Tag Archives: LTD Broadband

RDOF areas that have not received RDOF funding authorization can apply for BEAD

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Telecompetitor has an update on the situation with $9.2 billion of RDOF money doled out by the NTIA based on results of a reverse auction. The largest winning bidder was LTD Broadband, which means they won the exclusive opportunity to apply for funding in certain areas – many of them in Minnesota. It’s a situation we’ve been following in Minnesota, especially since it has led the Minnesota PUC (Public Utilities Commission) to delve into the working of LTD Broadband.

The good news they report is that RDOF areas that have not received RDOF funding authorization can apply for BEAD. One thorn in the side of Minnesota communities in LTD-RDOF areas is that being in the limbo of possibly receiving funds left they out of a state Border to Border funding round.

Here are more details from Telecompetitor…

Winning bidders were required to submit long-form applications and obtain eligible telecommunications carrier (ETC) status if they didn’t already have it. A company is put on an RDOF ready-to-authorize list when the FCC has reviewed and approved its long-form application. The company then has about two weeks to obtain a letter of credit and a bankruptcy opinion letter, which the FCC reviews and approves prior to putting the company on a list of authorized bidders.

Three-quarters of the funding tentatively won in the auction is slated to go to just 10 companies. Among the top winning bidders, most of the companies planning to deploy fiber broadband have had all or most of their funding released. Several companies planning to use alternate technologies – including gigabit fixed wireless and low earth orbit satellites – have not yet appeared on a ready-to-authorize list. Gigabit fixed wireless has received criticism as a relatively unproven technology and LEO satellites have been criticized because they also are relatively unproven and have a limited lifespan.

LTD Broadband, which was the largest winning bidder and which plans to use fiber broadband for its deployments, also has not yet appeared on an RDOF ready-to-authorize list. The company has received considerable criticism from people who question whether it has the resources to complete the bids for which it won funding.

A lot has changed on the rural broadband front since the RDOF auction was completed in late 2020. Since then, legislators have made an unprecedented amount of funding available for rural broadband. The $9.2 billion tentatively awarded in the auction is only a fraction of the $42.5 billion that will be awarded through the Broadband Equity Access and Deployment (BEAD) program created in the infrastructure act and that will be administered by NTIA.

Rules for that program were recently released and they reveal lessons learned from the RDOF auction. Rather than using a reverse auction to award funding, the BEAD program will use a merit system that prioritizes fiber broadband.

Unserved locations that are supposed to receive broadband through the RDOF program are not eligible for BEAD or other funding programs, but just this week, we got some additional clarification about that. Alan Davidson, head of NTIA, told attendees at an industry conference this week that if an area has yet to receive RDOF funding authorization, that area should be eligible for BEAD grants, and it would then be up to the FCC to “deconflict” any potential overlap.

 

Update on PUC looking into LTD Broadband: LTD doesn’t want to file long form

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This is an ongoing saga. If you are new to the topic, here’s a very quick recap…

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. On April 23, they held a preconference to decide whether or not to continue to look into revoking their ETC status.

Yesterday, the PUC posted a few documents I could view and I few that I couldn’t. Mane submitted document would include protected information; that may be the reason. (I have asked about it and hope to hear more about that later.)

I was able to view a letter from LTD Broadband lawyers saying they didn’t want to file their RDOF long form, because thye had already shared that information with engaged parties and a letter from MN Telecom Alliance saying they have received the Long Form from LTD.

From LTD Broadband lawyers…

Towards the end of the prehearing conference last Monday, Your Honor indicated that LTD Broadband, LLC (“LTD”) had not “filed” its Rural Digital Opportunity Fund long form application pursuant to your September 1, 2022 Second Prehearing Order. In the context of the proceedings at that time, LTD viewed the order as a memorialization of LTD’s voluntary agreement to “serve” the long form available on the state agencies and the petitioners and did not appreciate that there may have been a separate requirement to “file” the long form in the docket. LTD provided the parties with the long form on the afternoon of August 26, 2022 and believed that it had complied with its voluntary agreement with the other parties, which raised no objections to the documents served, and with Your Honor’s order.
LTD believes that any separate requirement to “file” the long form would be unnecessary. First, all of the parties that have signed the Protective Order have received the long form, such that filing it in the public docket would appear to be duplicative given the uncertainty over whether future proceedings will even be necessary. In addition, LTD notes that its long form is not pending with the FCC and unless or until that status changes, there is no value in further dissemination and disclosure of its contents, which remain highly sensitive and proprietary to LTD.
Every time these documents change hands, particularly through electronic transmission, it poses a risk of unintended disclosure of highly confidential financial, technical, and other business information with potentially very damaging consequences for LTD. Second, separately filing highly confidential, confidential, and public versions of more than 1,500 pages will take significant time and effort, at a time when Your Honor is considering action on the petitioners’ Motion to Stay and Motion to Certify. …

From MTA…

This letter is sent to address the following statement, which I made at the Prehearing on April 24, 2023, concerning information provided on August 26, 2022, by LTD in relation to LTD’s long form application before the FCC:
We received approximately 200 pages of material. We saw Bates stamps on the material that went up to approximately page 1500. We do not know as a matter of certainty whether or not we have all of the materials that have been submitted to the FCC, but it appears to us that we do not. (Tr. p. 30, lines 15-21).
Mr. Coran, as counsel for LTD, recently provided information to us as to the manner in which the LTD information was transmitted on August 26, 2022, to the Department, Office of Attorney General, and our office (as counsel for Petitioners).
We have determined that we did, in fact, receive 1562 pages of Bates stamped materials from LTD on August 26, 2022. Through inadvertence, the statement that we received approximately 200 pages of material recognized only the Highly Confidential Trade Secret information provided by LTD and did not recognize the significantly larger part of non-confidential information also provided.

 

More on MN PUC’s case on LTD Broadband: Dep of Commerce says suspend ETC – LTD disagrees

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Yesterday I posted an update from the Minnesota PUC on the ongoing saga of LTD Broadband and the PUC looking into revoking their ETC status, a status they needed to get federal funding. (I went into greater details on the history yesterday.) Documents filed yesterday indicated that the Department of Commerce recommended the PUC continue looking into the revocation.

Today’s update, goes farther. This time the Department of Commerce recommends that the MN PUC also suspend LTD Broadband’s ETC designation during this time…

The Office of the Attorney General—Residential Utilities Division (“OAG”) files this Response in support of the Minnesota Telecom Alliance and Minnesota Rural Electric Association’s (“Petitioners”) Motion to Suspend ETC Designation (“Motion to Suspend”) and Motion to Certify. Granting the Motion to Suspend will protect ratepayers from being harmed if the Federal Communications Commission (“FCC”) reverses its decision to deny LTD Broadband, LLC’s (“LTD”) long-form application (“Application”) for Rural Digital Opportunity Fund (“RDOF”) funding by (1) ensuring RDOF money does not flow to LTD before the Commission determines whether LTD is capable of performing adequately, and (2) enabling other potential providers to seek federal funding to build out rural broadband service in the event LTD cannot deliver. Granting the Motion to Certify will allow the Commission to use its unique expertise to decide issues that could have important consequences for rural broadband development.

Today’s update also includes a response from LTD Broadband saying they disagree with the petitions to motion to suspend and motion to certify…

LTD Broadband, LLC (“LTD”), by its counsel and pursuant to Minn. R. 1400.6600, hereby responds to the “Motion to Certify” filed on March 29, 2023 by the Minnesota Telecom Alliance (“MTA”) and the Minnesota Rural Electric Association (“MREA”) (together, the “Movants”)1 seeking to return this matter to the Commission for immediate consideration of a separate Motion to Suspend ETC Designation2 (“Motion to Suspend” and together with the “Motion to Certify,” the “Motions”) for certain areas in Minnesota.3 Together, the Motions seek to embroil the Commission in entirely unnecessary and potentially lengthy proceedings on the basis of speculation, inconsistent logic, and a fundamentally inaccurate characterization of the posture of LTD’s application for Rural Digital Opportunity Fund (“RDOF”) support before the Federal Communications Commission (“FCC”). The Motions are simply a backdoor attempt to extinguish arbitrarily LTD’s efforts to secure RDOF funding prior to any FCC action on LTD’s pending Application for Review4 in the speculative hope that such an outcome would result in MTA and MREA members obtaining funding under alternative programs in lieu of LTD – the same objective these parties have sought to attain by various means from the moment LTD submitted its application to expand its Minnesota ETC designation.

There has been no change in the circumstances of LTD’s Application for Review that led to the ALJ’s January 18, 2023 order staying the proceedings that the Commission delegated to him,5 and therefore no reason to change the posture of this case and require the state and LTD to expend considerable time and expense in a hearing that may be entirely unnecessary. Nor does the prospect of future broadband funding create an immediacy requiring that the current stay be lifted and the matter be turned back to the Commission. For these reasons, the Motion to Certify should be promptly denied and the present stay should remain in effect pending any further action by the FCC.

Here are their reasons, which they elaborate on in their remarks…

  • The Motions Misstate the Nature of the Relief the FCC May Grant in Ruling on LTD’s Application for Review.
  • The Motions Mount a Collateral Attack on the FCC’s Statutorily Mandated Obligation to Administer the Federal RDOF Program.
  • The Motions Inconsistently Rely Heavily Upon Initial FCC Staff Fact Finding While Unreasonably Disparaging the FCC’s Ability to Render Competently a Final Decision on LTD’s Ability to Meet Its RDOF Obligations.
  • Grant of the Motion to Certify and Further Consideration of the Motion to Suspend Would Squander Judicial and Administrative Resources.

Dep of Commerce recommends MN PUC continue investigation into LTD Broadband’s TEC status

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The Minnesota PUC decided to continue to move forward to look 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.)

Last month, MTA (MN Telecom Alliance) and MREA (Minnesota Rural Electric Association) asked the PUC to suspend LTD Broadband’s ETC status while they are under consideration for ETC revocation. There is a prehearing conference scheduled for April 24. Documents and information for that meeting have been posted on the MN PUC website. The most recent is from the Department of Commerce and signed by MN Attorney General Keith Ellison and supports the position to continue on the case…

Pursuant to Minn. R. 1400.6600 (2021), the Minnesota Department of Commerce respectfully requests that the Administrative Law Judge grant the Petitioners’ motion to certify the January 18 decision to stay this proceeding during the pendency of LTD Broadband’s Federal Communications Commission administrative appeal.1 THIRD PREHEARING ORDER (Jan. 18, 2023) (eDocket No. 20231-192240-01) (“Stay Order”); Petitioners’ Motion to Certify (Mar. 29, 2023) (eDocket No. 20233-194309-04). A Commission order directing the parties to proceed with this contested case would facilitate the ultimate termination of the matter and full record development prior to an FCC decision. While judicial economy is an important consideration, it should not come at the expense of other critical public interests. In this case, those interests include the sound stewardship of limited public resources—approximately $31 million a year—to an entity that may be incapable of delivering on its commitments to Minnesota.

The last sentence says a lot. The entire statement is surprisingly easy to read for those of us not steeped in legalese but I’m going to excerpt the part that it most pertinent to this update…

Although it is possible that the FCC may ultimately deny LTD’s appeal, Minnesota should still undertake a contested case proceeding now. If LTD’s administrative appeal prevails, absent suspension or resolution of this proceeding, federal support would begin flowing to LTD. 47 C.F.R. § 54.802(d) (2022); see, e.g., In re Rural Digital Opportunity Fund, WC Docket No. 19- 126, Rural Digital Opportunity Fund Support For 7,608 Winning Bids Ready to Be Authorized (Dec. 16, 2021). While this would be an acceptable outcome if LTD possesses the technical, managerial, and financial capability to deliver on its commitments, Petitioners have raised allegations that suggest LTD may be unable to deliver:

  • LTD has made significantly different construction cost representations to state agencies when seeking grant support than to the FCC for RDOF support. Thompson Decl. at 11.

  • LTD’s construction cost estimates are significantly less than those developed by Petitioners’ engineering consultants. Id. at 13.

  • The South Dakota commission already concluded that LTD lacked the capacity to construct and operate a much smaller network in South Dakota. In re Appl. of LTD Broadband, LLC for Designation as an ETC for Purposes of Receiving Federal Universal Support, Docket No. TC21-001, FINAL DECISION & ORDER DENYING APPLICATION at 16-17 (SD PUC Mar. 21, 2022).

  • LTD has already defaulted on RDOF locations in Iowa, Nebraska, and North Dakota, California, Kansas, and Oklahoma. Rural Digital Opportunity Fund Auction (Auction 904), DA 21-908, Order ¶ 16 (July 26, 2021); Rural Digital Opportunity Fund Auction (Auction 904), DA 21-1311, Order ¶ 18 (Oct. 20, 2021).

In addition to advancing this proceeding towards termination, lifting the Stay Order would reduce the risks associated with a sudden FCC reversal; namely, funding flowing to an entity the Commission ultimately concludes is incapable of delivering on its commitments. The secondary consequences of such an outcome are equally concerning. Alternative state and federal funding would no longer be available. Motion to Suspend at 21. Minnesotans in communities designated for RDOF support via LTD would continue to lack access to high-quality broadband and voice services. Given the important public considerations at stake and the time sensitivity of this proceeding, this factor supports certification of the Stay Order to the Commission

And here is their conclusion…

For the reasons discussed above, the Department respectfully requests that the Administrative Law Judge grant Petitioners’ motion to certify the Stay Order to the Commission.

Mini update on MN PUC upcoming prehearing on LTD Broadband

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This seems like an update that’s too small to post, but it is nice to have everything archived in one place. What we learned last week…

The follow up is that a prehearing conference has been set for April 24 and the Institute for Local Self Reliance has submitted a file a notice of appearance.

Today we learned that the Institute for Local Self Reliance will appear at the prehearing conference and all subsequent proceedings in the above-entitled matter.

And some background for folks who are walking into the movie midway…

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.)

MN PUC will hold prehearing conference on LTD Broadband’s ETC designation

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I feel like today’s news is really just an addendum to yesterday’s post (MTA & MREA submit a petition to the MN PUC to suspect LTD Broadband’s ETC designation while considering revocation). The follow up is that a prehearing conference has been set for April 24 and the Institute for Local Self Reliance has submitted a file a notice of appearance.

MTA & MREA submit a petition to the MN PUC to suspend LTD Broadband’s ETC designation while considering revocation

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When last we left our heroes at the PUC, they had decided to continue to move forward looking at revoking LTD Broadband’s ETC designation.  Then the prehearing conference was moved from March 6 to March 13, 2023. But as of today there is more news; MTA and MREA are asking the PUC to suspend LTD Broadband’s ETC status while they are under consideration for ETC revocation. It seems to make sense, especially in terms of reducing the chances of replaying the RDOF situation where LTD got exclusive access to federal funds, was disqualified and now those fund will not be invested in Minnesota (at least not in the same way).

Today, the Minnesota Telecom Alliance and Minnesota Rural Electric Association submitted 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. Not all of the documents have been made public (due to trade secrets) but here’s the high level info…

Introduction…

Enclosed via e-Filing, please find the Motion to Certify and the Motion to Suspend ETC Designation (with attachments), including both Public and Highly Confidential Trade Secret versions of the Motion to Suspend and attachments (Declarations of Larry Thompson and Kristine Szabo) on behalf of Minnesota Telecom Alliance and Minnesota Rural Electric Association in the above-entitled docket. Minn. R. 1400.600 provides that, should other parties wish to contest a motion, they must file a written response with the judge and serve copies on all parties, within ten working days after the motion is received.

Petition to certify…

The Minnesota Telecom Alliance (“MTA”) and Minnesota Rural Electric Association (“MREA”) (“Petitioners”) hereby respectfully request that, pursuant to Minn. R. 1400.7600; the Administrative Law Judge (“ALJ”):

(1) Certify to the Minnesota Public Utilities Commission (the “Commission”) both the Stay granted in the Third Prehearing Order dated January 18, 20231 (“Stay Order”) and the Petitioners’ March 29, 2023 Motion to Suspend the Expanded ETC Designation of LTD Broadband LLC (“LTD”) (“Motion to Suspend”), and

(2) Require parties to respond to this Motion to Certify within 10 working days after it is received if they wish to contest this Motion to Certify. 2

Both the Stay Order and Motion to Suspend relate to the effects and ramifications of the Federal Communication Commission’s (“FCC’s”) decision to deny LTD’s long-form application. As the Stay Order recognizes, and as explained below, it would be appropriate for the Commission to address these matters and provide guidance.3

There are more details. And there are public documents available Part 1 Motion to Suspend and Attachments – Public.pdf and Part 2 Motion to Suspend and Attachments – Public.pdf; as well as documents that aren’t available to the public.

As with so many legal documents and arguments, lots of time is spent addressing the formalities that aren’t as important to the average reader, but here’s a section that I think gets to the root of the need…

A final determination by the Commission on the Motion to Suspend would materially advance the ultimate termination of the hearing.
Minnesota Rule 1400.7600(B) directs consideration of:
[W]hether a final determination by the agency on the motion would materially advance the ultimate termination of the hearing….
The Stay Order provides that the contested case hearing process will not resume until the FCC makes a ruling on LTD’s appeal of the denial of its long-form.5 As explained in the Motion to Suspend, deferring action on LTD’s ETC designation until the FCC makes that ruling would expose the over 160,000 Minnesotans in LTD’s Expanded ETC Area to the loss of substantial federal BEAD and Minnesota BTB funding if the FCC Bureau’s decision is reversed, as LTD has
requested. As also explained in the Motion to Suspend, the Commission would not have the time or ability to prevent such a reversal from leading to ineligibility for these funds.
The Stay Order assumed that the Commission could act to correct problems regarding the use of RDOF support after the FCC rules, stating:
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.6
Unfortunately, the ineligibility trigger for the BEAD and the Minnesota BTB programs is FCC authorization for RDOF support. There is no provision in the BEAD processes for subsequent corrective action by the Commission if the FCC authorizes RDOF support. This combination leaves Minnesotans in the unserved locations encompassed by LTD’s expanded ETC designation at great risk of the Commission being unable to meet its obligations to protect their interests if the FCC reverses the FCC Bureau decision. Moreover, the mere possibility of reversal will likely discourage potential applicants from seeking BEAD or BTB funding for locations in Expanded
ETC Area.

MN PUC prehearing conference on LTD Broadband ETC eligibility moved to March 13

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This is a continuing story. 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.)

The prehearing conference has been moved from March 6 to March 13…

The Commission Staff’s request is GRANTED. The prehearing conference scheduled for March 6, 2023, is CANCELLED.

A prehearing conference will be held by telephone on March 13, 2023, at 10:00 a.m. to review the status of the case. At that time, please call 1-877-304-9269 and when prompted enter passcode 406954#.

Update on MN PUC LTD Broadband situation – no update from FCC

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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.)

The latest update is a letter from LTD Broadband reporting that they have asked the FCC to reconsider their decision…

LTD Broadband submitted an Application for Reconsideration (AFR) to the FCC on September 8, 2022. As of February 1, 2023 this application remains pending and the FCC has taken no action

MN PUC notes on LTD Broadband situation: stayed ruling, ILSR may intervene, LTD counsel withdraws

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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.)

Here’s the latest update…

LTD requested that this matter be stayed pending LTD’s appeal of the Federal Communications Commission’s (FCC) denial of its Rural Digital Opportunity Fund (RDOF) long-form application. Minnesota Telecom Alliance (MTA) and Minnesota Rural Electric Association (MREA) (together, Petitioners), the Minnesota Department of Commerce and the Office of the Attorney General-Residential Utilities Division argue that this matter should proceed to hearing. The parties filed letters in support of their respective positions and the record on the parties’ requests closed on October 18, 2022, the date the last letter was filed.

On January 18, 2023, the MN PUC decided…

IT IS HEREBY ORDERED THAT: 1. These proceedings are STAYED pending a ruling by FCC on LTD’s appeal of the denial of its long-form application. 2. LTD shall serve and file a status report every 120 days beginning on February 1, 2023. 3. A prehearing conference will be held by telephone on March 6, 2023, at 2:30 p.m. to review the status of the case. A

They also decided (also Jan 18) …

On September 16, 2022, the Institute for Local Self-Reliance (ILSR) filed a Motion to Intervene (Motion). LTD filed an objection to the Motion on September 23, 2022. Based on all the files and proceedings of the matter, the Administrative Law Judge makes the following: [185245/1] 2 ORDER 1. The Motion of Institute for Local Self-Reliance is GRANTED. 2. The Institute for Local Self-Reliance is admitted to this proceeding as a full party. 3. The Institute for Local Self-Reliance will file a Notice of Appearance at its earliest convenience but in no event later than January 27, 2023.

And on January 19, Taft et al withdrew as LTD Broadband’s Counsel…

Please take notice that as of January 19, 2023, and pursuant to Minn. R. 1400.5700, Taft Stettinius & Hollister LLP hereby withdraws as counsel for LTD Broadband, LLC. LTD Broadband, LLC’s address is PO Box 3064, Blooming Prairie, MN 55917 and its phone number is (507) 369-2669.

Will BEAD fund unlicensed spectrum? Good question and it will matter in Minnesota!

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So many posts about the FCC maps and funding and details because the details will impact how much money communities will receive for broadband in the next few years. The issue this post – unlicensed spectrum versus licensed spectrum. Telecompetitor reports…

The BEAD program is designed to cover some of the costs of deploying broadband to unserved rural areas. In establishing rules for the program, NTIA omitted fixed wireless service that relies totally on unlicensed spectrum for last mile connectivity from its definition of reliable service – a decision that impacts the BEAD program in two ways.

It makes FWA deployments using unlicensed spectrum ineligible for funding. And it makes areas that have high-speed broadband eligible for overbuilds if the only high-speed broadband available is FWA that relies on unlicensed spectrum.

But some folks want that changed…

Seven U.S. senators sent a letter to Alan Davidson, head of the National Telecommunications and Information Administration, today urging NTIA to revise its definition of reliable broadband for the Broadband Equity Access and Deployment (BEAD) program.

So what’s the difference between licensed and unlicensed spectrums?

Here’s a definition from IotaComm. I was hoping for a less commercial perspective but also high level enough to take in easily.

Most of the radio spectrum is licensed by the FCC to certain users, for example, television and radio broadcasters. Individual companies pay a licensing fee for the exclusive right to transmit on an assigned frequency within a certain geographical area. In exchange, those users can be assured that nothing will interfere with their transmission.

Alternatively, organizations can still use the airwaves to transmit communications without getting permission from the FCC, but they must transmit within those parts of the spectrum that are designated for unlicensed users. The amount of spectrum that is available for public and unlicensed use is very small—only a few bands. Both the size of the area and the lack of exclusivity mean there’s greater potential for interference from other users located nearby. (It’s like the “wild west” of radio communication.)

The Telecompetitor article touches on it a little…

NTIA hasn’t said much about why it defined reliable broadband as it did. But David Zumwalt, CEO of the Wireless Internet Service Providers Association (WISPA) told Telecompetitor a few months ago that NTIA’s primary concern was the future availability of unlicensed spectrum.

WISPA is particularly concerned about whether areas that already have unlicensed high-speed FWA will be eligible for overbuilding through the BEAD program, as many WISPA members already have made high-speed FWA deployments that rely on unlicensed spectrum.

Folks in Minnesota may have a special interest in this issue. According to the FCC map, LTD Broadband is serving a large portion Southern Minnesota with unlicensed spectrum, as the map below indicates.

MN Attorney General, MTA and MREA and Taft law chime in on MN PUC’s investigation into LTD Broadband

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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. The PUC has received some reactions to that request…

 

MN Attorney General Keith Ellison says…

The Office of the Attorney General—Residential Utilities Division (“OAG”) files this supplemental letter pursuant to Ms. Severson’s October 14, 2022 email stating that all parties may file additional responses or supplemental information by 4:30 today. This letter responds to the letter submitted earlier today by LTD Broadband LLC (“LTD” or “Company”).

LTD claims that the OAG’s concerns that the Company could receive support before it is thoroughly vetted, that Rural Digital Opportunity Fund (“RDOF”) support could flow prematurely to the Company, and that it could be three years before the Federal Communications Commission (“FCC”) or the Minnesota Public Utilities Commission (“Commission”) could act if that occurred are unfounded. LTD claims are inaccurate and warrant a further response.

First, it is the Commission, not the FCC that is responsible for determining whether LTD should receive an eligible telecommunications carrier (“ETC”) designation, or in this case have its designation revoked. If the Commission determines that LTD is not able to meet its RDOF commitments in Minnesota and revokes LTD’s expanded ETC designation, any decision by the FCC is moot; LTD would no longer be eligible to receive RDOF support even if the FCC Bureau[1]level decision is overturned.

Second, even if the OAG has six-to-eight weeks’ notice before LTD’s long-form application is approved and the “ready to authorize” Public Notice issues, once an ETC receives “ready to authorize” status, there is no delay in disbursement of support. Rather, the Public Notice states that, upon its issuance, “the Universal Service Administrative Company (USAC) is authorized and directed to take the steps necessary to disburse from the Universal Service Fund the amounts identified in” the Public Notice and to disburse the support in “120 monthly payments, which will begin at the end of [the] month.” It defies logic for LTD to suggest that six-to-eight weeks would be sufficient time to take the appropriate next steps to determine whether the Company’s expanded ETC designation should be revoked prior to “LTD actually receiv[ing] RDOF support.” Once RDOF support is disbursed, it is very difficult to recover. Thus, it is vital that discovery commence and the contested case be conducted “expeditiously,” as requested by the Commission in its referral order.

Third, it is entirely accurate to say that it could be three years before the Commission or the FCC could act to stop the flow of RDOF support to LTD. This is because the FCC’s rules do not require LTD to provide the Commission with any information about whether the Company is meeting its FCC-mandated network buildout requirements until the third year that LTD receives RDOF support. And consumers, to the extent they have concerns about LTD’s performance, will not raise their concerns with the FCC or USAC, nor would the FCC or USAC likely be the ones to address them. As the entity tasked with designating and certifying ETCs, that task falls to the Commission. Indeed, the instructions to the annual certification form for RDOF recipients states that “[i]f USAC believes there may be a violation or potential violation of a statute or a Commission regulation, rule, or order, [the ETC’s] form may be referred to the Federal, state, or local agency responsible for investigating, prosecuting, enforcing, or implementing the statute, rule, regulation, or order.”

The MTA and MREA say (in part)…

This letter is submitted in response to the letter filed on behalf of by LTD Broadband, LCC (“LTD”) on October 13, 2022.

Petitioners agree with the Department of Commerce (“Department”) and Office of Attorney General (“OAG”)1 that LTD’s request for stay should be denied and this proceeding be conducted expeditiously as the Commission has ordered. 2 As the Department and OAG stated, the Nebraska and South Dakota decisions actually “highlight why the Minnesota proceeding should continue.” Those two decisions preserved a status quo in which LTD is currently not eligible for Rural Digital Opportunity Fund (“RDOF”) support. As a result, the Nebraska and South Dakota decisions protect the public interest in those states from the negative consequences of a possible reversal of the FCC’s decision to deny LTD’s long form.

The opposite is true in Minnesota. In Minnesota, a stay would allow LTD to obtain RDOF funding in the event of an FCC reversal before the Commission would have an opportunity to determine whether it should revoke the Eligible Telecommunications Carrier (“ETC”) designation LTD needs to qualify for this RDOF funding.

The Commission initiated this proceeding out of concern (based on information presented by Petitioners and other commentors) that LTD would not be capable of delivering on its RDOF commitments to provide broadband to over 102,000 unserved locations in Minnesota. The purpose of the proceeding was to reexamine whether LTD qualifies for the ETC designation which is a precondition to receiving RDOF funding. Given the importance of the decision and its potential effects, the Commission wanted the proceeding completed “expeditiously.” 3

Staying this proceeding would frustrate the Commission’s intent and could lead to severe and irreversible harm to the public interest that this proceeding was initiated to protect. Approval of RDOF support for LTD in Minnesota would significantly reduce Minnesota’s share of approximately $41.5 billion in new federal broadband funding under the Broadband Equity, Access, and Deployment (“BEAD”) program. 4 Each state’s share of this BEAD funding will be “distributed primarily based on the relative number of “unserved” locations … in each State and Territory.”5 If the FCC were to reverse its decision as to LTD in Minnesota, LTD’s 102,000 Minnesota locations would no longer be considered unserved.6 These locations are a very substantial share of Minnesota’s unserved locations. As a result, Minnesota’s BEAD funding would be proportionately and substantially reduced.7

Taft Law (LTD Broadband) says…

Pursuant to Ms. Severson’s October 14, 2022 email stating that all parties may file additional responses or supplemental information by 4:30 today, I write to provide a brief response to statements made in the October 14, 2022 letter jointly submitted by the Department of Commerce and the OAG (“Department/OAG Letter”).

The Department/OAG Letter expresses concern that LTD could receive RDOF support before it is “thoroughly vetted,” that RDOF support could “flow prematurely” to LTD, and that it “could be three years” before the Commission or FCC could act if that occurred. Those concerns are unfounded.

First, RDOF support cannot flow to LTD until and unless LTD is successful in challenging the FCC staff decision denying LTD’s long-form application. If LTD is successful in doing so, and the FCC grants LTD’s long-form application, that will mean that LTD has been “thoroughly vetted” by the FCC and that RDOF support is not “flowing prematurely” to LTD.

Second, it is important to understand the chronology of the process. If and when LTD successfully challenges the FCC staff decision, and assuming the FCC’s process that has been consistently applied, then the FCC will issue a “Public Notice” saying it is “ready to authorize” support, subject to LTD submitting a letter of credit and bankruptcy opinion letter within a few weeks thereafter. Once LTD submits these documents, the FCC will issue another Public Notice stating that LTD is “authorized” to receive RDOF funding. That generally happens the second week of each month. The soonest any support would be wired from the FCC to LTD would be the last business day of the month. So if and when LTD’s appeal is successful, there would still be plenty of time—around six to eight weeks—for the parties in this proceeding to regroup and determine next steps before LTD actually receives any RDOF support. The Department and OAG have repeatedly suggested that there would be a risk of imminent harm if the FCC staff decision is reversed—the chronology above demonstrates why that concern is significantly overstated. As I stated at our previous conferences, LTD would agree to provide periodic updates to you and the parties regarding the status of LTD’s application for review. Third, it is an exaggeration to say that it could be three years before the Commission or FCC could act to stop the flow of RDOF support to LTD. Each year, the Commission will have the opportunity to review LTD’s compliance with ETC requirements—the 2022 review is just concluding. See Commission Docket No. P999/PR-22-8. In addition, if the FCC, USAC, Commission, a party to this proceeding, or even an LTD customer identified a truly urgent concern relating to LTD’s compliance with the RDOF and ETC requirements, the FCC and USAC could act to temporarily suspend the flow of support. Indeed, USAC and the FCC have done so where, for example, a letter of credit lapses.

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

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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.

South Dakota PUC closes the docket on LTD Broadband without giving ETC designation

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KELO reports…

State regulators have shut the door for what might be the final time on a company that has been seeking a federal subsidy to provide broadband service in many under-served areas of South Dakota.

The South Dakota Public Utilities Commission on Tuesday decided to close the docket on LTD Broadband. The Minnesota company has been seeking designation by the state commission as an eligible telecommunications carrier so that it could receive federal funding.

South Dakota Telecommunications Association has been fighting against granting the designation, arguing that LTD Broadband lacked the financial wherewithal to accomplish the project.

SDTA requested the closure. LTD Broadband wanted the commission to only suspend the docket.

The story is important in Minnesota because the Minnesota PUC is also looking at LTD Broadband’s  status as an eligible telecommunications carrier (ETC). The ETC designation is (or maybe was) important when LTD Broadband applied for larger amounts of federal (RDOF) funding because ETC was required by those receiving funding. LTD Broadband was awarded the opportunity to apply for the funds but as since been disqualified.

So one might ask why the ETC designation is still an issue. In South Dakota, they want to make sure that unresolved issues do not leave South Dakota in a precarious position in the future…

The state commission’s chairman, Chris Nelson, said Tuesday that the state commission had “bent over backwards” to allow LTD Broadband to make its case. “We’ve gone a long distance trying to make this thing work,” he said.

Nelson noted that the FCC staff has reached the same conclusion that the state commission had and said he doesn’t think the federal commission will overturn its staff’s decision. Nelson said he doesn’t want an unresolved issue of LTD Broadband’s eligibility to cloud future funding opportunities for other companies seeking to deliver broadband in South Dakota.

LTD Broadband responds to ILSR’s participation in PUC case

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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.)

In early September, the PUC asked LTD to share their long form RDOF application. They also invited folks to send comments (by Sep 16) in advance of a prehearing conference call planned for Sep 20. Several folks did response including the Institute for Local Self Reliance.

Here’s LTD’s response to ILSR’s offer to act as proposed intervenor…

LTD Broadband, LLC (“LTD”) respectfully objects to the Motion to Intervene filed by the Institute for Local Self-Reliance (“ILSR”) because ILSR has not met the standard set forth in Minn. R. 1400.6200. ILSR’s Motion does not make the showings required by that rule, and ILSR has also failed to demonstrate that its alleged interests will not be adequately represented by other parties to this proceeding such as the Minnesota Department of Commerce (“Department”) or the Office of the Attorney General—Residential Utilities Division (“OAG[1]RUD”). Under Minn. R. 1400.6200, subp. 1., a person who desires to intervene in a contested case proceeding must submit a petition that meets four requirements: the petition “[1] shall show how the petitioner’s legal rights, duties, or privileges may be determined or affected by the contested case; [2] shall show how the petitioner may be directly affected by the outcome or that petitioner’s participation is authorized by statute, rule, or court decision; [3] shall set forth the grounds and purposes for which intervention is sought; and [4] shall indicate petitioner’s statutory right to intervene if one should exist.” If the petition makes these showings, it should be granted “unless the judge finds that the petitioner’s interest is adequately represented by one or parties participating in the case.” Minn. R. 1400.6200, subp. 3. ILSR’s Motion fails to make the required showings.

The response is longer but continues in the same theme. This is the tactic that LTD Broadband took in the live meeting at the PUC earlier this year too. They focus on the formalities of the process rather than addressing the issues of the case.