The Minnesota Public Utilities Commission will be discussing the matter of LTD Broadband’s ETC designation on Thursday. I recently shared their staff briefing papers, which include detailed background of the issue and outline the possible decision options. A few days ago LTD Broadband ask the PUC to remove them from the agenda.

The Minnesota Attorney General has responded, essentially opposing LTD Broadband’s request and asking the PUC to suspect the expanded ETC designation until the matter is permanently resolved…

Dear Mr. Seuffert:
The Minnesota Department of Commerce opposes LTD Broadband’s recommendation to delay the above-referenced proceeding yet again. The Commission referred this matter to the Office of Administrative Hearings for a contested case more than fourteen months ago. As the Department detailed in its initial comments, ongoing concerns over LTD’s fitness to serve as an eligible telecommunications carrier (ETC) has created regulatory uncertainty that interferes with the ability of rural Minnesota communities and service providers to access other federal subsidies for broadband deployment.
There is no guarantee that the Federal Communications Commission (FCC) will issue a timely final decision regarding LTD’s administrative appeal. A final order arising from a similar appeal by StarLink, for example, has been pending with the FCC for at least two months. Moreover, if the FCC reverses its original denial of LTD’s long-form application, Minnesota will not have enough time to adequately evaluate LTD’s fitness to serve as an ETC in the areas of the state where it was a provisional Rural Digital Opportunity Fund (RDOF) winning bidder. Even an expedited contested case would, realistically, last at least several months during which federal subsidies could begin to flow to LTD while rural Minnesota communities and other service providers would be choked off from other sources of financial support.
To protect the public interest, the Department requests suspension of LTD’s expanded ETC designation until this matter is permanently resolved. The Department and other intervenors, through the submission of affidavits from engineering experts, have met their threshold obligation for the purposes of suspension – demonstrating that it is more likely than not LTD cannot meet its expanded ETC obligations. To be clear, suspension does nothing to change the underlying burden of proof on whether to permanently revoke LTD’s expanded ETC designation. Suspension is simply necessary to prevent harm to the public interest until this case is permanently resolved.

Minnesota Telecom Alliance and Minnesota Rural Electric Association have also responded, opposing LTD Broadband’s request…

This letter is submitted by the Minnesota Telecom Alliance (“MTA”) and Minnesota Rural Electric Association (“MREA”) in opposition to the November 13, 2023 request of LTD Broadband, LLC (“LTD”) for further delay based on the circulation of a Federal Communications Commission (“FCC”) draft order concerning LTD’s Application for Review.
Completely contrary to LTD’s position, the circulation of that draft order makes it all the more essential that the Commission act immediately on the Motion to Suspend because failing to do so would:
1. Potentially moot any later Commission order regarding whether LTD can meet its Eligible Telecommunications Carrier (“ETC”) obligations to 102,000 locations in Minnesota; and
2. Leave entirely up to the FCC the critical public interest question of whether Minnesotans in these locations will be able to actually obtain high speed Broadband service (which has been LTD’s goal from the start of this proceeding). These totally unacceptable results would occur because:
1. The Broadband Equity, Access, and Deployment (“BEAD”) program prohibits BEAD funding for any locations for which the FCC has issued a Public Notice that Rural Digital Opportunity Fund (“RDOF”) support is ready-to-authorize or is authorized. 1 (Minnesota’s Border to Border (“BTB”) Program has adopted this same restriction that prohibits BTB funding to areas that have an enforceable commitment.);2 and
2. Such a Public Notice could be issued very shortly after an FCC Order, sooner than time estimates for actual funding, and long before the Commission could react.
These facts make it clear that, if the Commission waited for the issuance of the FCC Order, it would be impossible for the Commission to issue an order before the announcement of the Public Notice that would preclude BEAD funding for the 102,000 locations that would, in effect, prevent the Commission order from protecting the public interest.
Further, all of the evidence before the Commission fully justifies suspension, including:
1. Engineering analysis provided by Petitioners showing that LTD could not install fiber needed to provide Broadband service to these 102,000 Minnesota locations even if LTD had all of the $311 million RDOF support for those locations; and
2. Engineering analysis provided by the Department that also shows that LTD cannot provide Broadband service to those locations.
These facts show there would be no benefit to the public from enabling LTD to obtain RDOF support, only an illusion of a benefit. This would come at the cost of preventing qualified providers, that could otherwise obtain and use BEAD funding and State BTB Broadband funding, from providing high-speed Broadband service in LTD’s ETC area.
It is the Commission’s responsibility, not the FCC’s, to protect the public interest in Minnesota, and the Commission has more than an ample record to suspend LTD’s ETC expanded designation. Therefore, there is no merit to LTD’s argument that the Commission should wait for a decision by the FCC. To the contrary, federal law contemplates State commissions acting through ETC designations before the FCC acts to determine a provider’s eligibility for RDOF funding.
Under Minnesota law, public interest considerations take priority over private interests. Here, the severe risk to residents in the 102,000 locations within LTD’s ETC area, combined with the factual information now available to the Commission, fully justify suspending LTD’s expanded ETC designation unless and until LTD can provide evidence showing it can be reasonably expected to perform its ETC obligations.

LTD Broadband responds countering the responses above…

LTD Broadband, LLC (“LTD”), by counsel, hereby replies to the letters filed earlier today on behalf of the Minnesota Department of Commerce (“DOC”) and the Minnesota Telecom Alliance (“MTA”) and Minnesota Rural Electric Association (“MREA”), each opposing LTD’s request that Decision Item 1 be deleted from the Public Utilities Commission’s November 16, 2023 Agenda Meeting. As detailed herein, the DOC and MTA/MREA once again
have failed to articulate any public interest basis for the Commission to pursue a contested proceeding in this matter at this time.
Both the DOC and MTA/MREA pile speculation upon conjecture to reach a wholly unsupported conclusion that immediate action is required. Broken down to its essence, the argument is that if the FCC grants LTD’s Application for Review at any point, then the Commission might have limited time to conduct its own proceedings before the FCC’s staff might possibly announce that LTD may, upon submission of additional showings, become eligible for Rural Digital Opportunity Fund (“RDOF”) support.

That is a multitude of future conditional events that would be required before the asserted harm that is alleged could occur, i.e., an award of RDOF funding that conceivably blocks other funding for the locations for which LTD was a provisional winner of support.
In the absence of even one of these many dominoes being tipped, there is no credible basis to engage in further administrative proceedings, which would not only impose significant time, financial and other resource burdens upon all parties and the Commission but would also be prejudicial to LTD. Indeed, the lead arguments raised by DOC and MTA/MREA are contradictory. In its letter, DOC expresses concern that there’s “no guarantee that the [FCC] will issue a timely decision regarding LTD’s administrative appeal.” But for so long as that remains the case, the status quo is maintained, no RDOF support can be authorized to LTD, all locations remain eligible for other broadband support programs (including BEAD) to the extent they are
not now otherwise served, and LTD’s ETC designation covering Minnesota RDOF locations remains effectively dormant.
Taking the opposite view, MTA/MREA assert that “the circulation of that draft order makes it all the more essential that the Commission act immediately” based on the specious contention that FCC action could “[p]otentially moot any later Commission order” governing LTD’s ETC status in Minnesota. MTA/MREA make no legal showing why any FCC action could preempt Commission action in this case, let alone a factual showing that “it would be
impossible” for the Commission to act before LTD received RDOF funds.
In short, both the DOC’s and MTA/MREA’s arguments are based not only on hypothesized events (FCC action or lack thereof), but also on a series of other potential followon events to which both simply presume the Commission would be unable to respond in timely fashion should the first of their speculative occurrences come to fruition. There is no evidence to support such presumptions. Moreover, neither the DOC nor MTA/MREA has made any fact based showing that current circumstances have any negative impact on the public interest. Accordingly, it makes far more sense to defer any Commission engagement on this matter pending further FCC action, which now seems likely to occur and may by itself preclude any need for further proceedings before the Commission.

Le Sueur County responded explaining how the issue has had an impact on them…

I was made aware the Public Utilities Commission (PUC) will be discussing on November 16, the revocation of expanded Eligible Telecommunications Carrier (ETC) designation of LTD Broadband (LTD) and denying LTDs funding certification for 2023.

I want to thank you for your time and attention to this very important matter. As you know, the issue of the ETC designation for LTD is a complex one, that is intertwined with funding ramifications that directly link to future fiber access to citizens in our county and throughout Minnesota.

I am not a subject matter expert on whether LTD qualifies and should carry ETC designation, but I can share with you the impact LTD and its RDOF winning bid has had on our county and its citizens, which I hope you take into consideration as you decide what direction to take on ETC designation and funding certification.

As a rural county with limited fiber infrastructure, many of our citizens have had to rely on wireless internet service providers for our internet, with LTD being a key provider of those services. While we were, and are grateful, for LTD providing wireless services to our area while we wait for fiber infrastructure, unfortunately over the past several years we have heard many complaints about speed and reliability of the wireless service and the quality of customer service.

Furthermore, our county experienced a Border-to-Border grant being denied in 2021 from the State of Minnesota based on RDOF census tracts, a decision that has had a chilling effect on providers looking to work in these areas. Further, we continue to be concerned about how winning RDOF census tracts are counted in BEAD allocations, thus shorting our county of much needed federal resources to install fiber networks.

On a separate, but related front, we recently met with LTD representatives to discuss with them their FCC speed reporting, which showed many locations eligible for 250/250 service. During that meeting, we were happy to hear about claimed improvements in their wireless service technology, and some preliminary work on fiber projects. However, unfortunately, we did not hear about any significant plans to broadly install fiber networks in the county within RDOF census tracts.

As a follow-up to that meeting with LTD, the county reached out to several citizens and current LTD customers and encouraged them to contact LTD to enhance their speeds if they wished to improve their service. Based on the responses back from those citizens, none were able to improve their speeds, and in fact were told improved service was not available. Based on this knowledge, the county worked and continues to work on challenging speed reporting to the FCC.

When considering LTDs ETC designation, I would recommend you question and closely examine LTDs
capabilities and plans to install fiber networks to homes and businesses, especially within RDOF census tracts.

For your reference, we believe LTD has been awarded 415 census tracts in our County. The entire RDOF award for LTD amounts to around $1 million in our County, an average of $2,410 per census tract. Based on our past work, $1 million is far short of the public subsidy needed to install fiber networks in these census tracts.

Thanks again for your time and attention to this issue and examining if LTD has the capability of installing fiber networks and should carry ETC designation.

I would also like to call to your attention the following correspondence that we sent to the Governor’s
Office in September that further outlines the issues that providers who overreport service create for
communities and local providers.

The Attorney General’s Office also responded…

The Office of the Minnesota Attorney General—Residential Utilities Division (“OAG”) respectfully submits this letter in opposition to LTD Broadband LLC’s (“LTD”) request that the Minnesota Public Utilities Commission (“Commission”) delay consideration of Petitioners’ Motion to Suspend (“Motion”) because the Federal Communications Commission (“FCC”) placed LTD’s Application for Review on its Items on Circulation. For many months, LTD’s defense to the Motion has leaned heavily on the fact that the FCC had not taken further action on LTD’s Application for Review. LTD’s initial comments observed “[t]here has been no change in the circumstances of LTD’s Application for Review.”1 LTD argued the Motion was premature and based upon “a skewed and inconsistent account of the status of proceedings before the FCC concerning LTD’s long-form application.”2 The thrust of LTD’s comments was that there would be plenty of time to engage the Commission’s attention if and when FCC returned its attention to LTD.

In response to these arguments from LTD, the Minnesota Telecom Alliance (“MTA”), the Minnesota Rural Electric Association (“MREA”), the Department of Commerce, OAG, and several additional commentors have continued to raise concerns that (1) the FCC could move on LTD, and if FCC acted (2) Minnesotans will be harmed in the absence of Commission action, because LTD cannot deliver the services it pledges to provide.3 Rather than engage the substance
of these concerns, LTD doubled-down in its Reply Comments on the argument that the Motion was premature. LTD complained that there was “no evidence that we have seen from the Commission that [FCC] action will take place anytime soon.”4

It was, then, perplexing to see LTD file a letter yesterday citing an FCC action—the absence of which was foundational LTD’s ripeness argument opposing the Motion—as a basis to once again scuttle consideration of MTA and MREA’s Motion.

The fact of the matter is that LTD’s appearance on FCC’s Items on Circulation list moves LTD a step closer to receiving funding it is ill prepared to deploy. FCC’s action moves Minnesotans a step closer to having once-in-a-generation rural broadband funding go to a carrier
that is unequal to the task of building out the vital infrastructure that the people of greater Minnesota need. It moves rural communities a step further away from alternate sources of funding (e.g., federal Broadband Equity, Access, and Deployment (“BEAD”) program and the State Border to Border (“BTB”) funding), which could otherwise meet some of the regional need for broadband
infrastructure funding.

There is urgent need for Commission action to ensure that scarce Universal Service Fund dollars are not squandered. The events cited by LTD provide no reasonable basis to delay consideration of this matter. If anything, they hasten the need for the Commission’s attention. The OAG respectfully requests the Commission deny LTD’s request to pull this matter from the November 16, 2023 agenda meeting.