The MN PUC (Public Utilities Commission) is holding a meeting on September 21 “In the Matter of a Petition to Initiate a Proceeding to Revoke the Expanded Eligible Telecommunications Carrier (“ETC”) Designation of LTD Broadband, LLC (“LTD”) and Deny LTD’s Funding Certification for 2023.” (The public is welcome; the meeting is hybrid.) They will take on two issues:
- Should the Commission lift the January 18, 2023, stay of this proceeding issued by the ALJ?
- Should the Commission grant the MREA and MTA’s (Petitioner’s) motion to suspend LTD’s RDOF ETC designation previously granted by the Commission?
They have just filed the briefing papers (21 pages) for that meeting. The papers outline and summarize all of the remarks and comments that have been made about the issues up until now. Rather than copy and page everything, I will simply share the issues and the staff notes on each.
Should the Commission lift the January 18, 2023, stay of this proceeding issued by the ALJ?
Staff notes that an RDOF allocation will be considered to have an enforceable commitment for qualifying broadband only after the Federal Communications Commission has announced in a Public Notice that RDOF support for that location is ready-to-authorize or is authorized. 25 As part of the FCC’s August 10, 2022, Notice discussed in the Background section above, the FCC denied LTD’s long-form application placing LTD in default for all their winning bids. LTD is not either ready-to-authorize nor is authorized to receive RDOF funding consistent with the NTIA Notice. As such, no enforceable commitment currently exists in those 102,055 locations LTD originally won in the RDOF auction in early 2021, and those locations are eligible for other grant programs, including the NTIA’s BEAD program funding mentioned by ILSR in their August 11, 2023, comments.
Should the Commission grant the MREA and MTA’s (Petitioner’s) motion to suspend LTD’s RDOF ETC designation previously granted by the Commission?
Public comments are summarized in Attachment A to this document. All four commentors opined that LTD should not maintain its RDOF ETC designation.
And the Staff Analysis
If the Commission determines that this matter should be decided with a conclusion, and the expenditure of resources devoted to reaching this conclusion is deemed prudent, the Commission may consider lifting the ALJ’s stay and move this matter forward. There are two procedures available to the Commission that may be applied as a combination.
First, there is lifting the ALJ’s stay of this matter and granting the Petitioner’s motion to suspend. Staff has some reservations with suspending LTD’s ETC designation. The motion would appear to shift the burden of proof from the Petitioners to show that LTD’s ETC designation should be revoked, to LTD having to redemonstrate that it is fit for ETC designation in the Minnesota RDOF census blocks. This concern is balanced against the Commission preserving its role to determine the fitness of the carrier for ETC designation regardless of whether the FCC ever acts on LTD’s appeal.
As part of that authority, and to ensure the preservation of that authority throughout this process, the Commission may consider suspending LTD’s RDOF ETC designation, which was granted in the Commission’s June 3, 2021, Order pending the outcome of this proceeding.38 This will allow the Commission to bring about a smoother final resolution regardless of whether the FCC acts on LTD’s appeal.
However, if the FCC were to grant LTD’s appeal during the pendency of this proceeding, The ALJ reasoned the following:
In addition, if the FCC does change course, it will be based on an analysis that will be similar to what the Commission will face — is LTD capable of fulfilling its technical, managerial, and financial obligations to fulfill obligations under the RDOF program? While the Commission’s interests are somewhat different from the FCC’s, the determination of the FCC, an independent federal agency that has a fiduciary interest in seeing the RDOF funds are properly dispersed, is relevant to issues to be addressed in this proceeding. In addition, there will be a window, at least six weeks, for the parties in this proceeding to reconvene to decide next steps if the FCC does reverse course.
Second, there is lifting the ALJ’s stay of this matter, and referring the matter back to the ALJ to formally develop the record as the Commission requested prior to the FCC’s denial of LTD’s Long-Form application. Staff continues to believe a contested case will develop a complete record regarding whether LTD’s ETC designation should be revoked. A contested case proceeding will allow the parties to engage in discovery, present formal evidence, cross[1]examine witnesses, and develop a robust record fully exploring all the relevant issues consistent with the parties’ due process rights and applicable rules.
In their August 11, 2023, comments, the Department stated the following:
While the FCC’s denial of LTD’s long-form application has paused RDOF funds from flowing to LTD and lessened the initial urgency, the need for the proceeding continues and the Commission’s independent authority to designate and monitor ETCs remains. Given the passage of time, in order to effectuate its authority, the Commission should remove the stay and direct OAH to set a procedural schedule.40 Staff believes that the Department’s position has merit. This process is part of the Commission’s overall authority to designate and monitor eligible telecommunications carriers (ETCs), and the time may have come for the Commission to make a final determination of this matter.
Also, here are the decision options…
Should the Commission lift the January 18, 2023, stay of this proceeding issued by the ALJ?
- Continue the stay imposed pursuant to the Administrative Law Judge’s January 18, 2023, Third Prehearing Order. (LTD)
OR
- Lift the stay imposed pursuant to the Administrative Law Judge’s January 18, 2023, Third Prehearing Order (Petitioners, Department, and OAG).
AND
- Refer the matter back to the Office of Administrative Hearings (OAH) with the request that the matter be restarted following the procedure outlined in the Commission’s August 16, 2022, Notice and Order for Hearing (Department).
OR
- Consider the Petitioner’s motion to suspend LTD’s RDOF ETC designation previously granted by the Commission.
[If the Commission selects decision option 2a or 2b, the Commission should consider decision options #3, #4, or #5 based on relevance.]
Should the Commission grant the MREA and MTA’s (Petitioner’s) motion to suspend LTD’s RDOF ETC designation previously granted by the Commission?
- Deny the Petitioner’s motion to suspend LTD’s RDOF ETC designation previously granted by the Commission (LTD).
OR
- Grant the Petitioner’s motion to suspend LTD’s RDOF ETC designation previously granted by the Commission (Petitioners, Department, and OAG).
OR
-
Grant the Petitioner’s motion to suspend LTD’s RDOF ETC designation previously granted by the Commission and Refer the matter back to the Office of Administrative Hearings (OAH) with the request that the matter be restarted following the procedure outlined in the Commission’s August 16, 2022, Notice and Order for Hearing (Department).