[Federal Register Volume 85, Number 8 (Monday, January 13, 2020)]
[Rules and Regulations]
[Pages 1761-1770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28501]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[WC Docket No. 10-90; DA 19-1165; FRS 16332]


Connect America Fund

AGENCY: Federal Communications Commission.

ACTION: Final action.

-----------------------------------------------------------------------

SUMMARY: In this document, the Wireline Competition Bureau (the Bureau) 
establishes procedures to ensure swift and efficient administration of 
the voluntary process for the long-form applicants in the Connect 
America Phase II Auction (Phase II Auction) to facilitate post-auction 
review of the defined deployment obligations (and associated support) 
on a state-by-state basis when the total number of actual locations in 
eligible areas is less than the number of funded locations.

DATES: Effective February 12, 2020.

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

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
in WC Docket No. 10-90; DA 19-1165, adopted and released on November 
12, 2019. The full text of the 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/DA-19-1165A1.pdf.

I. Introduction

    1. The Phase II Auction is one part of a multi-step process 
comprehensively reforming and modernizing the high-cost component of 
the Universal Service Fund. At the conclusion of this auction, 103 
bidders won $1.49 billion in support over 10 years to provide fixed 
broadband and voice services to over 700,000 locations in high-cost 
areas in 45 states. Then, 134 applicants submitted the long-form 
application portion of the FCC Form 683 by the October 15, 2018 
deadline. For these long-form applicants, the Commission created a 
voluntary process to facilitate post-auction review of the defined 
deployment obligations (and associated support) on a state-by-state 
basis when the total number of actual locations in eligible areas is 
less than the number of funded locations. The Bureau in the Order 
establishes procedures to ensure swift and efficient administration of 
this process.

II. Discussion

    2. In the Order, the Bureau establishes an Eligible Locations 
Adjustment Process (ELAP) consistent with the parameters set forth in 
the Phase II Auction Reconsideration Order, 83 FR 15982, April 13, 
2018, and prior Commission guidance for making adjustments to defined 
deployment obligations. The Bureau adopts a challenge framework, 
generally as proposed in the Locations Adjustment Public Notice, 83 FR 
49040, September 28, 2018. After setting forth this framework, the 
Bureau follows with more detailed information regarding evidentiary 
standards, location data formatting, confidentiality of information, 
and future post-adjudication verification. The Bureau conforms this 
process, where necessary, to the requirements of the Privacy Act of 
1974, as amended, and related federal rules.
    3. Participant Submission. This process begins with a new, one-time 
collection of information from support recipients that seek to 
participate in ELAP (participants) that includes

[[Page 1762]]

information about all eligible locations within the state as well as 
evidence substantiating the completeness and accuracy of such 
information. Participants must certify the accuracy of their 
submissions as of the date of submission under penalty of perjury in 
accordance with the proposal in the Locations Adjustment Public Notice. 
As specified in the Bureau's proposal, this certification must be 
signed by an individual with relevant knowledge (such as an officer of 
the company), certifying under penalty of perjury that the participant 
has engaged in due diligence to verify statements and evidence 
presented in this challenge process and that such information is 
accurate to the best of the certifying party's knowledge and belief.
    4. Participants may certify their submissions at any time and amend 
and recertify their submissions until the filing deadline. In 
permitting this flexibility, the Bureau concurs with Verizon's comment 
that the Bureau's original proposal--requiring certification of 
submissions at or near the deadline for submitting information--is too 
onerous because it requires participants to continuously monitor and 
update their data and submissions as updates are made to a data source/
sources; instead, participants will be able to rely on any reasonably 
current data source, i.e., a source containing data that describes 
conditions as they exist within the year preceding the submission 
deadline.
    5. In the Phase II Auction Reconsideration Order, the Commission 
required participants to file actual location data ``within a year'' of 
the publication of the Phase II auction closing public notice which 
occurred on August 28, 2018. Pursuant to the delegated authority 
entrusted to us in the Phase II Auction Reconsideration Order to adopt 
``necessary implementation details,'' and to issue an order ``detailing 
instructions, deadlines and requirements for filing valid geolocation 
data and evidence for both support recipients and commenters,'' the 
Bureau waives and extends this deadline consistent with the timing of 
the Bureau's implementation. The Bureau's implementation of ELAP has 
and will continue to involve significant coordination of resources, 
including the creation of a specific module in the High Cost Universal 
Broadband (HUBB) portal to accept ELAP-related filings and to 
facilitate access to such information; the module, in turn, will help 
facilitate swift implementation of similar processes in other high-cost 
programs. The Bureau will announce by public notice when the module is 
ready to accept the required information from participants as well as 
the deadline for submitting and certifying such information. The Bureau 
will set a deadline that provides participants with at least a three-
month timeframe to upload information into the module, correct any 
errors identified through the module's validation processes, and 
certify such information. The submission deadline cannot occur before 
the Commission receives OMB approval of the collection pursuant to the 
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13.
    6. Protective Order. Before the participant's filing deadline, the 
Bureau will adopt a protective order consistent with the requirements 
specified herein to protect against disclosure or misuse of information 
submitted by parties pursuant to ELAP.
    7. Prima Facie Determination. Within 60 days following the 
participant submission deadline, the Bureau will release a list of 
participants that have met the prima facie evidentiary standards for 
location modification, along with the certain location information for 
qualifying locations and prospective locations, i.e., state, study area 
code (SAC), addresses, geocoordinates, and number of units. The Bureau 
directs the Universal Service Administrative Company (USAC) to use the 
reported geocoordinates of these locations to populate a publicly 
available map (ELAP Map) of presumptively eligible locations so that 
outside parties that qualify as a relevant stakeholder may decide 
whether to file challenges. The Bureau will dismiss any participant 
submission that is not certified, that includes incomplete or 
improperly formatted location data, that fails to include a description 
of methodology for identifying all eligible locations, or that fails to 
provide at least some supporting evidence (or show cause why supporting 
evidence is not needed or unavailable).
    8. Stakeholder Challenge. Eligible stakeholders will then have 90 
days from the public release of the participants' location information 
to establish their eligibility, sign the protective order, and review 
and challenge the participants' evidence (challenge window). WISPA 
recommends that the Bureau limits the challenge window to 60 days, 
stressing that stakeholders will prepare their challenge information 
concurrent with the preparation and submission of information by 
participants. While stakeholders may do some preparation at the same 
time as participants, stakeholders will submit challenges that are 
responsive to the participants' location information by identifying 
locations, or multiple units, that were not reported or misreported by 
the participant. For this reason, stakeholders will need time to access 
and review participants' location information and to compare such 
information against their own. A 60-day time frame does not afford 
stakeholders adequate time to complete these steps prior to submitting 
their challenges, particularly as some stakeholders may be state 
regulatory or public interest entities that will be responding to 
participant information for large or widespread geographic areas.
    9. The stakeholder location information will be used to further 
populate and revise the ELAP Map to inform and supplement the work of 
other stakeholders filing challenges against the same participant in 
the same state prior to the close of the challenge window. Participants 
will have access to this information as it is processed but will not be 
able to file replies until after the close of the challenge window. 
Unlike participant location information, stakeholder location 
information will not be publicly available.
    10. Participant Reply. Challenged participants will have 30 days 
from the stakeholder submission deadline (response window) to: (1) 
Access and review certified data submitted by the stakeholder with 
respect to the challenged area; and (2) submit additional data/
information to oppose the challenge (response window). If a challenged 
participant does not oppose the challenge, the participant need not 
submit any additional information. A challenged participant, however, 
will not have a further opportunity to submit any additional 
information or data for the Bureau's consideration after the response 
window closes.
    11. The response window is for a longer time frame than the Bureau 
originally proposed, as most commenters stress the need for at least 30 
days to review stakeholder filings and prepare a response. Participants 
must certify, under penalty of perjury, the truth and accuracy of 
information submitted in the reply. Verizon requests a 45-day window 
for preparing and filing a reply to ``give support recipients enough 
time to review the diverse forms of evidence and, if necessary, conduct 
field research to determine whether the additional addresses submitted 
by commenters meet the Commission's definition of a `location.' '' 
Participants, however, should be well familiar with supporting 
evidence, will have a targeted number of locations to research, and are 
likely to already have (or should

[[Page 1763]]

have) some information about those locations because of their initial 
submissions. For this reason, the Bureau determines that a 30-day 
response window strikes the appropriate balance between the interests 
of the participant and the public interest in swift resolution of these 
claims.
    12. Location Adjudication. In the Phase II Auction Reconsideration 
Order, the Commission directed the Bureau to adjudicate participants' 
requests for adjustment of defined deployment obligations based on the 
preponderance of the evidence standard. In the Locations Adjustment 
Public Notice, the Bureau proposed that participants would also bear 
the burden of persuasion. The Bureau received no comments on such 
proposal. Accordingly, the Bureau will only modify a participant's 
defined deployment obligation to the extent that the participant 
produces adequate evidence demonstrating that it is more likely than 
not that the defined deployment obligation is greater than the number 
of actual locations within the state. In adjudicating these claims, the 
Bureau will consider stakeholder challenges and participant replies to 
determine not only the overall credibility of participants' information 
but also to adjust the participants' qualifying location count.
    13. The Bureau declines WISPA's suggestion that it resolves these 
cases within 90 days of the reply deadline. While the Bureau 
acknowledges that expeditious resolution is critical to participants' 
financial and deployment plans (including adjustments to the letter of 
credit), it is difficult to predict the number of participants and 
stakeholders, and the associated amount of information that may be 
submitted; moreover, the Bureau expects that information is likely to 
be highly variable. During ELAP, participants may deploy service to, 
and report as served, any known actual location and must report such 
locations in their initial ELAP submission. The Bureau expects to 
resolve all ELAP disputes well in advance of the participants' first 
deployment milestone. The Bureau also declines to adopt WISPA's 
suggestion that the Bureau allow participants and stakeholders to 
bypass the ELAP adjudication process by entering into negotiated 
settlements, subject to review and adjustment by the Bureau. Allowing 
for a negotiated settlement process would introduce additional 
administrative burdens without corresponding efficiencies, as both 
processes should produce the same result, i.e., a complete and accurate 
accounting of all qualifying locations. Without careful Bureau 
oversight, a settlement process between outside parties is less optimal 
and could introduce into ELAP additional considerations contrary to 
USF-related goals as well as disparities in bargaining power and 
expertise that ELAP protects against.
    14. Support Adjustment. The Commission has directed that, in 
circumstances where the Bureau determines that modification of the 
participant's number of funded locations is warranted, it must reduce 
the authorized support on a pro rata basis. Consistent with the 
Bureau's proposal, it will order a pro-rata reduction in future 
payments for the remainder of the support term proportionally to 
reflect the total amount of reduction. Participants will be permitted 
to adjust their letters of credit to reflect the new authorized funding 
amount once the Bureau's order modifying the authorized support is 
issued.
    15. As an initial step, the Commission requires participants to 
submit a list of qualifying locations within the state. Qualifying 
locations include every location eligible for high-cost support, i.e., 
residential housing unit or small business served with mass market 
services. In the Bureau's HUBB Reporting Public Notice, the Bureau 
clarified that qualifying locations cannot be abandoned, derelict, 
condemned, or otherwise uninhabitable. The Bureau and USAC have 
provided further guidance and clarification on the meaning of a 
qualifying location for carriers reporting location data into the HUBB 
to demonstrate compliance with defined deployment obligations, which 
the Bureau now incorporates here as generally applicable to ELAP. HUBB 
Public Notice, 31 FCC Rcd 12900; HUBB Frequently Asked Questions, 
https://www.usac.org/_res/documents/hc/pdf/tools/HC-HUBB-FAQ.pdf. 
Participants should follow this guidance unless and until the Bureau or 
the Commission issues different guidance.
    16. As the Bureau noted in the Locations Adjustment Public Notice, 
however, there are important distinctions in reporting served locations 
in the HUBB for the purpose of demonstrating compliance with a defined 
deployment obligation and reporting qualifying locations for the 
purpose of seeking adjustment to a defined deployment obligation. 
Carriers reporting information in the HUBB must report information 
about served locations, i.e., qualifying locations to which the 
reporting carrier can provide the requisite level of service within ten 
business days of a customer request. Such locations need not be 
occupied but cannot be unfinished or an ongoing or future real estate 
development. In ELAP, however, participants seeking to reduce their 
defined deployment obligation are to report all locations that they 
will be capable of serving within the six-year build out period. 
Accordingly, the Bureau sought comment on whether participants should 
be required or permitted to include in their location information, 
information about unfinished properties or prospective developments 
that have a reasonable certainty of coming into existence within the 
six-year build-out period (prospective locations).
    17. ITTA argues that participants must report prospective locations 
to avoid a ``perverse'' effect on universal service goals where the 
``net diminution in unserved locations would be undermined by the 
addition of new unserved locations that would have been served'' had 
the participants' defined deployment obligation not been adjusted. ITTA 
stresses that this is particularly true when ``unfinished residential 
or business locations are at the edge of participants' service areas 
and the business case does not exist to extend service to these 
locations absent universal service support.'' Most commenters, however, 
argue against such a requirement, stressing that there are too many 
variables in determining the probability of whether and, if so, when, 
an unfinished or planned development or construction project will be 
completed. These commenters stress that the research and documentation 
requirements necessary to identify all prospective locations is too 
burdensome. Further, USTelecom asserts, requiring participants to serve 
a revised location count that includes prospective locations would be 
an ``unfair burden completely outside of the provider's control.''
    18. The Bureau agrees with the majority of commenters. Accordingly, 
the Bureau will not require, but will permit, participants to report 
prospective locations as part of their initial submission. The Bureau 
finds that this approach is consistent with the purpose and scope of 
ELAP, a process designed to address the inherent limitations in the 
model's underlying data inputs by reducing funded location estimates. 
This process refines the defined deployment obligation but does not 
alter the nature of the obligation; participants, like all other 
funding recipients in the same programs, must serve a specific number 
of locations with the requisite level of service by certain deadlines. 
The number of locations that they must serve is based

[[Page 1764]]

on data estimates describing conditions at a point in time. 
Participants may report toward satisfaction of their build-out 
requirements, any qualifying location within eligible areas, regardless 
of whether such location preexists the estimates or is newly built. 
They are also expected to adopt flexible network plans that permit 
reallocation of resources, as necessary, to deal with inevitable 
changes in consumer demand, network capacity, as well as location 
eligibility.
    19. The Bureau does not expect significant changes in the net 
number of actual locations in these high-cost areas within the time-
limited build-out period, although it recognizes that there is likely 
to be some fluctuation in where locations are situated as certain 
locations become unserviceable and new locations are built. If the 
Bureau were to require participants to count all prospective locations 
toward their overall qualifying location count, participants would have 
less overall flexibility in responding to such fluctuations in 
comparison to a Phase II auction support recipient that did not 
participate in ELAP and therefore, has a defined deployment obligation 
that does not include prospective locations. The Bureau agrees with the 
views of several commenters that mandatory reporting of all prospective 
locations introduces uncertainty into an otherwise clear evidentiary 
burden. The Bureau further recognizes, however, consistent with ITTA 
comments, that there may be circumstances where a participant 
intentionally excludes from its location counts almost completed 
developments at the edge of denser communities, where service costs may 
exceed that of the average qualifying location due to the necessity of 
extending network facilities. For this reason, the Bureau will permit 
relevant stakeholders to argue for inclusion of these kinds of 
locations in actual locations counts.
    20. Some participants may want to commit to serving some number of 
locations greater than the number of qualifying actual locations that 
it has been able to find, but less than the CAM-estimated number of 
locations. Accordingly, and consistent with some commenters' 
suggestion, the Bureau will permit participants to report location data 
for prospective locations. These prospective locations may include 
plots, parcels, or partially completed structures in planned unit 
developments or structures currently undergoing renovation. 
Participants should exercise due diligence when assessing the 
likelihood that these reported prospective locations will become 
qualifying locations and in assessing the overall probability of 
fluctuations in the net number of qualifying locations within the six-
year buildout time frame to ensure future compliance with adjusted 
defined deployment obligations.
    21. Together, qualifying locations and voluntarily-reported 
prospective location data form the actual location count that provides 
the evidentiary basis for adjusting participants' defined deployment 
obligation. As recognized by the Commission in the Phase II Auction 
Reconsideration Order, however, participants have the incentive to 
maximize their average ratio of support and build-out costs, even when 
such maximization means leaving actual locations unserved and support 
unclaimed. For this reason, the Commission directed the Bureau to adopt 
requirements that would help ensure that the actual location counts 
submitted by participants are complete and demonstrate that ``no 
additional locations could be found.'' As explained more fully in the 
following, these requirements include the submission of a methods 
description and some supporting evidence that those methods were 
applied systematically in the relevant areas.
    22. Methods Description. In the Locations Adjustment Public Notice, 
the Bureau proposed that participants submit, in addition to location 
information, information regarding the participants' methodology for 
identifying all such locations within eligible areas within the state. 
The Bureau sought comment on whether it should require participants to 
use specific Global Positioning System (GPS) methods or if they should 
be permitted to rely on any of the three generally accepted GPS methods 
outlined by USAC in its HUBB guidance, i.e., field research, computer-
based geolocation, or automated address geolocation (databases). All 
commenters commenting on this issue supported flexibility of method, 
stating that the best choice of method may be determined by variable 
geographic features, availability of resources, and the technology used 
to provide service. The Bureau agrees with commenters' suggestions. 
Accordingly, participants will be able to use any of the three 
generally accepted GPS methods to compile location information.
    23. In the Locations Adjustment Public Notice, the Bureau also 
sought comment on whether participants should be required to justify 
their methodological choices and make clear that they systematically 
and reasonably gathered location data for all eligible areas. Such 
information is essential to the Bureau's ability to evaluate whether 
the participants' location information is accurate and complete. 
Consistent with this proposal, several commenters acknowledge that a 
description of method is necessary for the evaluation of location 
information.
    24. The Bureau acknowledges Hughes' concern that many commercial 
vendors treat their methods for identifying locations as proprietary 
content and prevent disclosure. The Bureau declines to follow Hughes' 
suggestion, however, to require all potential commercial vendors or the 
actual vendors upon which participants rely to establish that their 
databases meet Commission standards. Commission collection and 
comparison of such data methods and information from such vendors 
(which could be numerous), as well as the management of such 
information, is prohibitively burdensome, particularly given the 
limited purpose and time constraints of this process. Further, the 
Bureau lacks delegated authority to impose such obligations.
    25. The Bureau also disagrees with Hughes contention that absent 
such a process, requiring participants to establish that their location 
data is accurate, reliable and complete excludes reliance on most 
commercial databases. Participants need not disclose the specific 
proprietary methods used by vendors to compile location data so long as 
they demonstrate that the database or geolocation software has an 
evidentiary basis, such as customer records. Participants must also 
establish the source's accuracy and reliability in the relevant 
geographic areas, which may be accomplished through, for example, 
statistical sampling and verification of sampled locations in eligible 
areas. While the Bureau encourages participants to use publicly 
available databases/information, including E911, tax records, real 
estate records, and other publicly available resources, participants 
must account for differences between such databases/information and the 
Commission's requirements (such as in how buildings and other 
structures are defined as locations).
    26. The Bureau also declines to adopt USTelecom's suggestion that 
the Commission make available to participants all CAM data relevant to 
CAM funded location estimates so that participants can demonstrate that 
their information is more accurate than CAM estimates. USTelecom 
stresses, in particular, the need to access information about the 
``surrogate'' locations that the model randomly placed along roadways 
when precise

[[Page 1765]]

geocoordinates could not be identified. The Connect America Cost Model 
(CAM), however, is used to provide an estimate of the overall number of 
locations in eligible areas and, as explained in the CAM Inputs Order, 
79 FR 29111, May 21, 2014, whether a location is identified by 
geocoordinates or randomly placed is irrelevant to whether the location 
is reasonably determined to be a high-cost location in the relevant 
census block. The Bureau also explained that providing geographic 
coordinates of locations would require the Bureau to publicly release 
proprietary commercial data--the geographic coordinates of those 
locations that came from a commercial data source, and ``[a]s a 
practical matter, after the location demand data are generated, 
information about whether any individual location was based on a 
geocoded address or randomly assigned is not retained.'' Accordingly, 
the Bureau cannot release information that no longer exists and it 
would decline to release it if it did. To meet their evidentiary 
burdens, participants are not measuring their location information 
against CAM estimates but providing detailed information about 
individual actual locations in eligible areas subject to challenge.
    27. Supporting Evidence. In the Locations Adjustment Public Notice, 
the Bureau also proposed that participants submit evidence supporting 
their descriptions of methods and location information. Several 
commenters express concern that this requirement is ``excessive'' or 
``overly prescriptive.'' The Bureau disagrees. Absent supporting 
evidence, the Bureau's evaluation of the completeness of the location 
list would largely be based on the truth and candor of the participant 
and where applicable, stakeholder challenges. Moreover, requiring the 
submission of supporting evidence does not impose significantly greater 
evidentiary burdens since it is the by-product of participants' 
research methods and should be kept by participants for future auditing 
purposes.
    28. The Bureau will, however, allow participants flexibility in 
determining what and how much evidence to submit. Participants may, for 
example, submit print-outs (or links to) web-based photography, 
database pages, and/or public records information for a sample of 
randomly selected land units (i.e., parcels, plots) within the relevant 
eligible areas cross-referenced against reported locations. 
Participants may also choose to submit location information for any 
location that it has affirmatively determined to be a non-qualifying 
location together with a description of the reason why such structure 
should not be counted, e.g., derelict, industrial facility, temporary 
or mobile unit, or incomplete build. To support such a conclusion, 
participants may submit, as requested by WISPA in its comment, 
``qualitative evidence,'' such as roof size or other visual evidence.
    29. In making these decisions, the Bureau has carefully weighed the 
burdens on participants (and stakeholders) against the need to have 
sufficient data and evidence to ensure that the adjusted defined 
deployment obligations will not undercut service to locations that are 
the most expensive to serve. As with any process, these benefits and 
burdens may not fall equally on every participant. WISPA, for example, 
states that small providers may find participation cost-prohibitive, 
time-consuming, and generally not worth the benefits, particularly if 
the participant must purchase expensive software and/or conduct ground 
studies. To limit potential burdens on small providers, the Bureau has 
provided participants with considerable discretion in adopting 
processes to identify locations in eligible areas. The Bureau has only 
required participants describe the steps that they have taken to ensure 
that their eligible location lists are complete and accurate and submit 
a limited amount of readily-available supporting evidence. If such 
requirements are too expensive or burdensome for successful Phase II 
Auction applicants, then they may choose not to participate in this 
process and thereby assume the associated risk of noncompliance if they 
are unable to meet their defined deployment obligation.
    30. Stakeholder Eligibility. The Bureau adopts its proposal to 
define relevant stakeholders eligible to participate as challengers in 
this process as government entities (state, local, and Tribal) as well 
as individuals or non-governmental entities with a legitimate and 
verifiable interest in ensuring service in the relevant areas. In this 
regard, ELAP is distinguishable from other similar processes designed 
to test service in eligible areas because, unlike in those processes, 
entities or individuals are likely to have specific knowledge required 
to support a challenge: Information about omitted or incorrectly 
reported locations. Moreover, individuals or entities might have more 
specific and up-to-date information than possessed by governing 
authorities and accordingly they may be able to represent their 
interest in service to eligible areas. Finally, the Bureau is motivated 
to conduct an adjustment process that is as open and transparent as 
possible to ensure the most complete, accurate, and reliable outcomes. 
Accordingly, the Bureau's definition includes individuals or entities 
residing or doing business in the relevant areas as well as those 
entities with a legitimate and verifiable interest, such as landlords 
or property developers. Commenters generally supported the Bureau's 
proposal.
    31. Several commenters also support excluding individuals or 
entities otherwise meeting the definition of a relevant stakeholder if 
such individual or entity has a controlling interest in a competitive 
provider in the same area and market. The Bureau finds that such a 
restriction is necessary. Competitors have unique incentives that work 
at cross purposes with this process, including an interest in 
facilitating future default of participants by obstructing this 
process. In other challenge processes designed to distinguish between 
unserved and served areas, competitors were uniquely situated in terms 
of access to the relevant information, i.e., they have records 
demonstrating service at a particular location. Here, while competitive 
providers may have some location information, such information is 
likely to be more readily available to individuals and other entities 
in the communities in question. While any individual or entity 
otherwise eligible to participate as a stakeholder may request waiver 
of this restriction, the Bureau generally finds that the public 
interest in protecting the integrity of this process against potential 
anticompetitive behaviors outweighs the benefits of permitting a 
limited number of competitive entities to challenge participant 
location information.
    32. To determine the eligibility of non-government entities or 
individuals to participate as a stakeholder, the Bureau will use one 
more ore automated data source that compile public records information, 
such as LexisNexis Public Records, to verify identity and eligibility. 
The Bureau will collect from all prospective stakeholders through the 
HUBB module basic identifying and contact information, e.g., name, 
residential or business address, phone number, and email addresses. The 
Bureau may also collect other kinds of information as required by the 
automated data source to verify identity. To demonstrate eligibility, 
the prospective stakeholder must also provide the address of the 
relevant locations in the eligible areas and information regarding the 
nature of the interest in that location, e.g., residency,

[[Page 1766]]

ownership, lease management. To the extent that such information is 
available in public records, the commercial data source may verify that 
the interest is held by the individual/entity. If the Bureau cannot 
verify the identity of the stakeholder and his/her/its interest in 
ensuring service in eligible areas using automated data sources, the 
Bureau will not permit the stakeholder to access participant 
information.
    33. As a condition of participating in this process, the 
stakeholder must acknowledge and consent to the disclosure of its 
contact information to the relevant participant and the linking of such 
information to the challenge evidence submitted. The stakeholder must 
also certify that it satisfies the Bureau's definition of relevant 
stakeholder. The Bureau will review such information and make an 
affirmative determination whether to allow further access and 
participation by the stakeholder.
    34. Stakeholder Location Evidence. Once a stakeholder demonstrates 
that it meets the definition of a relevant stakeholder, makes the 
requisite certifications, and enters into a protective order, as 
appropriate, a stakeholder may (1) access confidential participant 
information for areas it wishes to challenge; (2) identify the area(s) 
it wants to challenge; (3) submit evidence supporting the challenge; 
and (4) certify its challenge for the specified area(s). Based on the 
Bureau's consideration of the record and given the policy objectives of 
this process, it finds that to certify a challenge, a stakeholder must 
submit location information for omitted or inaccurately reported 
locations generally in the same format as required of participants, 
e.g., geocodes, addresses, number of units. Such information may 
include omitted prospective locations, but such locations must be 
separately identified as existing and prospective locations.
    35. GeoLinks and WISPA assert that, in addition to location 
information, the Commission should require stakeholders to provide a 
short description of their methods, including an explanation as to why 
their methods produce a more accurate data set than that of the 
participant. These commenters assert that the Commission should reject 
any challenge that merely alleges deficiencies in participants' methods 
or evidence without presenting any additional location information 
since such a challenge would be too onerous to verify or refute when 
applied to the particular facts relevant to the eligible areas. These 
commenters also would require stakeholders to submit supporting 
evidence to the same extent that the Bureau requires participants to 
submit this information. WISPA adds to such assertations that any 
stakeholder relying on publicly-available data must submit such data as 
part of its challenge.
    36. Despite what commenters argue, the Commission decided that 
participants carry the burden of proof and, therefore, heavier 
evidentiary burdens. In the Order, the Bureau has determined that 
participants will also carry the burden of persuasion. The Bureau also 
notes that the imposing certain evidentiary requirements might dissuade 
stakeholders with limited experience and expertise from participating. 
Accordingly, the Bureau is not convinced by the assertions of some 
commenters that it should impose the same evidentiary requirements on 
stakeholders that the Bureau imposes on participants. Instead, the 
Bureau requires stakeholders to submit some but not all the information 
required of participants.
    37. Stakeholders must describe their methods for identifying 
locations, including any limitations thereof, and must submit proof 
that the location data describes a qualifying residential or small 
business location. We expect that there will be a variety of 
stakeholders responding to participants' submissions. Accordingly, the 
description of methodology may range from a simple explanation, such as 
might occur if a homeowner reports that his/her home has been omitted 
from the participant's list of qualifying locations, or a more in-depth 
explanation, such as might occur if a local government entity claims 
that several locations have been omitted from the participant's list. 
Generally, the Bureau has determined that sets of geocoordinates a 
distance of 36 feet or more from another will describe separate 
structures. Accordingly, when a stakeholder's location data falls 
within 36 feet of the geocoordinates reported by the participant 
(generally, an overlap in the first three decimal places of 
geocoordinates), the stakeholder must also explain why the location 
should be considered a separate and unique location from the location 
reported (e.g., the location data describes a separate business or 
residential location or unit within the same property/parcel). These 
locations will be identified by USAC through its automated validation 
process. If a stakeholder reports prospective locations as omitted 
locations, it must explain why such location should be considered when 
determining participants' defined deployment obligations and submit 
some supporting evidence that the location will become a qualifying 
location within the six-year build-out period. Stakeholders may include 
factual arguments demonstrating why their methodology produces location 
information more complete or accurate than that of the participant but 
are not required to do so. A stakeholder must certify that its 
submission is true and accurate and may revise and recertify its filing 
until the filing deadline.
    38. Once a stakeholder submits its evidence in the HUBB, the system 
will conduct an automatic validation process to determine whether the 
stakeholder provided enough evidence to justify proceeding with each 
submitted challenge. The system will inform the stakeholder of any 
problems associated with the prior submission in due course. The 
stakeholder may submit additional or modified data, as required, to 
resolve the problem if it can do so before the deadline. Once the 
challenge window closes, however, the stakeholder will have no further 
opportunity to correct existing, or provide additional, information in 
support of its challenge. Only those challenges to areas that are 
certified by a stakeholder at the close of the window and validated by 
the HUBB will be considered.
    39. The Bureau finds that providing challenged participants with a 
limited 30-day opportunity to submit additional data in response to a 
challenge promotes its goals of a fair and balanced process. It will 
also help ensure that the adjusted defined deployment obligations 
accurately reflect the actual number of locations (plus any prospective 
locations that the participant chooses to include). However, the Bureau 
expects stakeholders to provide irrefutable evidence of any omitted 
qualified locations overlooked by the participant, making responses 
largely unnecessary. The Bureau does not adopt specific evidentiary 
requirements for this reply process, preferring instead to defer to 
participants' judgment regarding the most probative evidence to rebut 
the stakeholders' information. The reply should not be used to 
introduce new evidence not responsive to the challenge or update 
preexisting evidence that is non-responsive to one or more stakeholder 
challenges. The information must be submitted in the same format as 
specified for participants' and stakeholders' data and information. Any 
information submitted must be certified as true and accurate by an 
officer of the participant under penalty of perjury.
    40. In the Phase II Auction Reconsideration Order, the Commission 
determined that participants should be required to submit addresses and 
geocoordinates for eligible locations but otherwise requested that the 
Bureau develop formatting and evidentiary

[[Page 1767]]

requirements for location data after seeking notice and comment. In the 
Locations Adjustment Public Notice, the Bureau proposed adopting data 
format requirements for this process similar to those used for the 
HUBB, stressing several advantages to such an approach, including 
streamlined validations and future auditing of data, potential 
transferability of data to the HUBB, and preexisting and refined 
guidance for carriers reporting in the HUBB that can be adapted to the 
locations adjustment process. The Bureau and USAC developed these HUBB 
formatting standards to help ensure that a location may be easily 
distinguished from nearby properties and readily determined to be 
located within eligible areas. By adopting these standards, the Bureau 
gives both participants and stakeholders a meaningful opportunity to 
review location data. Commenters generally express support for the 
adoption of such standards.
    41. Participants and stakeholders must submit location information 
in a tabular format (e.g., a .csv file) into a module within the HUBB. 
Such information will include (1) basic information, e.g., participant/
stakeholder name and contact information; (2) information regarding the 
relevant geographic area, e.g., the relevant state and SAC; (3) 
location specific information, e.g., addresses, geocoordinates, and 
number of units; (4) method information, e.g., GPS methods and/or 
source used and the ``as-of'' date of such method or source; and (5) 
certification information, including the name of the officer certifying 
that the information is true and correct and his or her contact 
information. The module will also accept the participants' methods 
description (e.g., as a .pdf file) and the supporting evidence (e.g., 
.pdf, jpeg).
    42. In its comment (and in ex parte filings with the Bureau 
relating to HUBB functionality), USTelecom requests that geocoordinate 
reporting requirements be limited to the five decimal places rather 
than the currently required six places. USTelecom asserts that in the 
predominately rural areas served by participants, reporting at the 
fifth decimal place adequately ensures that the location will be 
readily identifiable by stakeholders and for future auditing purposes. 
USTelecom stresses that, in comparison, requiring a higher degree of 
accuracy places a significant burden on participants, noting that in 
CAF areas, the ``rooftop level geocoding accuracy'' is only 
approximately 55%. The Bureau generally agrees. Reporting accuracy at 
the fifth decimal place generally will enable stakeholders (and any 
future auditor) to identify attached properties and to distinguish such 
properties from apartments and other multiple dwelling units. The 
Bureau does not, however, wish to foreclose a participant or 
stakeholder from entering more precise coordinates. Accordingly, the 
Bureau will configure the HUBB to allow participants to enter a 
trailing ``0'' in lieu of a sixth decimal place. Such entry will not be 
interpreted to suggest that the participant is certifying the accuracy 
of its information to the sixth decimal place.
    43. In the Phase II Auction Reconsideration Order, the Commission 
provided that all evidence submitted by participants pursuant to this 
process would be subject to future audit and directed the Bureau to 
adopt parameters for such audits. These verifications will mirror HUBB 
verification processes. Because, however, participants' submissions 
produce a ``snapshot'' of conditions as they exist at a specific point 
in time, verifying the accuracy, reliability, and completeness of 
participants' location information may be increasingly difficult as 
time passes. For this reason, WISPA suggests that the Bureau limit 
verification to CAF Phase II support recipients' six-year deployment 
period, while USTelecom proposes a more abbreviated time frame, i.e., 
18-months after the participants' certification.
    44. The Bureau concludes that these verifications should be limited 
to the support term (plus any time reserved by USAC for final 
verification of HUBB deployment information). Such a time frame 
provides USAC and the participants with a realistic time frame to 
sample and test location information. The Bureau reminds participants 
that under section 54.320(b) of the Commission's rules, all recipients 
of high-cost support must maintain all records required to demonstrate 
to auditors that the support received was consistent with the universal 
service high-cost program rules and must maintain such records for a 
minimum of 10 years from the receipt of funding, and the Bureau 
interprets such requirement as applicable to this process. Participants 
may need to produce supporting evidence or documentation that is not 
already in the record in this proceeding and thus should retain all 
evidence and documentation gathered to identify all locations, as well 
as any documentation supporting its methodology.
    45. In response to the Bureau's request for comments, several 
commenters suggested specific circumstances when verification would be 
appropriate. For example, Hughes proposes that verifications should be 
triggered when a participant frequently misreports location evidence 
toward its defined deployment obligation or when there are significant 
differences between the participant's served location information and 
its ELAP location information. WISPA suggests that verifications are 
appropriate when the participant defaults or misreports served 
locations over 30% in any year or 15% in two years. The Bureau finds 
such suggestions compelling and will consider them in its verification 
decisions. The Bureau declines, however, to adopt any limiting criteria 
that would trigger verification and that might encourage participants 
to engage in strategic HUBB reporting or that would impliedly limit its 
discretion to conduct random audits.
    46. If the Bureau discovers that actual locations were not reported 
by the participant, the Bureau will add the locations to the 
participant's defined deployment obligation. If the participant cannot 
demonstrate compliance with the readjusted defined deployment 
obligation, the Bureau will find the participant in performance default 
and subject to the Commission's default measures. In situations where 
it appears that the participant may have intentionally or negligently 
misrepresented the number of actual locations in ELAP, the Bureau may 
refer the case to the FCC's Enforcement Bureau for further 
investigation and possible forfeiture penalty. The Bureau stresses that 
it is not limiting these actions to the deployment or support term and 
reserves the right, coterminous with Commission authority to recover 
improperly disbursed support, to act on information about inaccurate 
participant filings at any future point.
    47. Participant's Information. In the Locations Adjustment Public 
Notice, the Bureau noted similarities between served location data, 
which the Commission treats as non-confidential and makes publicly 
available, and ELAP location information. The Bureau also noted, 
however, important differences, namely, that unverified lists of actual 
locations, particularly when coupled with related evidence, could 
reveal competitively sensitive information regarding participants' 
future deployment plans or link addresses and other information to 
specific individuals. For this reason, the Bureau will publicly 
disclose only certain ELAP location information, i.e., information that 
is generally publicly available from multiple data sources. All other 
information will be treated as presumptively confidential.

[[Page 1768]]

    48. Competitors could use the confidential information filed by 
participants to the competitive disadvantage of the participant. 
Therefore, as some commenters suggest, the Bureau will permit 
participants to file such information pursuant to a Protective Order. 
In particular, as specified in more detail in the Protective Order, the 
Bureau restricts availability of this information as follows: (1) In 
the case of commercial entities having a competitive or business 
relationship with the participant whose confidential information it 
seeks and which have obtained a waiver of the definition of 
stakeholder, to In-House Counsel not involved in competitive decision-
making, and to their Outside Counsel of Record, their Outside 
Consultants and experts whom they retain to assist them in this and 
related proceedings, and employees of such Outside Counsel and Outside 
Consultants; (2) to employees and representatives of commercial 
entities having no competitive or business relationship with the 
participant whose confidential information it seeks; and (3) to 
individuals with no competitive or business relationship with the 
company. The Bureau concludes that adopting such procedures in a 
Protective Order will give stakeholders appropriate access to 
participant information while protecting competitively sensitive 
information from improper disclosure, and that disclosure pursuant to 
the Protective Order thereby serves the public interest.
    49. The Bureau will also restrict access to this information. 
Stakeholders will only be permitted to access confidential participant 
location data for the census blocks in which the stakeholder has 
demonstrated a verifiable interest in ensuring service and the 
bordering census blocks. Stakeholders may access information about the 
methods used to gather location data for all locations identified in 
these census blocks by participants, the entire description of the 
methodology provided by the participant, and the supporting evidence 
associated with such methodology unless such evidence clearly and 
exclusively relates to locations and areas outside of the relevant 
census blocks, e.g., photographic evidence of derelict structures in a 
different area of the state or in a different state.
    50. Stakeholder Information. Information submitted by the 
stakeholder to establish eligibility and to challenge participants' 
information may also be abused by participants and outside parties and 
raises significant privacy concerns. The Bureau sought comment on these 
concerns as well as the appropriate methods for addressing such 
concerns but received no comments on these issues. The Bureau 
determines that it is necessary treat all stakeholder information as 
presumptively confidential. All information gathered to determine the 
stakeholder's eligibility to participate will not be disclosed publicly 
or to any other participant in this process. Stakeholder contact 
information and challenge information will be made available to the 
relevant participant and other stakeholders filing challenges based in 
the same census block areas but stakeholders may file such information 
pursuant to a Protective Order that limits the use of such information.
    51. Specifically, as a condition of obtaining access to stakeholder 
information, the participant or stakeholder agrees to use the 
information solely for the preparation and conduct of this proceeding 
before the Commission and any subsequent judicial proceeding arising 
directly from this proceeding and, except as provided herein, shall not 
use such documents or information for any other purpose, including 
without limitation business, governmental, or commercial purposes, or 
in other administrative, regulatory or judicial proceedings. The 
information may only be accessed by employees and representatives of 
the participant/stakeholder that have no competitive, business, or 
legal relationship with the stakeholder.
    52. Participants/other stakeholders may discuss stakeholder 
information with the Commission and its staff and with the 
stakeholder's employees, representatives, and counsel, including 
paralegals assisting in this proceeding. Participants/other 
stakeholders may also discuss location data with third-party 
contractors involved solely in one or more aspects of organizing, 
filing, coding, converting, storing, or retrieving documents or data or 
designing programs for handling data connected with this proceeding, or 
performing other clerical or ministerial functions with regard to 
documents connected with this proceeding. This location data must not 
be linked in any manner to the contact information of the stakeholder.
    53. The Bureau will work with USAC to create a module in the HUBB 
to accept and retain ELAP submissions and to control access to such 
information. The Bureau will also coordinate with USAC in the 
development of the ELAP Map. To the extent any information submitted to 
the module by or about individuals is a ``record,'' and to the extent 
that the module may function as a ``system of records,'' as those terms 
are defined in the Privacy Act of 1974, USAC will collect, maintain, 
and use the information in accordance with that law. In addition, the 
Bureau directs USAC to ensure that the ELAP module and map complies 
with all other applicable laws and Federal government guidance on 
privacy and security and other applicable technology requirements such 
as those enacted by the Federal Information Security Modernization Act 
(FISMA). In connection with the creation of these online record 
systems, the Bureau will coordinate with the Office of Management and 
Budget (OMB) to ensure compliance with all relevant federal rules and 
requirements, including the Paperwork Reduction Act of 1995.

III. Procedural Matters

A. Paperwork Reduction Act Analysis

    54. 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 Bureau notes that pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4), it previously sought specific comment on how the Commission 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.

B. Congressional Review Act

    55. The Bureau has determined, and the Administrator of the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
concurs that this rule is ``non-major'' under the Congressional Review 
Act. The Bureau will send a copy of this Order to Congress and the 
Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
    56. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated in the Locations Adjustment Public Notice. The Bureau 
sought written public comment on the proposals, including comment on 
the IRFA. The Commission

[[Page 1769]]

received no comments in response to the IRFA.
    57. In the Order, the Bureau is implementing a process, established 
by the Commission in its Phase II Auction Reconsideration Order for 
successful applicants for Phase II auction support, to modify defined 
deployment obligations where the number of locations within the 
applicant's relevant bid areas within the state falls short of the 
number of locations that the applicant must serve within eligible areas 
in the state. Interested parties received notice and opportunity to 
comment on the Bureau's proposals for this process.
    58. Pursuant to this process, a participant must submit into a 
module in the HUBB, location information describing the number of 
actual qualifying locations (and any additional prospective locations), 
a description of the methods it employed to identify all actual 
locations, and some additional supporting evidence to demonstrate that 
all actual locations were identified and reported. The Bureau will 
identify those participants that have met the prima facie standard for 
submitting a claim and will order the release of a limited amount of 
location information in a publicly available map. Outside parties will 
then use such information to determine whether they can and should 
submit challenges to specific claims for specific areas. As a condition 
of accessing relevant participant information and submitting a 
challenge, parties must demonstrate that they meet certain criteria and 
must sign a protective order. To make a successful challenge, 
challengers must submit information similar to the information 
submitted by participants, including location information, a method 
description, and some supporting evidence, although the requirements 
are less rigorous. Participants must also sign a protective order to 
access stakeholder information. They may then respond to the 
stakeholder's challenge. Based on the record, the Bureau will 
adjudicate participants' claims for relief based on a preponderance of 
the evidence standard, and where such standard has been met, reduce 
participants' obligations and support on a pro rata basis. 
Participants' information is subject to future verification.
    59. 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 rules adopted herein. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act.'' A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    60. The Bureaus actions, over time, may affect small entities that 
are not easily categorized at present. The Bureau therefore describes 
in this document, at the outset, three comprehensive small entity size 
standards that could be directly affected herein. First, while there 
are industry specific size standards for small businesses that are used 
in the regulatory flexibility analysis, according to data from the 
SBA's Office of Advocacy, in general a small business is an independent 
business having fewer than 500 employees. These types of small 
businesses represent 99.9% of all businesses in the United States which 
translates to 28.8 million businesses.
    61. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
Nationwide, as of August 2016, there were approximately 356,494 small 
organizations based on registration and tax data filed by nonprofits 
with the Internal Revenue Service (IRS).
    62. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, towns, 
townships, villages, school districts, or special districts, with a 
population of less than fifty thousand.'' U.S. Census Bureau data from 
the 2012 Census of Governments indicate that there were 90,056 local 
governmental jurisdictions consisting of general purpose governments 
and special purpose governments in the United States. Of this number 
there were 37, 132 General purpose governments (county, municipal and 
town or township) with populations of less than 50,000 and 12,184 
Special purpose governments (independent school districts and special 
districts) with populations of less than 50,000. The 2012 U.S. Census 
Bureau data for most types of governments in the local government 
category show that the majority of these governments have populations 
of less than 50,000. Based on this data the Bureau estimates that at 
least 49,316 local government jurisdictions fall in the category of 
``small governmental jurisdictions.''
    63. Commenters, including small entities, wishing to participate in 
this process would be required to comply with the listed reporting and 
evidentiary standards. Such standards include location information, 
methodology descriptions, and supporting evidence in specific formats. 
Such information must be submitted by specific deadlines. In addition, 
parties may file challenges if they submit information demonstrating 
that they qualify as a relevant stakeholder. Relevant stakeholder's 
challenges must include information like that submitted by the 
participant. Participants may reply to stakeholder challenges.
    64. The small entities that may be affected are Wireline and 
Wireless Providers, Broadband internet Access Service Providers, 
Satellite Telecommunications, Electric Power Generators, Transmitters, 
and Distributors, and All Other Telecommunications.
    65. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include the following four alternatives (among others): ``(1) 
the establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance or reporting requirements under the rule for small entities; 
(3) the use of performance, rather than design, standards; and (4) and 
exemption from coverage of the rule, or any part thereof, for small 
entities.''
    66. This process considers the resources available to small 
entities by permitting participants flexibility in choosing how to 
identify locations within eligible areas as well as discretionary 
control over the amount and nature of the supporting evidence that they 
will submit. Small entities may also present evidence regarding the 
available geocoding and other resources necessary to meet the 
Commission's prima facie evidentiary standards. Further, by 
participating in this process at the beginning of the term, small 
entities will be able to more effectively plan their network 
deployments.

IV. Ordering Clauses

    67. Accordingly, it is ordered, pursuant to the authority contained 
in sections 254 of the Communications Act of 1934, as amended, 47 
U.S.C. 254, and the authority delegated in Sec. Sec.  0.91 and 0.291 of 
the Commission's rules, 47 CFR 0.91, 0.291, and Sec. Sec.  1.1 and 
1.427 of the Commission's rules, 47 CFR 1.1, 1.427, that the Order is 
adopted.
    68. It is further ordered that, pursuant to Sec.  1.103 of the 
Commission's rules, 47

[[Page 1770]]

CFR 1.103, the Order shall become effective thirty (30) days after 
publication of the text or summary thereof in the Federal Register, 
except for those rules and requirements involving Paperwork Reduction 
Act burdens, which shall become effective immediately upon announcement 
in the Federal Register of OMB approval.

Federal Communications Commission.
Kirk Burgee,
Chief of Staff, Wireline Competition Bureau.
[FR Doc. 2019-28501 Filed 1-10-20; 8:45 am]
 BILLING CODE 6712-01-P