a carrier has in a state, 
randomly selected every two years. The Performance Measures Order 
included scaled requirements permitting smaller carriers (i.e., 
carriers with fewer than 500 subscribers in a state and particular 
service tier) to test 10% of the total subscribers in the state and 
service tier, except for the smallest carriers (i.e., carriers with 50 
or fewer subscribers), which must test five subscriber locations. The 
Bureaus also recognized that, in certain situations, a carrier serving 
50 or fewer subscribers in a state and service tier may not be able to 
test even five active subscribers; the Bureaus permitted such carriers 
to test a random sample of existing, non-CAF-supported active 
subscriber locations within the same state and service tier to satisfy 
the testing requirement. In situations where a subscriber at a test 
location stops subscribing to the service provider within 12 months 
after the location was selected, the Bureaus required that the carrier 
test another randomly selected active subscriber location. Finally, the 
Bureaus explained that carriers may use inducements to encourage 
subscribers to participate in testing, which may be particularly useful 
in cases where support is tied to a particular performance level for 
the network, but the provider does not have enough subscribers to 
higher performance service tiers to test to comply with the testing 
sample sizes.
    33. Petitioners and applicants raise various concerns regarding the 
required number of subscriber test locations. Micronesian 
Telecommunications Corporation (MTC), for example, argues that it and 
similar carriers that may have fewer than 50 subscribers in a 
particular state and speed service tier will be unable to comply with 
the test locations requirement. MTC claims that it will be difficult to 
find even five customers to test, particularly in higher service tiers. 
Asking that the Commission ``provide a safety valve'' for similar small 
carriers, MTC proposes that such a provider should ``test no more than 
10 percent of its customers in any given service tier, with a minimum 
of one test customer per service tier with customers.'' NTCA argues 
that testing 10% of subscribers may be excessive; instead, NTCA 
proposes that carriers should test the lesser of 50 locations per state 
or 5% of active subscribers. Further, NTCA argues that carriers should 
not be required to upgrade the speed or customer premises equipment for 
individual locations even temporarily to conduct speed tests. WTA 
suggests that, at least for rural carriers, the number of test 
locations should be much lower than adopted in the Performance Measures 
Order. Smaller carriers must test larger percentages of their customers 
compared to larger carriers; accordingly, WTA argues, the Commission 
should permit testing of just 10-15 locations or 2-3% of subscribers in 
each CAF-required service tier.
    34. NTCA, as well as USTelecom, ITTA, and WISPA, also ask that the 
Commission clarify that carriers may use the same locations for testing 
both speed and latency. USTelecom, ITTA, and WISPA explain that, if 
carriers must conduct speed and latency testing at different locations, 
the number of subscribers that must be tested would be unnecessarily 
doubled, which ``would be particularly troublesome for smaller 
recipients, many of whom will be drawing test locations from a small 
group of subscribers.'' Similarly, the petitioners explain, the 
requirement regarding the number of test locations should be clarified 
to be exactly the same for both speed and latency. These clarification 
proposals drew broad support from commenters. For example, comments 
submitted jointly by NTCA, NRECA, and UTC assert that the 
clarifications would help providers ``avoid unnecessary costs and 
excessive administrative burden,'' while Midcontinent Communications 
notes that using ``the same panelists for speed and latency testing for 
CAF purposes would align with [its] internal testing practices.''
    35. A few parties offer suggestions regarding the parameters for 
the random selection process. In particular, WTA asks that locations 
should be tested for five years, instead of two years, before a new 
random sample of test locations is chosen. WTA also proposes that twice 
the required random number of testing locations be provided to carriers 
so that carriers can replace locations where residents refuse to 
participate or have incompatible CPE. Frontier, in an ex parte filing, 
proposes that carriers be allowed to test only new customer locations; 
it argues that installing the necessary testing equipment at older 
locations requires more time than is

[[Page 67226]]

available with the adopted testing schedule.
    36. The Commission declines to modify the adopted sample sizes for 
testing speed and latency. To minimize the burdens of testing, the 
Bureaus have used a ``trip-wire'' approach in determining the required 
sample sizes. In other words, the adopted sample sizes produce 
estimates with a high margin of error but can show where further 
inquiry may be helpful; the Commission's target estimation precision is 
a 90% confidence level with an 11.5% margin of error. For the largest 
carriers, i.e., those with over 500 subscribers in a given state and 
speed service tier, this requires a sample size of 50 subscriber 
locations. For the smallest carriers, the Bureaus adopted small sample 
sizes that result in less precision, with the margin of error reaching 
34.9%, to reduce the testing burden on smaller providers. Reducing the 
sample sizes for smaller carriers even more would further reduce the 
resulting estimation precision--making the test data even less likely 
to be representative of the actual speed and latency consumers 
experience on CAF-supported networks. The Commission therefore does not 
modify the required numbers of subscriber locations carriers must test.
    37. Nonetheless, the Commission recognizes that a few carriers 
facing unique circumstances may find it extraordinarily difficult to 
find a sufficient number of subscriber locations to test. Although the 
Commission declines to modify the adopted sample sizes, the Commission 
appreciates that special circumstances occasionally demand exceptions 
to a general rule. The Commission's rules may be waived for good cause 
shown.
    38. For carriers that cannot find even five CAF-supported locations 
to test, the Commission also reconsiders the Bureaus' decision to 
permit testing of non-CAF-supported active subscriber locations within 
the same state and service tier. Testing and reporting speed and 
latency for non-CAF-supported locations adds unnecessary complexity to 
the Commission's requirements. Accordingly, the Commission requires 
that any non-compliant carrier testing fewer than five CAF-supported 
subscriber locations because more are not available would be subject to 
verification that more customers are not available, rather than 
requiring that all carriers testing fewer than five CAF-supported 
subscriber locations find non-CAF-supported locations to test.
    39. Additionally, the Commission recognizes that, as several 
parties have noted, obtaining customer consent for testing which 
requires placement of testing equipment on customer premises may prove 
difficult. The Commission believes that its revised testing 
implementation schedule (discussed in the following) will help 
alleviate this concern, particularly for smaller carriers. Numerous 
vendors are developing software solutions that will allow providers to 
test the service at customer locations without requiring any additional 
hardware at the customer's premises. Further, the Commission directs 
WCB to publish information on the Commission's website explaining the 
nature and purpose of the required testing--to ensure that carriers are 
living up to the obligations associated with CAF support--and urging 
the public's participation. The Commission expects that providing such 
information in an easy-to-understand format will help alleviate 
subscribers' potential concerns. Moreover, the Commission emphasizes 
that no customer proprietary network information is involved in the 
required testing or reporting, other than information for which the 
carrier likely would already have obtained customer consent; carriers 
routinely perform network testing of speed and latency and the 
performance measures testing the Commission is requiring is of a 
similar nature.
    40. The Commission agrees with comments recommending that the same 
sample sizes adopted for speed should also apply to latency, and that 
the same subscriber locations should be used for both speed and latency 
tests. As some parties have noted, requiring testing of two separate 
sets of subscriber locations for speed and latency, rather than the 
same group of locations for both, is unnecessarily burdensome. By 
requiring speed and latency tests at the same subscriber locations, the 
Commission reduces the amount of equipment, coordination, and effort 
that may otherwise be involved in setting up testing. Therefore, 
carriers will test all of the locations in the random sample for both 
speed and latency. The Commission notes that because it is adopting 
different implementation dates for testing of different broadband 
deployment programs, a carrier will receive a separate random sample of 
testing locations for each program for which it must do performance 
testing. In the Performance Measures Order, the Bureaus stated that, 
``[a] carrier with 2,000 customers subscribed to 10/1 Mbps in one state 
through CAF Phase II funding and 500 rural broadband experiment (RBE) 
customers subscribed to 10/1 Mbps in the same state, and no other high-
cost support with deployment obligations, must test a total of 50 
locations in that state for the 10/1 Mbps service tier.'' But because 
CAF Phase II and RBE have different implementation dates for testing, 
the carrier in this example must test 50 locations for its CAF Phase II 
obligations and 50 locations for its RBE obligations. Similarly, 
because the Commission now requires carriers to use the same sample for 
both speed and latency, it reconsiders the requirement that carriers 
replace latency testing locations that are no longer actively 
subscribed after 12 months with another actively subscribed location. 
The Bureaus did not make clear if this provision applied to both speed 
and latency test locations. To avoid confusion, the Commission 
clarifies that the same replacement requirements should apply to both 
speed and latency. Therefore, the Commission now requires that carriers 
replace non-actively subscribed locations with another actively 
subscribed location by the next calendar quarter testing. Although the 
Commission does not believe it is necessary for carriers to obtain a 
random list of twice the number of required testing locations at the 
outset, carriers should be able to obtain additional randomly selected 
subscriber locations as necessary for these kinds of situations.
    41. The Commission reconsiders the Bureaus' requirement that 
carriers meet and test to their CAF obligation speed(s) regardless of 
whether their subscribers purchase internet service offerings with 
speeds matching the CAF-required speeds for those CAF-eligible 
locations. Specifically, in situations where subscribers purchase 
internet service offerings with speeds lower than the CAF-required 
speeds for those locations, carriers are not required to upgrade 
individual subscriber locations to conduct speed testing unless there 
are no other available subscriber locations at the CAF-required speeds 
within the same state or relevant service area. The Commission 
recognizes that there may be significant burdens associated with 
upgrading an individual location, particularly when physically 
replacing equipment at the customer premises is necessary. Some 
carriers may still find it necessary to upgrade individual subscriber 
locations, at least temporarily, to conduct speed testing. The 
Commission does not believe that requiring temporary upgrades of 
service of testing locations in these instances will discourage bidding 
in future auctions. Carriers participating in auctions should be 
prepared to provide

[[Page 67227]]

the required speeds at all of the locations in the relevant service 
area and should anticipate that over time more and more customers in 
the service area will be purchasing the higher-speed offerings.
    42. Finally, the Commission rejects proposals to require testing 
only of newly deployed subscriber locations and to maintain the same 
sample for more than two years. If the Commission were to permit 
testing of only new locations, carriers' speed and latency test data 
would not reflect their previous CAF-supported deployments, for which 
carriers also have ongoing speed and latency obligations. Moreover, 
although the Bureaus adopted the Performance Measures Order in 2018, 
carriers have been certifying that their CAF-supported deployments meet 
the relevant speed and latency obligations for several years. Requiring 
testing of older locations should not prove a problem for carriers that 
have been certifying that their deployments properly satisfy their CAF 
obligations. In any case, further shrinking the required sample to 
include only more recent deployments would compromise the effectiveness 
of the ``trip-wire'' sample; the Commission would not be able to 
identify potential problems with many older CAF-supported deployments. 
Maintaining the same sample beyond two years would present the opposite 
problem. By excluding newer deployments, the Commission's understanding 
of carriers' networks would be outdated; the Bureaus' decision to 
require testing a different set of subscriber locations every two years 
struck the correct balance between overburdening carriers and 
maintaining a current, relevant sample for testing.
    43. The Bureaus required quarterly testing for speed and latency. 
In particular, to capture any seasonal effects and differing conditions 
throughout the year that can affect a carrier's broadband performance, 
the Bureaus required carriers subject to the performance measures to 
conduct one week of speed and latency testing in each quarter of the 
calendar year.
    44. WTA argues that spreading testing across the year imposes a 
substantial burden, particularly on rural carriers, without producing 
more accurate information than a single week of testing. WTA also 
contends that obtaining consent from customers to allow testing for 
four weeks a year ``is going to be extremely difficult and likely to 
become a customer relations nightmare.'' Instead, WTA argues that 
testing for a single week in late spring or early fall would be more 
representative of typical internet usage. WTA cites these claimed 
difficulties as a reason for reducing the number of weeks of annual 
testing, reducing the numbers of locations to be tested, allowing more 
flexible selection of customer locations, and using the test locations 
for longer periods.
    45. The Commission declines to adjust the quarterly testing 
requirement as proposed by WTA. As the Bureaus acknowledged when they 
adopted the quarterly requirement, different conditions exist 
throughout the year that can affect service quality, including changes 
in foliage, weather, and customer usage patterns, school schedules, 
holiday shopping, increased or decreased customer use because of travel 
and sporting events, and business cycles. The goal of the testing 
requirements is to ensure that consumers across the country experience 
consistent, quality broadband service throughout the year, not at only 
one defined point during the year. Additionally, the Commission 
believes WTA's concerns regarding customer consent are unfounded. The 
Commission expects that once the requisite technology and software to 
conduct the required testing has been installed, testing the 
performance of the network for one week per quarter will not impose any 
additional significant burden on carriers or customers. Moreover, the 
tests themselves use so little bandwidth that the Commission does not 
believe customers will even notice that testing is occurring. Indeed, 
as the Bureaus explained, quarterly testing ``strikes a better balance 
of accounting for seasonal changes in broadband usage and minimizing 
the burden on consumers who may participate in testing.''
    46. The Commission confirms that carriers may use any of the three 
methodologies outlined in the Performance Measures Order to demonstrate 
their compliance with network performance requirements. The Commission 
has previously determined that it should provide carriers subject to 
performance testing with flexibility in determining the best means of 
conducting tests. In 2013, WCB had determined that price cap carriers 
generally may use ``existing network management systems, ping tests, or 
other commonly available network measurement tools,'' as well as 
results from the MBA program, to demonstrate compliance with latency 
obligations associated with CAF Phase II model-based support. Thus, the 
Bureaus concluded that ETCs subject to fixed broadband performance 
obligations would be permitted to conduct testing by employing either: 
(1) MBA testing infrastructure (MBA testing), (2) existing network 
management systems and tools (off-the-shelf testing), or (3) provider-
developed self-testing configurations (provider-developed self-testing 
or self-testing). The Bureaus reasoned that the flexibility afforded by 
three different options offered ``a cost-effective method for 
conducting testing for providers of different sizes and technological 
sophistication.''
    47. NTCA requests clarification about language in the Performance 
Measures Order stating that ``MBA testing must occur in areas and for 
the locations supported by CAF, e.g., in CAF Phase II eligible areas 
for price cap carriers and for specific built-out locations for RBE, 
Alternative Connect America Cost Model (A-CAM), and legacy rate-of-
return support recipients.'' NTCA contends that this language refers to 
previously-promulgated MBA testing requirements and that the Commission 
should clarify that ETCs subject to fixed broadband performance 
obligations should be permitted to use any of three testing options 
outlined by the Bureaus.
    48. The language highlighted by NTCA applies only to carriers 
choosing the MBA testing option; the Bureaus set out additional, 
separate requirements for carriers choosing to use off-the-shelf or 
provider-developed testing options. As the Performance Measures Order 
explained, in the event that a carrier opts to use the MBA testing 
methodology to collect performance data, it must ensure boxes are 
placed at the appropriate randomly selected locations in the CAF-funded 
areas, as required for the CAF testing program. If, on the other hand, 
a carrier opts for either off-the-shelf testing tools or its own self-
testing, it must use the testing procedures specific to the providers' 
respective chosen methodology.
    49. To achieve full compliance with the latency and speed 
standards, the Performance Measures Order required that 95% of latency 
measurements during testing windows fall below 100 ms round-trip time, 
and that 80% of speed measurements be at 80% of the required network 
speed. Based on the standard adopted by the Commission in 2011, WCB 
used ITU calculations and reported core latencies in the contiguous 
United States in 2013 to determine that a latency of 100 ms or below 
was appropriate for real-time applications like VoIP. WCB thus required 
price cap carriers receiving CAF Phase II model-based support to test 
and certify that 95% of testing hours latency measurements are at or 
below 100 ms (the latency standard). Later, WCB sought comment on 
extending the

[[Page 67228]]

same testing methodologies to other high-cost support recipients 
serving fixed locations, and in multiple orders, the Commission 
extended the same latency standard to RBE participants, rate-of-return 
carriers electing the voluntary path to model support, CAF Phase II 
competitive bidders not submitting high-latency bids, and Alaska Plan 
carriers.
    50. The Bureaus ultimately reaffirmed and further extended the 
latency standard to all high-cost support recipients serving fixed 
locations, except those carriers submitting high-latency bids in the 
CAF Phase II auction. In doing so, the Bureaus noted that the data on 
round-trip latency in the United States had not markedly changed since 
the CAF Phase II Price Cap Service Obligation Order, and that no 
parties challenged the Commission's reasoning for the existing 100 ms 
standard. More recently, the Bureaus refreshed the record, seeking 
comment on USTelecom's proposal that certifying ``full'' compliance 
means that 95 to 100% of all of an ETCs measurements during the test 
period meet the required speed. The Bureaus then adopted a standard 
requiring that 80% of a carrier's download and upload measurements be 
at or above 80% of the CAF-required speed (i.e., an 80/80 standard). 
The Bureaus explained that this speed standard best meets the 
Commission's statutory requirement to ensure that high-cost-supported 
broadband deployments provide reasonably comparable service as those 
available in urban areas. The Bureaus also noted that they would 
exclude from certification calculations certain speed measurements 
above a certain threshold to ensure that outlying observations do not 
unreasonably affect results.
    51. In their Petition, USTelecom, ITTA, and WISPA complain that 
``[t]here is . . . a significant disparity in compliance thresholds for 
speed and latency,'' and ask that the Bureaus require ETCs' latency 
measurements to meet 175 ms at least 95% of the time. The petitioners 
argue that, before accepting CAF Phase II model-based support, carriers 
could not have fully understood whether the latency standard adopted in 
2013 was appropriate, apparently because it was adopted ``almost two 
full years before price cap carriers accepted CAF Phase II support,'' 
and other ``reasonable'' requirements were adopted later. Further, the 
petitioners argue, the same ITU analysis that WCB relied on in 2013 to 
adopt the latency standard ``found that consumers continue to be 
`satisfied' with speech quality at a one-way mouth-to-ear latency of 
275 ms or a provider round-trip latency of 175 ms,'' so ``treating a 
latency result that is even one millisecond above 100 ms as a violation 
. . . penaliz[es] recipients for providing users with voice quality 
with which they are fully satisfied.'' Changing the standard to require 
latency measurements of 175 ms or better 95% of the time, petitioners 
assert, would better align the latency standard with the speed 
standard, which is designed to ensure that high-cost-supported 
broadband deployments are reasonably comparable to those in urban 
areas.
    52. NTCA, NRECA, and UTC oppose the petitioners' request to 
``align'' the latency standard with the speed standard. Defending the 
95% threshold adopted by the Bureaus, these parties explain that low 
latency is necessary to support achieving a ``reasonably comparable'' 
level of service, and the 95% compliance benchmark for latency is a 
``reasonable'' standard for that. Moreover, speeds may vary up to 20% 
because of ``networking protocols, interference and other variances 
that affect all providers and whose accommodation is technology 
neutral,'' but such factors do not affect latency. Thus, they say, the 
record supports the adopted latency standard.
    53. Multiple parties seek clarifications regarding implementation 
of the 80/80 speed standard adopted in the Performance Measures Order. 
In particular, carriers expressed concern that compliance will be 
measured against advertised speeds, rather than the speeds carriers are 
obligated to provide in exchange for CAF support. In addition, 
USTelecom, ITTA, and WISPA, among others, challenge the Bureaus' 
finding that speed test results greater than 150% of advertised speeds 
are likely invalid and ask that the Bureaus reconsider automatically 
excluding those measurements from compliance calculations. Instead, 
Vantage Point suggests, the Commission should consider excluding data 
points beyond a defined number of standard deviations, rather than 
setting a 150% cutoff for measurements.
    54. The Commission declines to modify the longstanding latency 
standard requiring that 95% of round-trip measurements be at or below 
100 ms. As petitioners acknowledge, the standard was initially adopted 
in 2013, before carriers accepted CAF Phase II model-based support. 
Petitioners claim that, as a result, ``no future recipient could have 
been expected to assess the appropriateness of this prematurely adopted 
requirement,'' but, in fact, carriers accepted CAF Phase II support 
conditioned on the requirement that they certify to the adopted latency 
standard. In other words, carriers assessed the appropriateness of the 
standard and decided that they would be able to certify meeting the 
standard--or, at the very least, accepted that they would risk losing 
CAF Phase II support if they were unable to meet the standard. 
Moreover, no parties sought reconsideration when the standard was 
originally adopted, and the Commission later extended the same standard 
to other high-cost support recipients in the years following.
    55. The Commission also notes that latency is fundamentally 
different from speed and therefore requires a different standard to 
ensure that CAF-supported broadband internet service is reasonably 
comparable to service in urban areas. The 100 ms standard, which is 
more lenient than the 60 ms standard originally proposed, ensures that 
subscribers of CAF-supported internet service can use real-time 
applications like VoIP. If the Commission were to require 95% of 
latency measurements to be only 175 ms or lower, it would be relaxing 
the standard considerably--permitting CAF-supported internet service to 
have 75% higher latency than permitted by the existing standard adopted 
by the Commission. Further, lowering the existing standard would not 
decrease burdens on carriers and provide ``a more efficient compliance 
and enforcement process,'' as the petitioners suggest. The carriers 
need only to conduct tests, which can be automated, and provide the 
data; Universal Service Administrative Company (USAC) will complete the 
necessary calculations to determine compliance. To the extent that 
parties argue that the 100 ms standard is overly strict and that 
consumers may be satisfied with higher latencies, that standard was 
adopted in prior Commission orders and thus is not properly addressed 
in this proceeding, which is to determine the appropriate methodology 
for measuring whether high-cost support recipients' networks meet 
established performance levels.
    56. The Commission clarifies, however, that carriers are not 
required to provide speeds beyond what they are already obligated to 
deploy as a condition of their receipt of high-cost support. Thus, for 
a location where a carrier is obligated to provide 10/1 Mbps service, 
the Commission only requires testing to ensure that the location 
provides 10/1 Mbps service, even if the customer there has ordered and 
is receiving 25/3 Mbps service.
    57. Regarding the trimming of data in calculating compliance with 
the speed standard, the Commission reconsiders the Bureaus' decision to 
exclude from

[[Page 67229]]

compliance calculations any speed test results with values over 150% of 
the advertised speed for the location. Instead of trimming the data at 
the outset as the Bureaus had required, the Commission directs the 
Bureaus to study data collected from carriers' pre-testing and testing 
and determine how best to implement a more sophisticated procedure 
using multiple statistical analyses to exclude outlying data points 
from the test results. The Commission anticipates that the Bureaus will 
develop such a procedure for USAC to implement for each carrier's test 
results in each speed tier in each state or study area and may involve 
determining whether multiple methods (e.g., the interquartile range, 
median absolute deviation, Cook's distance, Isolation Forest, or 
extreme value analysis) flag a particular data point as an anomaly.
    58. The Performance Measures Order also established a framework of 
support reductions that carriers would face in the event that their 
performance testing did not demonstrate compliance with speed and 
latency standards to which each carrier is subject. The Bureaus 
considered numerous approaches to address non-compliance with the 
required speed and latency standards. They adopted a ``four-level 
framework that sets forth particular obligations and automatic triggers 
based on an ETCs degree of compliance with the Commission's latency, 
speed, and, if applicable, MOS testing standards in each state and 
high-cost support program.'' Under this scheme, compliance for each 
standard is separately determined, with the percentage of a carrier's 
measurements meeting the relevant standard divided by the required 
percentage of measurements to be in full compliance. The Bureaus noted 
that the framework ``appropriately encourages carriers to come into 
full compliance and offer, in areas requiring high-cost support, 
broadband service meeting standards consistent with what consumers 
typically experience.''
    59. Broadly, the Commission's goal in establishing a performance 
testing regime is to ensure that consumers receive broadband at the 
speed and latency to which carriers have committed, and for which they 
are receiving support. The Commission's compliance regime is designed 
to encourage them to provide high quality broadband, not to punish 
carriers for failing to perform. That is why the Bureaus adopted an 
interim schedule for withholding support for failing to meet the 
required performance, but to return such support as the carrier comes 
into compliance. This is consistent with the Commission's approach to 
construction of network facilities, i.e. support is withheld if 
carriers do not meet their build-out milestones, but as the carrier 
improves its performance, withheld support is returned. There is no 
correlation in either case between the interim percentages of support 
withheld and the total per-location support; rather, these interim 
withholdings are designed solely to encourage the carrier to meet its 
obligations and ensure that progress is continuing. The Commission 
notes that carriers have their entire support term to improve their 
networks and come into compliance. Even at the end of the support term, 
the Commission's rules provide for a one-year period before any support 
is permanently withheld, during which the carrier can show that it has 
fixed the problems with its network. Further, as explained in the 
following, the Commission add san opportunity for carriers to request a 
larger, statistically valid sample if the carrier believes that the 
small sample size is the cause of the failure to perform. The 
Commission therefore anticipates few instances of non-compliance with 
the Commission's performance measures.
    60. Several parties urge the Commission to adjust the adopted 
framework for non-compliance. USTelecom, ITTA, and WISPA jointly argue 
that non-compliance with the speed and latency requirements is subject 
to support withholding under the established framework that is ``more 
severe[] than non-compliance with build-out milestones.'' For example, 
they observe that a carrier with a compliance gap of less than six 
percent would lose 5% of its high-cost support, while only being 
subject to quarterly reporting obligations for missing its required 
build out by up to 14.9%. USTelecom, ITTA, and WISPA instead propose 
mirroring the precedent established for the deployment milestone 
framework, with non-compliance with the speed and latency requirements 
of 5% or less resulting only in a quarterly reporting obligation and 
non-compliance of 5% to 15% resulting in 5% of funding being withheld. 
Additionally, they request clarification that a carrier not complying 
with both its performance measurement requirements and deployment 
requirements will be subject only to a reduction in support equal to 
the greater of the two amounts, rather than the combined percentage of 
the two amounts. AT&T concurs with petitioners that support reductions 
for failing to comply with performance standards should not be more 
serious than failure to deploy. NTCA, NRECA, and UTC jointly contend 
that ``non-compliance (especially if relatively minor in degree) should 
impose upon the provider the burden of proof to demonstrate a 
justifiable reason for non-compliance and an avenue toward remediation; 
it should not eliminate automatically support upon which the provider 
relies for deployment and operation.'' WTA proposes that rural carriers 
not in full compliance be given a six-month grace period ``to locate 
and correct the problem without reduction or withholding of the monthly 
high-cost support needed to finance the repair, upgrade and operation 
of [their] networks.'' WTA also reiterates that rural local exchange 
carriers (LECs) should not lose high-cost support due to the 
shortcomings of facilities or circumstances over which they have no 
control and are not able to repair or upgrade. Finally, Pe[ntilde]asco 
Valley Telephone Cooperative argues that a 100% success requirement for 
full compliance does not take into account factors outside the 
carrier's control and instead proposes a high percentage benchmark, but 
less than 100%, to account for these variables.
    61. Except as discussed in the following, the Commission generally 
declines to revise the compliance and certification frameworks adopted 
by the Bureaus. The Commission disagrees that the consequences for 
failure to meet its performance measures are greater than that for 
failure to meet deployment obligations. As opposed to the deployment 
obligations that many parties use for comparison, the speed and latency 
standards adopted by the Bureaus include a margin for error and do not 
require carriers to meet the established standards in every instance. 
For example, carriers are required to meet the 100 ms standard for 
latency only 95% of the time, rather than 100% as suggested by some 
parties. Similarly, the Commission allows carriers to be in compliance 
with its speed standards if they provide 80% of the required speed 80% 
of the time. Moreover, the Commission establishes pre-testing periods 
in which no support reductions for failing to meet standards will occur 
to allow carriers to adjust to the new regime. This opportunity for 
pre-testing will ensure that carriers are familiar with the required 
testing and how to properly measure the speed and latency of their 
networks. Because carriers will be aware of which locations are being 
tested, they will be able to monitor their networks prior to beginning 
the required testing to make sure the network is performing properly. 
Further, once a

[[Page 67230]]

location is certified in USAC's High Cost Universal Broadband (HUBB) 
portal, the carrier has certified that it meets the required standards, 
so the performance of the network should not be a surprise to the 
carrier.
    62. Some parties have expressed concern about the performance 
requirements and the non-compliance support reductions. For example, 
USTelecom, ITTA, and WISPA argue that certain aspects of the compliance 
framework ``penalize non-compliance with broadband speed and latency 
requirements more severely than non-compliance with build-out 
milestones.'' They also assert that the compliance framework is ``is 
too stringent and could impede--rather than advance--broadband 
deployment in rural CAF-supported areas.'' The Commission disagrees. As 
a condition of receiving high-cost support, carriers must commit not 
only to building out broadband-capable networks to a certain number of 
locations, but also to providing those locations with a specific, 
defined level of service. Building infrastructure is insufficient to 
meet a carrier's obligation if the customers do not receive the 
required level of service. If a carrier fails to meet its deployment 
requirements, it will face certain support reductions, and if it 
likewise fails to meet its performance requirements for locations to 
which it claims it has deployed, it has failed to fully fulfill its 
obligations. The compliance framework established by the Bureaus is 
essential to ensuring that consumers are receiving the appropriate 
level of service that the carrier has committed to provide.
    63. The Commission emphasizes that at the conclusion of a carrier's 
build-out term, any failure to meet the speed and latency requirements 
is a failure to deploy because the carrier is not delivering the 
service it has committed to deliver. A failure to comply with all 
performance measure requirements will result in the Commission 
determining that the carrier has not fully satisfied its broadband 
deployment obligations at the end of its build-out term and subjecting 
the carrier to the appropriate broadband deployment non-compliance 
support reductions. The Commission does not consider a carrier to have 
completed deployment of a universal service funded broadband-capable 
network simply by entering the required number of locations to which it 
has built into the HUBB; customers at those locations also must be able 
to receive service at the specific speed and latency to which the 
carrier has committed. Simply put, consumers must receive the required 
level of service before a network can be considered to have been fully 
deployed. Otherwise, a carrier would not be meeting the conditions on 
which it receives support to deploy broadband.
    64. Several parties argue that there is insufficient notice for 
clarifying that ``any failure to meet the speed and latency 
requirements will be considered a failure to deploy.'' The Commission 
disagrees. When establishing the CAF in 2011, the Commission noted that 
it ``will require recipients of funding to test their broadband 
networks for compliance with speed and latency metrics,'' and each 
recipient of high-cost support with defined build-out obligations must 
deploy broadband service with available speeds as required by the 
Commission. Indeed, the Commission found that verifiable test results 
would allow the Commission ``to ensure that ETCs that receive universal 
service funding are providing at least the minimum broadband speeds, 
and thereby using support for its intended purpose as required by 
section 254(e)''; if the support is not used to provide the required 
level of service, it is not being used for its intended purpose under 
section 254(e). Carriers do not receive high-cost support to just 
install any network; they must deploy a broadband-capable network 
actually meeting the required speed and latency metrics. Indeed, 
section 54.320(d)(1) of the Commission's rules provides that ``[f]or 
purposes of determining whether a default has occurred, a carrier must 
be offering service meeting the requisite performance obligations.''
    65. The Commission uses the testing data to determine the level of 
compliance for the carrier's network, as defined by the Bureaus in the 
Performance Measures Order. Thus, at the end of a carrier's build-out 
term, if a carrier has deployed to 100% of its required locations, but 
its overall performance compliance percentage is 90%, USAC will recover 
the percentage of the carrier's support equal to 1.89 times the average 
amount of support per location received in the state for that carrier 
over the term of support for the relevant performance non-compliance 
percentage (i.e., 10%), plus 10 percent of the carrier's total relevant 
high-cost support over the support term for that state. Similarly, if a 
carrier deploys to only 90% of the locations to which it is required to 
build, and of those locations, the performance compliance percentage is 
90%, the carrier will be required to forfeit support equal to 1.89 
times the average amount of support per location received in the state 
for that carrier over the term of support for both the 10% of locations 
lacking deployment and an additional 9% of locations (reflecting a non-
compliance percentage of 10% for the 90% deployed locations), plus 10 
percent of the carrier's total relevant high-cost support over the 
support term for that state. However, carriers are permitted up to one 
year to address any shortcomings in their deployment obligations, 
including ensuring that their performance measurements are 100% in 
compliance, before these support reductions will take effect.
    66. To provide certainty to carriers and to take into account that 
carriers may be in compliance with performance obligations during their 
testing periods, but for whatever reason may not be in compliance at 
the end of the support term, the Commission more narrowly tailors its 
end-of-term non-compliance provisions to recognize past compliance. 
Accordingly, the Commission will withhold support where a carrier is 
unable to demonstrate compliance at the end of the support term only 
for the amount of time since the carrier's network performance was last 
fully compliant. Specifically, the Commission modifies the support 
recovery required by section 54.320(d) that is related to compliance 
with performance measures by multiplying it by the percentage of time 
since a carrier was last able to show full compliance with required 
performance testing requirements prior to the end of the support term 
on a quarterly basis. For example, if a carrier's failure to meet end-
of-term performance measures under section 54.320(d) resulted in it 
having to repay support associated with 10% of locations to which it 
was obligated to deploy (and not including any support related to a 
failure to build and install the network as determined by USAC 
verifications) and the carrier's performance testing had not been in 
compliance with the Commission's requirements for the 15 preceding 
quarters of testing, out of a total of 20 annual quarters in which it 
received support, the amount of support to be recovered would be 
multiplied by \15/20\ or \3/4\. If a carrier was not in compliance with 
the Commission's performance measures for 5 quarters of testing but 
comes into compliance before or during end-of-term testing, USAC will 
not recover any support. However, because carriers have an affirmative 
duty to demonstrate compliance with network performance measures--as 
they have with respect to physical build-out milestones--a carrier that 
has never been in compliance with performance testing requirements at 
any time during the testing period will have the appropriate amount of 
support withheld

[[Page 67231]]

at the end of the support term for the entire term. The Commission 
believes that this approach more narrowly ties the non-compliance 
consequences to the period of time in which a carrier fails to comply 
with performance requirements.
    67. In response to commenters' concerns regarding the fairness of 
potentially reducing carriers' support amounts for both lack of 
deployment and non-compliance with speed and latency standards, the 
Commission clarifies that at the end of the support term when USAC has 
performed the calculation to determine the total lack of deployment 
based on the numbers of locations to which the carrier has built out 
facilities and the number of locations that are in compliance with the 
performance measures, USAC will ensure that the total amount of support 
withheld from the carrier because of failure to meet deployment 
milestones and performance requirements does not exceed the 
requirements of Sec.  54.320(d)(2). To facilitate this calculation, the 
Commission reconsiders the decision allowing carriers to recover only 
the support withheld for non-compliance for 12 months or less. When a 
non-compliant carrier comes into a higher level of compliance, USAC 
will now return the withheld support up to an amount reflecting the 
difference between the levels' required withholding. By returning all 
the support USAC may have withheld from a carrier for non-compliance, 
the non-compliance framework will continue to provide an incentive to 
carriers to return to full compliance with the speed and latency 
standards.
    68. Finally, the Commission provides additional flexibility at the 
conclusion of a carrier's build-out term for any carrier that has 
failed to meet its performance requirements and believes that its 
failure to do so is the result of a small sample size. As noted in this 
document, to minimize the burdens of testing, the Bureaus have used a 
``trip-wire'' approach in determining the required sample sizes; while 
these sample sizes are useful for demonstrating where further inquiry 
may be helpful, they are subject to a high margin of error. Thus, if at 
the end of its term, a carrier is shown not to have met its deployment 
obligations due to a failure in meeting the speed and latency 
requirements, the carrier can submit a request to the Bureaus for an 
increased size of random samples that will produce an estimate with a 
margin of error of 5% or less and conduct further testing during the 
additional 12-month period provided in section 54.320(d)(2) to show 
that the carrier is compliance with the Commission's performance 
requirements. If, after this further testing, the carrier is able to 
demonstrate that it fully complies with the required speed and latency 
benchmarks, then the carrier will be considered to have met the 
deployment obligations.
    69. The Commission is persuaded by the record here to modify the 
specific schedule to commence speed and latency tests established in 
the Performance Measures Order. The Performance Measures Order 
established a deadline of July 1, 2020 for carriers subject to the 
Performance Measures Order to report the results of testing, with an 
accompanying certification, for the third and fourth quarters of 2019. 
The Commission now adopts a modified approach to enable better 
individualization to the specific circumstances of a given provider.
    70. The Commission concludes that it is appropriate under the 
circumstances to modify the scheduled start of performance testing to 
link speed and latency testing to the deployment obligations for 
carriers receiving support from each of the various high-cost support 
mechanisms. The Commission believes this solution best balances its 
responsibility to ensure that consumers are receiving the promised 
levels of service in a timely manner with the ability of all carriers 
to undertake the required performance testing. This approach also 
allows larger price cap carriers that are further along in their 
deployments and are more able, at this point, to begin testing to do so 
without additional delay. Moreover, the rolling testing schedule the 
Commission adopts will be less administratively burdensome for 
Commission staff by allowing for more individualized review and 
evaluation of testing results over time. Pushing back testing will have 
the added benefit of allowing additional time for the marketplace to 
further develop solutions for carriers to undertake the required 
testing.
    71. The Commission also implements a pre-testing period that will 
occur prior to the commencement of each carrier's testing start date. 
As with the testing period, this pre-testing period will be aligned 
with a carrier's deployment obligations for the specific high-cost 
mechanism under which it receives support and will require the filing 
of data regarding pre-testing results. Pre-testing will require 
carriers to conduct testing according to the Commission's requirements 
using a USAC-determined random sample of subscribers, and results must 
be submitted to USAC within one week of the end of each quarter (i.e., 
by April 7 for the first quarter, July 7 for the second quarter, etc.).
    72. However, no support reductions will be assessed during the pre-
testing period, as long as carriers actually undertake the pre-testing 
and report their results. Carriers that fail to conduct pre-testing and 
submit results in a timely fashion will be considered to be at Level 1 
non-compliance. The random sample for pre-testing can be used by the 
carrier for a total of two years, meaning that carriers will need to 
obtain a new random sample after two years of pre-testing/testing. 
Thus, for example, if a carrier does one year of pre-testing and then 
one year of testing, it will need to obtain a new random sample prior 
to beginning the second year of testing. While there will be no support 
reductions during the pre-testing period (as long as the carrier 
undertakes the testing and reports results), the filing will allow 
Commission staff to evaluate the pre-testing data and determine if any 
adjustments to the testing regime are needed to ensure that the testing 
period is successful. In addition, pre-testing will give carriers an 
opportunity to see how their networks and testing software and hardware 
perform and make any changes necessary. The Commission directs the 
Bureaus to amend the performance measures as appropriate based on the 
information learned and experience gained from the pre-testing period.
    73. Several industry associations support the approach the 
Commission adopts to tie speed and latency testing to a carrier's 
deployment obligations for the specific high-cost program under which 
it receives support. Specifically, ITTA, USTelecom, and WISPA advocate 
aligning a carrier's performance obligations with its deployment 
obligations, as well as designating the first two quarters of testing 
as ``transitional and not subject to non-compliance measures for any 
performance deficiencies'' to allow carriers to become familiar with 
the testing process. In addition, both NTCA and WTA support linking 
testing obligations to deployment obligations and allowing carriers to 
have a period of advanced testing before the mandated testing period. 
The Commission agrees with those commenters suggesting that a period to 
``test the testing'' will help ensure that all carriers become familiar 
with testing methodologies and equipment, as well as prevent or reduce 
future administrative issues with the testing process.
    74. Accordingly, the Commission adopts the schedule in the 
following for pre-testing and testing obligations

[[Page 67232]]

specific to the carriers receiving high-cost universal service support:

                                      Schedule for Pre-Testing and Testing
----------------------------------------------------------------------------------------------------------------
                Program                        Pre-testing start date                 Testing start date
----------------------------------------------------------------------------------------------------------------
CAF Phase II (Price-cap carrier         January 1, 2020....................  July 1, 2020.
 funding).
RBE...................................  January 1, 2021....................  January 1, 2022.
Alaska Plan...........................  January 1, 2021....................  January 1, 2022.
A-CAM I...............................  January 1, 2021....................  January 1, 2022.
A-CAM I Revised.......................  January 1, 2021....................  January 1, 2022.
ACAM II...............................  January 1, 2022....................  January 1, 2023.
Legacy Rate of Return.................  January 1, 2022....................  January 1, 2023.
CAF II Auction........................  January 1, 2022....................  January 1, 2023.
New NY Broadband Program..............  January 1, 2022....................  January 1, 2023.
----------------------------------------------------------------------------------------------------------------

    75. Because the Commission establishes pre-testing and testing 
periods to coincide with a carrier's specific deployment obligations 
under its respective high-cost mechanism, recipients of CAF Phase II 
model-based support will be the first to undertake the pre-testing 
period on January 1, 2020. These carriers are required to build out to 
80% of their supported locations by December 31, 2019. Recipients of 
CAF Phase II model-based support are primarily larger carriers that are 
better positioned to begin testing sooner due to the availability of 
testing equipment and solutions already in the marketplace for these 
carriers. During the six-month pre-testing period, these carriers will 
be required to test the speed and latency of their networks for a 
weeklong period once per quarter (first and second quarters of 2020) 
and submit the results to the Commission within one week of the end of 
each quarter of pre-testing. The testing period for CAF Phase II model-
based support recipients will commence on July 1, 2020, with speed and 
latency tests occurring for weeklong periods in both the third and 
fourth quarters of 2020 and results of that testing submitted by July 
2021.
    76. RBE support recipients, as well as rate-of-return carriers 
receiving model-based support under both the A-CAM I and the revised A-
CAM I, will follow a similar, but slightly extended schedule. The pre-
testing period for these carriers will commence on January 1, 2021 and 
will last one full year to ensure that the predominantly smaller 
carriers receiving support under these mechanisms have adequate time to 
implement and test their technology and software solutions to meet the 
Commission's performance testing requirements. The Commission believes 
that a longer pre-testing period than the one it adopts for CAF Phase 
II model-based support recipients is warranted to ensure that any 
concerns or issues with the testing process are addressed prior to 
these carriers being subject to support reductions. During this one-
year pre-testing period, this group of carriers will be required to 
test the speed and latency of their networks quarterly for a weeklong 
period and submit the results to the Commission within one week of the 
end of each quarter of pre-testing. The testing period for these 
carriers will begin on January 1, 2022, and results will be submitted 
to the Commission by July 2023.
    77. The Commission also adopts a one-year pre-testing period for 
recipients of support from the CAF Phase II auction and A-CAM II, as 
well as legacy rate-of-return support recipients. However, the 
Commission delays commencement of the pre-testing period for these 
carriers to account for certain timing considerations. For example, the 
Commission is in the process of authorizing CAF Phase II auction 
winners to receive support, and recently authorized rate-of-return 
carriers electing the A-CAM II offer to receive support. Additionally, 
to increase administrative efficiency, the Commission put legacy rate-
of-return carriers on the same schedule as A-CAM II support recipients 
in light of the fact that their deployment requirements started at 
approximately the same time. Thus, to allow time for carriers receiving 
support under these mechanisms not only to be authorized, but also to 
deploy in a timely manner, the Commission institutes a one-year pre-
testing period beginning January 1, 2022. The required testing period 
for these carriers will commence on January 1, 2023. The Commission 
anticipates that these support recipients will have deployed to at 
least 40% of their required locations by the end of 2022. These 
carriers will be subject to the same testing and reporting 
requirements, for both pre-testing and testing, as the other categories 
of carriers described in this document, except that these carriers will 
have a one-year pre-test period rather than a six-month pre-test 
period.
    78. The Commission disagrees with those petitioners urging it to 
adopt a blanket delay of implementation of the testing requirements. 
NTCA contends that the equipment necessary for the most cost-effective 
method of testing is not yet fully developed or widely available, 
particularly in rural markets. NTCA instead proposes that any 
obligations be suspended or waived until a later time--at least 12 
months--following the widespread availability of modems with built-in 
testing capability to the rural market. WTA agrees that the necessary 
testing equipment is unavailable at this time and thus proposes that 
the Commission postpone testing for rural LECs for at least two years. 
WTA also proposes to delay support reductions for non-compliance to 
coincide with build-out milestones. WISPA, ITTA, and NTTA support 
proposals to postpone testing for a time in order to permit equipment 
to become more available and affordable.
    79. The Commission is not convinced that a blanket delay for all 
carriers subject to its performance measure requirements is necessary. 
As petitioners and commenters observe, large carriers and carriers 
serving more urban markets are differently situated than smaller 
carriers serving more rural communities, and these carriers may already 
be positioned to begin testing. Though a minor delay for all carriers 
is warranted to allow USAC time to develop and implement specific IT 
solutions, additional time beyond that for the marketplace to develop 
technical solutions is necessary only for a certain subset of carriers. 
As WTA observes, ``Whiteboxes for MBA testing are being used by large 
carriers, but thus far [its members] have generally been unable to 
obtain Whitebox pricing estimates for their likely levels of demand.'' 
Similarly, NTCA explains that larger carriers are able to purchase 
modems

[[Page 67233]]

and routers at scale or can develop their own proprietary devices, but 
smaller carriers oftentimes must purchase ``off the rack'' technology 
solutions and may have already deployed equipment that cannot be easily 
retrofitted to accommodate performance testing.
    80. The Commission agrees that a one-size-fits-all approach does 
not reflect the realities of the marketplace. However, the tiered 
implementation schedule the Commission adopts strikes a better balance 
between the interests of carriers in cost-effectively testing their 
networks' performance and its need to ensure that those networks are 
performing at the level promised. The Commission further notes that WCB 
has already announced a delay in the requirement to begin testing and 
reporting of speed and latency results until the first quarter of 2020.
    81. Given the changes to the testing framework the Commission 
adopts, it likewise declines WTA's suggestion to delay support 
reductions for non-compliant carriers until they are given an 
opportunity to address any deficiencies in their networks. The pre-
testing period the Commission adopts will provide carriers with ample 
opportunity to identify any issues within their network infrastructure 
that may impact testing results and to rectify those problems prior to 
undertaking the required testing. As a result, carriers should have 
minimal, if any, technological or software challenges that prevent them 
from meeting the Commission's performance requirements and would 
require an opportunity to cure. Moreover, because carriers will be 
testing only those locations that the carrier has certified are 
deployed with the requisite speed, the Commission does not see a 
compelling reason to delay support reductions for non-compliance.
    82. The Commission likewise declines to further delay testing and 
reporting obligations for Alaska Communications Systems (ACS). Because 
carriers serving certain non-contiguous areas of the United States face 
different operating conditions and challenges from those faced by 
carriers in the contiguous 48 states, the Commission concluded that it 
was appropriate to adopt tailored service obligations for each non-
contiguous carrier that elected to continue to receive frozen support 
amounts for Phase II in lieu of the offer of model-based support. For 
ACS, the Commission adopted a 10-year term of support to provide a 
minimum of 10/1 Mbps broadband service with a roundtrip provider 
network latency requirement of 100 ms or less to a minimum of 31,571 
locations.
    83. ITTA, USTelecom, and WISPA propose that testing and reporting 
obligations for ACS be delayed for one year from the date on which they 
begin for other CAF Phase II model-based support recipients. These 
parties contend that ACS should be given more time because it is still 
in the process of planning its CAF II deployment and has not identified 
or reported the specific customer locations that it intends to serve. 
ITTA, USTelecom, and WISPA also argue that additional time also is 
necessary for ACS to identify one or more suitable points at which 
traffic can be aggregated for transport to the continental U.S.
    84. Because the Commission is instituting a pre-testing period and 
delaying the start of the required testing period for CAF Phase II 
model-based support recipients until July 1, 2020, the Commission 
anticipates that ACS will have had ample time to finalize deployment 
plans and identify a suitable aggregation point or points. Thus, the 
Commission is unconvinced by the argument advanced by ITTA, USTelecom, 
and WISPA that these issues warrant further delay for ACS. Moreover, 
the Commission notes that ACS already has passed its first deployment 
milestone and certified to locations in the HUBB. Thus, ACS should be 
fully prepared to commence testing on the same schedule as other CAF 
Phase II support recipients.
    85. NTCA requests clarification that the Performance Measures Order 
applies only to high-cost recipients with mandatory build-out 
obligations. Though some Alaskan rate-of-return carriers are subject to 
defined build-out obligations, NTCA observes that if a carrier has ``no 
mandated build-out obligation, there is neither a clear speed threshold 
to which a carrier can be required to test nor a specified number of 
locations at which the test can be conducted.'' NTCA argues that 
additional proper notice-and-comment rulemaking procedures would be 
needed to subject carriers without mandatory build-out obligations to 
any required performance measures.
    86. Absent any specific deployment requirements, the Commission 
lacks a standard for determining whether a carrier's deployment meets 
the required performance measures. As a result, consistent with NTCA's 
request, the Commission clarifies that only carriers subject to defined 
build-out requirements are required to test the speed and latency of 
their networks in accord with Commission rules. Alaskan rate-of-return 
carriers that have committed to maintaining existing service levels 
therefore are not subject to the performance measures adopted by the 
Bureaus and modified herein.
    87. Alaskan rate-of-return carriers that have committed to defined 
build-out obligations, however, must conduct speed and latency testing 
of their networks. That said, the Commission recognizes that many of 
these carriers lack the ability to obtain terrestrial backhaul such as 
fiber, microwave, or other technologies and instead must rely 
exclusively on satellite backhaul. Consistent with the standards the 
Commission adopted for high-latency service providers in the CAF Phase 
II auction, it requires Alaska Plan carriers using satellite or 
satellite backhaul to certify that 95% or more of all testing hour 
measurements of network round trip latency are at or below 750 ms for 
any locations using satellite technology. The Commission also reaffirms 
that these carriers must certify annually that no terrestrial backhaul 
options exist, and that they are unable to satisfy the standard 
performance measures due to the limited functionality of the available 
satellite backhaul facilities. To the extent that new terrestrial 
backhaul facilities are constructed, or existing facilities improve 
sufficiently to meet the public interest obligations, the Commission 
has required funding recipients to meet the standard performance 
measures within twelve months of the new backhaul facilities becoming 
commercially available.

III. Procedural Matters

    88. Paperwork Reduction Act. This document contains new information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. It will be submitted to the Office of 
Management and Budget (OMB) for review under Section 3507(d) of the 
PRA. OMB, the general public, and other Federal agencies will be 
invited to comment on the new information collection requirements 
contained in this proceeding. In addition, the Commission notes that 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), the Commission previously sought 
specific comment on how it might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.
    89. Congressional Review Act. The Commission has determined, and 
the Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget, concurs that these rules are non-major 
under the Congressional Review Act, 5 U.S.C. 804(2). The Commission 
will send a copy of this Order on

[[Page 67234]]

Reconsideration to Congress and the Government Accountability Office 
pursuant to 5 U.S.C. 801(a)(1)(A).
    90. As required by the Regulatory Flexibility Act of 1980 (RFA), as 
amended, an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the USF/ICC Transformation FNPRM, 76 FR 78384, December 
16, 2011. The Commission sought written public comment on the proposals 
in the USF/ICC Transformation FNPRM, including comment on the IRFA. The 
Bureaus included a Final Regulatory Flexibility Analysis (FRFA) in 
connection with the Performance Measures Order. This Supplemental Final 
Regulatory Flexibility Analysis (Supplemental FRFA) supplements the 
FRFA in the Performance Measures Order to reflect the actions taken in 
the Order on Reconsideration and conforms to the RFA.
    91. The Order on Reconsideration addresses issues raised by parties 
in petitions for reconsideration and applications for review of the 
Performance Measures Order. In the Performance Measures Order, the 
Bureaus established how recipients of CAF support must test their 
broadband networks for compliance with speed and latency metrics and 
certify and report those results. In doing so, the Bureaus adopted a 
flexible framework to minimize the burden on small entities--for 
example, by permitting carriers to choose from one of three 
methodologies to conduct the required testing.
    92. The Order on Reconsideration affirms certain key components of 
the Performance Measures Order while making several modifications to 
the requirements. Specifically, in the Order, the Commission maintains 
the choice between three testing methodologies for carriers to conduct 
required testing; tie the implementation of speed and latency testing 
to a carrier's deployment obligations for the specific high-cost 
program under which it receives support; adopt a pre-testing regime to 
give both carriers and the Commission the opportunity to ensure that 
carriers are familiar with the testing regime and minimize any 
administrative issues; maintain the previously-adopted testing sample 
sizes but clarify that carriers must use the same locations for testing 
both latency and speed; adopt a revised definition of FCC-designated 
Internet Exchange Point (IXP); confirm that end-points for testing are 
from the customer's side of any network being used to an FCC-designated 
IXP; maintain the existing daily testing time period and quarterly 
testing requirement; allow further flexibility for the timing of speed 
tests but maintain the same frequency of latency testing; and reaffirm 
the compliance standards and associated support reductions for non-
compliance.
    93. There were no comments raised that specifically addressed how 
broadband service should be measured, as presented in the USF/ICC 
Transformation FNPRM IRFA. Nonetheless, the Commission has considered 
the potential impact of the rules proposed in the IRFA on small 
entities and reduced the compliance burden for all small entities in 
order to reduce the economic impact of the rules enacted herein on such 
entities.
    94. 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 Small Business 
Administration (SBA).
    95. As noted in this document, the Performance Measures Order 
included a FRFA. In that analysis, the Bureaus described in detail the 
small entities that might be significantly affected. Accordingly, in 
this FRFA, the Commission hereby incorporates by reference the 
descriptions and estimates of the number of small entities from the 
previous FRFA in the Performance Measures Order.
    96. The Commission expects the amended requirements in the Order on 
Reconsideration will not impose any new or additional reporting or 
recordkeeping or other compliance obligations on small entities and, as 
described in the following, will reduce their costs.
    97. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include (among others) the following four alternatives: (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.
    98. The Commission has taken further steps which will minimize the 
economic impact on small entities. In the Order on Reconsideration, the 
Commission adopts a delayed schedule providing for a period of ``pre-
testing'' for all carriers and later start dates for carriers that do 
not receive CAF Phase II model-based support. Thus, CAF Phase II model-
based support recipients, which include only large carriers, must begin 
pre-testing and testing in 2020, whereas legacy rate-of-return 
carriers, many of which are smaller entities, must begin pre-testing in 
2022 and testing in 2023, and small carriers receiving A-CAM I model 
support do not begin pre-testing until 2021 and testing in 2022. Pre-
testing will give carriers time to correct any issues with their 
networks or with their testing infrastructure without being subject to 
support reductions, and the delayed schedule for non-CAF Phase II 
carriers will permit smaller entities even more time to prepare to meet 
the Commission's testing requirements.
    99. The Commission also now permits greater flexibility for 
carriers to conduct speed tests within an hour. In the Order on 
Reconsideration, the Commission clarifies that carriers may not 
necessarily start testing speed at the very beginning of each test 
hour. Instead, a carrier must simply report a successful speed test for 
each hour, except a carrier that begins attempting a speed test within 
the first 15 minutes of an hour and checks for cross-talk in one-minute 
intervals (using the cross-talk thresholds of 64 Kbps for download and 
32 Kbps for upload) may record that no test was successful during that 
test hour.
    100. Finally, the Commission clarifies that carriers may use the 
same subscriber locations for testing both speed and latency, halving 
the potential burdens for carriers that may have otherwise believed it 
necessary to test separate subscriber locations for speed and latency. 
This clarification is most significant for the smallest carriers, which 
may use less automated means of testing than larger carriers.

IV. Ordering Clauses

    Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1-4, 5, 201-206, 214, 218-220, 251, 252, 254, 
256, 303(r), 332, 403, and 405 of the Communications Act of 1934, as 
amended, and section 706 of the Telecommunications Act of 1996, 47 
U.S.C. 151-155, 201-206, 214, 218-220, 251, 256, 254, 256, 303(r), 403 
and 405, the Order on Reconsideration is

[[Page 67235]]

adopted, effective thirty (30) days after publication of the text or 
summary thereof in the Federal Register, except for paragraphs 15, 16, 
19, 22, 23, 26, 31 through 38, 43 through 49, 52, 53, 64, and 75 
through 91, which contain new or modified information collection 
requirements, that will not be effective until approved by the Office 
of Management and Budget. The Commission will publish a document in the 
Federal Register announcing the effective date for those sections not 
yet effective. It is the Commission's intention in adopting these rules 
that if any of the rules that the Commission retains, modifies, or 
adopts in this document, or the application thereof to any person or 
circumstance, are held to be unlawful, the remaining portions of the 
rules not deemed unlawful, and the application of such rules to other 
persons or circumstances, shall remain in effect to the fullest extent 
permitted by law.
    101. It is further ordered that, pursuant to the authority 
contained in section 405 of the Communications Act of 1934, as amended, 
47 U.S.C. 405, and Sec. Sec.  0.331 and 1.429 of the Commission's 
rules, 47 CFR 0.331 and 47 CFR 1.429, the Petition for Reconsideration 
and Clarification filed by USTELECOM--THE BROADBAND ASSOCIATION, ITTA--
THE VOICE OF AMERICA'S BROADBAND PROVIDERS, and the WIRELESS INTERNET 
SERVICE PROVIDERS ASSOCIATION on September 19, 2018 is granted in part 
and denied in part to the extent described herein, and the Petition for 
Partial Reconsideration filed by MICRONESIAN TELECOMMUNICATIONS 
CORPORATION on September 19, 2018 is denied.
    102. It is further ordered that, pursuant to the authority 
contained in 5(c)(5) of the Communications Act of 1934, as amended, 47 
U.S.C. 155(c)(5), and Sec.  1.115(g) of the Commission's rules, 47 CFR 
1.115(g), the Application for Review and Request for Clarification 
filed by NTCA--THE RURAL BROADBAND ASSOCIATION on September 19, 2018 
and the Application for Review filed by WTA--ADVOCATES FOR BROADBAND on 
September 19, 2018, are granted in part and denied in part to the 
extent described herein.

List of Subjects in 47 CFR Part 54

    Communications common carriers, Health facilities, Infants and 
children, internet, Libraries, Reporting and recordkeeping 
requirements, Schools, Telecommunications, Telephone. Federal 
Communications Commission.

Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR part 54 as follows:

PART 54--UNIVERSAL SERVICE

0
1. The authority for part 54 continues to read as follows:

    Authority: 47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 
254, 303(r), 403, and 1302, unless otherwise noted.


0
2. Amend Sec.  54.320 by revising paragraphs (d)(1)(ii) and (iii), the 
first sentence of paragraph (d)(1)(iv)(A) and paragraph (d)(2) to read 
as follows:


Sec.  54.320  Compliance and recordkeeping for the high-cost program.

* * * * *
    (d) * * *
    (1) * * *
* * * * *
    (ii) Tier 2. If an eligible telecommunications carrier has a 
compliance gap of at least 15 percent but less than 25 percent of the 
number of locations that the eligible telecommunications carrier is 
required to have built out to or, in the case of Alaska Plan mobile-
carrier participants, population covered by the specified technology, 
middle mile, and speed of service in the carrier's approved performance 
plan, by the interim milestone, USAC will withhold 15 percent of the 
eligible telecommunications carrier's monthly support for that support 
area and the eligible telecommunications carrier will be required to 
file quarterly reports. Once the eligible telecommunications carrier 
has reported that it has reduced the compliance gap to less than 15 
percent of the required number of locations (or population, if 
applicable) for that interim milestone for that support area, the 
Wireline Competition Bureau or Wireless Telecommunications Bureau will 
issue a letter to that effect, USAC will stop withholding support, and 
the eligible telecommunications carrier will receive all of the support 
that had been withheld. The eligible telecommunications carrier will 
then move to Tier 1 status.
    (iii) Tier 3. If an eligible telecommunications carrier has a 
compliance gap of at least 25 percent but less than 50 percent of the 
number of locations that the eligible telecommunications carrier is 
required to have built out to by the interim milestone, or, in the case 
of Alaska Plan mobile-carrier participants, population covered by the 
specified technology, middle mile, and speed of service in the 
carrier's approved performance plan, USAC will withhold 25 percent of 
the eligible telecommunications carrier's monthly support for that 
support area and the eligible telecommunications carrier will be 
required to file quarterly reports. Once the eligible 
telecommunications carrier has reported that it has reduced the 
compliance gap to less than 25 percent of the required number of 
locations (or population, if applicable) for that interim milestone for 
that support area, the Wireline Competition Bureau or Wireless 
Telecommunications Bureau will issue a letter to that effect, the 
eligible telecommunications carrier will move to Tier 2 status.
    (iv) * * *
    (A) USAC will withhold 50 percent of the eligible 
telecommunications carrier's monthly support for that support area, and 
the eligible telecommunications carrier will be required to file 
quarterly reports. * * *
* * * * *
    (2) Final milestone. Upon notification that the eligible 
telecommunications carrier has not met a final milestone, the eligible 
telecommunications carrier will have twelve months from the date of the 
final milestone deadline to come into full compliance with this 
milestone. If the eligible telecommunications carrier does not report 
that it has come into full compliance with this milestone within twelve 
months, the Wireline Competition Bureau--or Wireless Telecommunications 
Bureau in the case of mobile carrier participants--will issue a letter 
to this effect. In the case of Alaska Plan mobile carrier participants, 
USAC will then recover the percentage of support that is equal to 1.89 
times the average amount of support per location received by that 
carrier over the support term for the relevant percentage of 
population. For other recipients of high-cost support, USAC will then 
recover the percentage of support that is equal to 1.89 times the 
average amount of support per location received in the support area for 
that carrier over the term of support for the relevant number of 
locations plus 10 percent of the eligible telecommunications carrier's 
total relevant high-cost support over the support term for that support 
area. Where a recipient is unable to demonstrate compliance with a 
final performance testing milestone, USAC will recover the percentage 
of support

[[Page 67236]]

that is equal to 1.89 times the average amount of support per location 
received in the support area for the relevant number of locations for 
that carrier plus 10 percent of the eligible telecommunications 
carrier's total relevant high cost-support over the support term for 
that support area, the total of which will then be multiplied by the 
percentage of time since the carrier was last able to demonstrate 
compliance based on performance testing, on a quarterly basis. In the 
event that a recipient fails to meet a final milestone both for build-
out and performance compliance, USAC will recover the total of the 
percentage of support that is equal to 1.89 times the average amount of 
support per location received by that carrier over the support term for 
the relevant number of locations to which the carrier failed to build 
out; the percentage of support that is equal to 1.89 times the average 
amount of support per location received in the support area for the 
relevant number of locations for that carrier multiplied by the 
percentage of time since the carrier was last able to demonstrate 
compliance based on performance testing; and 10 percent of the eligible 
telecommunications carrier's total relevant high-cost support over the 
support term for that support area.

[FR Doc. 2019-26448 Filed 12-6-19; 8:45 am]
 BILLING CODE 6712-01-P