Last month, I started posting comments from the public on the MN Public Utility Commission’s situation with LTD Broadband and a request to look at revoking their ETC designation. Below I have excerpts from comments from:
- MN Department of Commerce
- Minnesota Telecom Alliance and Minnesota Rural Electric Association
- LTD Broadband
In order of appearance in my in-box.
Comments from Department of Commerce…
The federal government is making a generational investment in broadband through the Rural Digital Opportunity Fund (“RDOF”) program and the Infrastructure Investment and Jobs Act. It is essential that these public subsidies only flow to providers capable of deploying broadband and delivering on their applicable Eligible Telecommunications Carrier (“ETC”) commitments. LTD Broadband, however, does not appear up to these tasks. Allowing LTD to remain in regulatory purgatory interferes with the efforts of local governments, nonprofits, and other providers to make investments with reasonable certainty and secure federal subsidies. This situation is untenable. To resolve these issues, the Department of Commerce continues to recommend that the Commission lift the stay, suspend LTD’s expanded ETC designation until final disposition of this matter, and direct LTD to notify its customers that they may contact the Consumer Affairs Office with any questions or concerns.
They go on to explain their reasoning. Here’s their outline, which is filled in on the original document…
- LTD’S ARGUMENTS AGAINST LIFTING THE STAY LACK MERIT
- The Commission Should Exercise Its Judgment and Expertise to Lift the Stay.
- LTD Attempts to Reduce the Commission to a Rubberstamp
- THE COMMISSION SHOULD SUSPEND LTD’S EXPANDED DESIGNATION.
And the conclusion…
For these reasons, and those discussed in its initial comments, the Department continues to recommend that the Commission lift the stay of this proceeding, suspend LTD’s expanded ETC designation for the pendency of the proceeding, and require LTD to include bill messages advising customers that they may contact CAO with complaints.
Comments from Minnesota Telecom Alliance and Minnesota Rural Electric Association…
The Minnesota Telecom Alliance (“MTA”) and Minnesota Rural Electric Association (“MREA”) (“Petitioners”) hereby respectfully submit these Reply Comments as provided in the Commission’s July 21, 2023, Notice of Comment Period in this matter (the “Current Proceeding”). Petitioners: (1) support the Comments of the Department of Commerce (“Department”),1 the Office of Attorney General (“OAG”),2 the Institute for Local Self Reliance (“ILSR”),3 LeSueur County,4 Minnesota Farmers Union (“MFU”), 5 Martha Milburn and Brad Gustafson; and (2) dispute the Comments of LTD Broadband, LLC (“LTD”).6
They’ve added a handy summary of their points:
- The Commission has the legal authority and responsibility to suspend LTD’s Expanded ETC Designation (“ETC Designation”) based on facts presented by Petitioners, the Department and others showing LTD is unable to perform its ETC obligation to provide the supported broadband services throughout its Minnesota ETC area. 7
- The status quo (under which LTD retains its ETC Designation) also poses the risk of immediate and irreparable harm to the public interest by denying access to other public broadband funding for approximately 165,000 Minnesota residents in LTD’s ETC area.
- These facts and substantial risk to the public interest support suspending LTD’s ETC Designation, as Petitioners, the Department, the OAG, ILSR, and all commenters recommend.
And here’s the outline of their argument, which is filled in for the full comments:
- LTD’S ARGUMENT THAT THE COMMISSION SHOULD DEFER TO THE FCC IGNORES THE COMMISSION’S INDEPENDENT AUTHORITY AND RESPONSIBILITY TO ENSURE LTD MEETS ITS ETC OBLIGATIONS.
- FACTS PROVIDED BY PETITIONERS AND THE DEPARTMENT SHOW THAT LTD CANNOT MEET THE BASIC ETC REQUIREMENT TO PROVIDE THE SUPPORTED BROADBAND SERVICES TO THE 102,005 LOCATIONS IN ITS ETC AREA.
- C. LTD HAS GROSSLY UNDERSTATED THE IMMEDIACY AND SEVERITY OF THE RISK THAT ITS APPLICATION FOR REVIEW POSES TO THE PUBLIC INTEREST IN MINNESOTA
- 1. Contrary to LTD’s claim that its application for review is merely preliminary, the application asserts a right to RDOF funding with minimal delay.
- 2. The Commission cannot effectively protect the public interest in BEAD and other broadband funding sources without suspending LTD’s ETC designation.
- D. LTD’S COMMENTS IGNORE THE RISK OF IRREPARABLE HARM TO THE PUBLIC INTEREST FROM ALLOWING LTD’S ETC DESIGNATION TO REMAIN IN EFFECT DURING THE REVOCATION PROCEEDING
And the conclusion…
For the reasons discussed above and in Petitioners’ Motion to Suspend, it is essential that the Commission suspend LTD’s ETC Designation with or without lifting the Stay Order to properly reflect the overwhelming evidence that LTD is unable to perform its ETC obligations and to fully protect the public interest from irreparable harm.
Comments from LTD Broadband, LLC…
LTD Broadband, LLC (“LTD”), by its counsel, hereby replies to the initial round of comments submitted in response to the “Notice of Comment Period” issued July 21, 2023 by the Minnesota Public Utilities Commission (the “Commission”). While a number of parties have voiced support for removing the current stay and considering the Motion to Suspend that the Minnesota Telecom Alliance (“MTA”) and the Minnesota Rural Electric Association (“MREA”) filed in March, none has carried the burden of demonstrating why this relief should be granted and additional, likely time-consuming proceedings conducted. Accordingly, the Commission should decline to disturb the current stay and no additional proceedings should be initiated at this time.
I am abridging their comments but I think this gets to a major point…
The contention of these parties that LTD’s FCC application could suddenly spring to life and result in LTD obtaining immediate authorization for Rural Digital Opportunity Fund (“RDOF”) support, thereby barring others from seeking alternative funding for broadband deployment, has no basis in fact.4 Even if LTD were to obtain a favorable FCC decision concerning its pending Application for Review, the cascade of events that MTA, MREA and other commenters postulate, without support, could not occur quickly. In the event the FCC staff’s dismissal of LTD’s long-form application is overturned, the Commission would have ample opportunity to initiate its own proceedings, if it determined they were warranted, and to make these steps known to the FCC promptly. But that is not the only possibility – the FCC could authorize LTD for partial support and decline to authorize support in certain areas. LTD could decline support in areas that it now serves or are served by others that have expanded their networks. Full denial or full reversal of the FCC’s staff decision are not the only two outcomes, and the impact on BEAD and other funding programs cannot be reasonably predicted so long as the Application for Review remains pending. Thus, in the absence of further FCC action, further Commission proceedings would serve no purpose at all and would only squander the time and resources of all compelled to participate in them, as LTD has fully articulated in its Comments.5 The Commission therefore should maintain the status quo unless and until the FCC takes further steps to consider LTD’s RDOF application, something that may or may not ever occur.
Finally, it would be entirely prejudicial for the Commission to entertain the Motion to Suspend, which seeks to sideline LTD’s expanded ETC designation “pending (1) conclusion of this proceeding; or (2) a Commission Order removing the suspension based on a showing by LTD that it meets the requirements for expanded ETC designation or that suspension is contrary to the public interest.”6 The Commission should not, based on allegations to which LTD has not responded and for which no standards are established, suspend a designation that the Commission granted based on a full and complete record. The Department of Commerce argues that “the public interest would be greatly prejudiced by such an expedited proceeding” in reference to FCC reversal of the staff denial of the long-form application.7 But it totally ignores the extreme prejudice LTD would suffer if there were no proceedings at all on these “complex issues,”8 and the Commission simply decided to suspend LTD’s expanded ETC designation without articulating standards for suspension, without assigning the burden of proof, and without affording LTD an opportunity to participate – which is what MTA and MREA clearly imply is the objective of the Motion to Suspend in asserting that “completion of a contested case is unlikely before the first round of BEAD funding is awarded, even if a contested case is conducted expeditiously.”