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.
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…
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.
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.
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#.
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
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.
The FCC reports…
By this Public Notice, the Wireline Competition Bureau (WCB), in conjunction with the Office of Economics and Analytics (OEA), authorizes Rural Digital Opportunity Fund (Auction 904) support for the winning bids identified in Attachment A of this Public Notice.
For each of the winning bids identified in Attachment A, we have reviewed the long-form application information, including the letter(s) of credit and Bankruptcy Code opinion letter(s) from the long-form applicant’s legal counsel. Based on the representations and certifications in the relevant long-form application, we authorize and obligate support for the winning bids listed in Attachment A.
The FCC announces the latest RDOF Winners…
By this Public Notice, the Wireline Competition Bureau (WCB), in conjunction with the Office of Economics and Analytics (OEA), authorizes Rural Digital Opportunity Fund (Auction 904) support for the winning bids identified in Attachment A of this Public Notice. For each of the winning bids identified in Attachment A, we have reviewed the long-form application information, including the letter(s) of credit and Bankruptcy Code opinion letter(s) from the long-form applicant’s legal counsel. Based on the representations and certifications in the relevant long[1]form application, we authorize and obligate support for the winning bids listed in Attachment A.
There was one winner from Minnesota:
AMG Technology Investment Group, LLC
Census blocks: 384
Locations: 1,408
Total Award: $3,736,316
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.
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.
I’ve been tracking what’s happening with MN PUC looking into revoking LTD Broadband’s expanded ETC designation (get background). The latest development is that Representative Dave Lislegard sent a letter to the MN PUC…
I’m writing to encourage the Public Utilities Commission to revoke LTD Broadband’s expanded ETC designation and to expedite the proceeding.
A brief update on an online Minnesota broadband saga.
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.
The Institute for Local Self Reliance responded as a proposed intervenor…
The applicant, Institute for Local Self-Reliance (ILSR) is a research and advocacy nonprofit organization with offices in Minnesota, focused on building an American economy driven by local priorities. ILSR works with a diverse group of allies, partners, and local communities on policies to improve local Internet access. ILSR represents the interests of local communities that are not necessarily represented by any other part in the proceeding and has a statutory right to intervene pursuant to Minn. R. 1400.6200 (2021).
ILSR can provide facts and insight as well as extensive contextual information related to broadband access, funding, and deployment in Minnesota.
We recognize the petition against LTD Broadband’s expansion in Minnesota as an opportunity to advocate for the public interest and ensure that valuable public dollars are spent in a way that will bring quality, affordable connectivity to communities as soon as possible. The applicant hereby requests it be allowed to intervene as a party in the above-captioned proceeding.
The FCC reports…
By this Public Notice, the Wireline Competition Bureau (WCB), in conjunction with the Rural
Broadband Auctions Task Force (RBATF) and the Office of Economics and Analytics (OEA), authorizes
Rural Digital Opportunity Fund (Auction 904) support for the winning bids identified in Attachment A of
this Public Notice.
For each of the winning bids identified in Attachment A, we have reviewed the long-form
application information, including the letter(s) of credit and Bankruptcy Code opinion letter(s) from the
long-form applicant’s legal counsel. Based on the representations and certifications in the relevant longform application, we authorize and obligate support for the winning bids listed in Attachment A.
We will also soon post a state-level summary under the “Results” tab on the Auction 904
webpage at https://www.fcc.gov/auction/904/round-results.1
The summary will provide for each longform applicant included in this Public Notice: 1) the total support amount over 10 years and total number
of locations that the long-form applicant is being authorized for in each state, 2) the total number of
locations to which the authorized support recipient must offer the required voice and broadband services
for each performance tier and latency in each state, and 3) the eligible census blocks included in the
winning bids that are being authorized in each state.
Fierce Telecom reports…
SpaceX subsidiary Starlink asked the Federal Communications Commission (FCC) to reconsider a decision to deny it $885.5 million in rural broadband funding, arguing the decision handed down in August was “flawed as a matter of both law and policy.”
The company filed what is known as an Application for Review with the Commission. Such applications are essentially appeals from an aggrieved party which ask the FCC to revisit actions taken on the grounds that they conflict with established statutes, regulations, precedent or policy or rely on a policy or precedent that should be changed or overturned.
Last month, the FCC rejected Starlink’s winning bids for $885.5 million in broadband subsidies from the Rural Digital Opportunity Fund (RDOF) auction, which were intended to help it connect more than 640,000 unserved locations in 35 states. At the time, the FCC cited Ookla data which showed Starlink’s broadband speeds were below the service benchmark set for its subsidies.
In its filing, however, Starlink claimed the FCC’s decision “rests on unsupported conjecture and outside-the-record information apparently cherry-picked from somewhere on the Internet.” It also accused the FCC of making the decision “in service to a clear bias towards fiber, rather than a merits-based decision to actually connect unserved Americans.”
Earlier this week Doug Dawson looked at implications of doing another RDOF auction and then succinctly detailed the reasons not to go down that road. To me it’s a matter of fixing up the house like you’re going to sell it or live in it? DO you go cheap and cheerful or built to last? Doug gives more detail…
But there are larger questions involved in having another reverse auction. The big problem with the RDOF reverse auction was not just that the FCC didn’t screen applicants first, as Carr and others have been suggesting. The fact is that a reverse auction is a dreadful mechanism for awarding broadband grant money. A reverse auction is always going to favor lower-cost technologies like fixed wireless over fiber – it’s almost impossible to weight different technologies for an auction in a neutral way. It doesn’t seem like a smart policy to give federal subsidies to technologies with a 10-year life versus funding infrastructure that might last a century.
Reverse auctions also take state and local governments out of the picture. The upcoming BEAD funding has stirred hundred of communities to get involved in the process of seeking faster broadband. I think it’s clear that communities care about which ISP will become the new monopoly broadband provider in rural areas. If the FCC has a strict screening process up front, then future RDOF funding will only go to ISPs blessed by the FCC – and that probably means the big ISPs. I would guess that the only folks possibly lobbying for a new round of RDOF are companies like Charter and the big telcos.
The mechanism of awarding grants by Census block created a disaster in numerous counties where RDOF was awarded in what is best described as swiss cheese serving areas. The helter-skelter nature of the RDOF coverage areas makes it harder for anybody else to put together a coherent business plan to serve the rest of the surrounding rural areas. In contrast, states have been doing broadband grants the right way by awarding money to coherent and contiguous serving areas that make sense for ISPs instead of the absolute mess created by the FCC.
A reverse auction also relies on having completely accurate broadband maps – and until the FCC makes ISPs report real speeds instead of marketing speeds, the maps are going to continue to be fantasy in a lot of places.
Finally, the reverse auction is a lazy technique that allows the FCC to hand out money without having to put in the hard effort to make sure that each award makes sense. Doing grants the right way requires people and processes that the FCC doesn’t have. But we now have a broadband office and staff in every state thanks to the BEAD funding. If the FCC is going to give out more rural broadband funding, it ought to run the money through the same state broadband offices that are handling the BEAD grants. These folks know local conditions and know the local ISPs. The FCC could set overall rules about how the funds can be used, but it should let the states pick grant winners based upon demonstrated need and a viable business plan.
Last week, I mentioned that 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.)
Last week, 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. So afar a Lawyer from Moss and Barnett sent a– Nondisclosure Agreement – Trade Secret Information for Richard J. Johnson relating to the Protective Order issued September 1, 2022 and enclosed a Certificate of Service. The document highlights the folks who will have access to the long form application.
Not much news but it looks like there is movement forward.
Blandin on Broadband 