[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]
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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.
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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