LTD Broadband asks MN PUC to hold off on decisions on ETC designation based on other states’ actions

This is an ongoing saga that many of us are watching closely and some might want a little recap…

The Minnesota PUC decided to continue to move forward looking at revoking LTD Broadband’s ETC designation. (Background: LTD was awarded an opportunity to apply for$311 million in federal RDOF funding. They needed the ETC designation from the MN PUC to qualify; industry folks asked the MN PUC to rethink their designation because there were concerns about LTD being able to fulfill the contract. Last month, their application for RDOF was rejected.) I have been tracking new documents posted to the PUC site. The latest is a letter from Taft Law supporting LTD’s request to wait until after the conclusion of LTD’s appeal of the FCC’s denial of its RDOF long-form application to address their ETC status. They do this by recapping what has happened in PUC offices in other states…

I write to provide a brief update on activity in other states that you should know about as you continue to consider how to proceed in this matter. As you know, LTD’s position is that all litigation activity before you should be stayed until the conclusion of LTD’s appeal of the FCC’s denial of its RDOF long-form application. Two recent orders support LTD’s request.

As was referred to in passing at one or both of the previous conferences in this matter, LTD has been engaged in proceedings before other state public utility commissions concerning its eligibility as an eligible telecommunications carrier (“ETC”) in those states for purposes of receiving RDOF funding. Indeed, the main basis for the MTA’s May 22, 2022 Petition was activity before the South Dakota Public Utilities Commission (“SD PUC”). See Petition at 2, 4, 6, 15-21.

Recent developments in two of those state commission proceedings support LTD’s request for a stay in this matter. First, on September 26, 2022, the Clerk of the Nebraska Supreme Court and Court of Appeals stayed an appellate proceeding in which LTD was challenging the denial, by the Nebraska Public Service Commission, of LTD’s ETC status in that state (the “Nebraska Stay Order”). A copy of the Nebraska Stay Order is attached. It provides that the Nebraska appellate proceeding is stayed pending resolution of LTD’s appeal of the FCC staff’s decision, and it requires LTD’s counsel to provide an update if the FCC appeal is not complete by January 21, 2023. The spirit of the Nebraska Stay Order is consistent with LTD’s request in this proceeding—it recognizes that having dual proceedings go forward at the same time would be unnecessarily duplicative and expensive.

Then, on October 12, 2022, the SD PUC issued an order closing LTD’s ETC docket there (“SD Order”). A copy is attached. In March 2022, the SD PUC denied LTD’s request for ETC designation for purposes of RDOF funding. LTD filed a Petition for Reconsideration or Rehearing. As described in the SD Order, that request was still pending as of August 10, 2022 when the FCC staff denied LTD’s long-form application. In light of the FCC staff decision, LTD requested that the South Dakota docket be suspended, and the South Dakota Telecommunications Association (“SDTA”) requested that the docket be closed. Yesterday, in the SD Order, the SD PUC granted the SDTA’s motion, closing the docket. But LTD still has an opportunity to file a motion to re-open the proceeding as new developments occur, for example if LTD wins its appeal of the FCC staff’s decision. See, e.g., In re Brookings Muni. Util. d/b/a Swiftel Comms. for Designation as an Eligible Telecommunications Carrier, Order Reopening Docket, Docket No. TC04-213, 2007 WL 8674044 (So. Dak. Pub. Utils. Comm’n, Sept. 18, 2007) (reopening docket to adjust compliance filing dates). Notably, one of the SD PUC Commissioners specifically stated at the Commission meeting that such a motion could be filed, indicating that the effect of the SD Order was to simply stop the proceedings until and unless LTD’s appeal of the FCC’s decision is successful. So the SD Order is consistent with LTD’s request to you.

This entry was posted in MN, Policy, Vendors and tagged , by Ann Treacy. Bookmark the permalink.

About Ann Treacy

Librarian who follows rural broadband in MN and good uses of new technology (blandinonbroadband.org), hosts a radio show on MN music (mostlyminnesota.com), supports people experiencing homelessness in Minnesota (elimstrongtowershelters.org) and helps with social justice issues through Women’s March MN.

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