Tag Archives: RDOF

Some RDOF awardees want more money or an out

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Ars Technica reports on RDOF winners who are asking for more money or an out…

A group of Internet service providers that won government grants are asking the Federal Communication Commission for more money or an “amnesty window” in which they could give up grants without penalty.

The ISPs were awarded grants to build broadband networks from the FCC’s Rural Digital Opportunity Fund (RDOF), which selected funding recipients in December 2020. A group calling itself the “Coalition of RDOF Winners” has been meeting with FCC officials about their requests for more money or an amnesty window, according to several filings submitted to the commission.

The group says broadband construction costs have soared since the grants were announced. They asked for extra money, quicker payments, relief from letter of credit requirements, or an amnesty window “that allows RDOF winners to relinquish all or part of their RDOF winning areas without forfeitures or other penalties if the Commission chooses not to make supplemental funds available or if the amount of supplemental funds the Commission does make available does not cover an RDOF Winner’s costs that exceed reasonable inflation,” a July 31 filing said.

A different group of ISPs urged the FCC to reject the request, saying that telcos that win grants by pledging to build networks at a low cost are “gaming” the system by seeking more money afterward.

So far, the FCC leadership seems reluctant to provide extra funding. The commission could issue fines to ISPs that default on grants—the FCC recently proposed $8.8 million in fines against 22 RDOF applicants for defaults.

The members of the coalition are unknown. In Minnesota, folks who watch broadband issues will remember that LTD Broadband was initially awarded the opportunity to apply for $1.3 billion but in the end, the FCC did not authorize the grants. During the time when LTD has been awarded the opportunity and was then not given the award many Minnesota communities were stuck in a limbo, unable to apply for other funding and often not certain about the future of LTD Broadband. Sounds like other communities mayb be in a similar position.

MN PUC is receiving comments on LTD Broadband’s Designation as an ETC: today’s says cancel designation

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Last week, I mentioned that the Minnesota PUC was looking for comments on the Petition of LTD Broadband LLC for Designation as an ETC. Today, I see that they got a comment…

 

A message from Brad Gustafson:

LTD’s RDOF award should be fully cancelled. This award has prevented local service providers from moving forward with local grants to distribute fiber. LTD does not have the knowledge of what it takes to build in our region with the amount of rock we have. They can not build for what they said they can. If they are allowed to move forward, the projects, if they ever start, will fail. It will also prevent local providers from expanding their services. Those residents then must wait the 10 years LTD would have to build out the region. I strongly feel LTD will not and cannot deliver on what they promise.

I am torn between posting these as I get them or as they come in. I think I will post as they come in but perhaps compile them all once the date for comment has passed (Aug 11) if there has been a big response.

Looking at LTD Broadband. MN PUC makes decision that could speed resolution

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I have been tracking the saga of MN Public Utility Commission (PUC) investigation into LTD Broadband. Here’s a 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. Earlier, 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. IN early May, several sides of the issue chimed in with opinions.

And here’s the latest news from the PUC (as of July 5, 2023)…

On January 18, 2023, these proceedings were stayed pending a ruling by the Federal Communications Commission (FCC) on LTD’s appeal of the denial of its Rural Digital Opportunity Fund (RDOF) long-form application. 1

On March 29, 2023, Petitioners filed a Motion to Suspend ETC Designation (Motion to Suspend) and a Motion to Certify the Stay Order and the Motion to Suspend. Commerce filed a response to Petitioners’ Motion to Certify on April 12, 2023. The OAG filed a Response to the Motion to Suspend and Motion to Certify on April 12, 2023. LTD filed a Response in Opposition to the Motion to Certify on April 12, 2023, in addition to a letter requesting additional time to respond to the Motion to Suspend if said Motion is certified to the Commission. The Administrative Law Judge declines to act on LTD’s request as it is not ripe until the Motion to Certify is granted.

Based upon the submissions of counsel and the hearing record, IT IS HEREBY ORDERED THAT:

1.Petitioners’ Motion to Certify is GRANTED.
2. The Administrative Law Judge hereby certifies the Stay Order and the Motion to Suspend to the Commission.
3. These Contested Case proceedings are STAYED pending the Commission’s ruling on the Stay Order and the Motion to Suspend.

The document outlines the players and the issues in some detail. Here’s the conclusion…

As to the Stay Order, a review of the factors compels certification. By definition, a review of a stay order is a controlling matter of law and would materially speed up the ultimate termination of the hearing. Here, it also allows the Commission to formally consider the effects of the FCC’s denial of LTD’s long-form application on this proceeding.

When considering whether to certify a pending motion, the administrative law judge will consider the factors listed in the rule, but “especially weighty are considerations of timeliness, agency expertise, and the nature of the issue involved.”25 All those factors strongly favor certifying the Motion to Suspend. Certification would lead to a quicker resolution of the issues, the issues are of import, and they are squarely within the Commission’s expertise. For all the reasons detailed above, Petitioners’ Motion to Certify the Stay Order and Motion to Suspend is GRANTED.

Forget RDOF – give RDOF money to the State Broadband Offices

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Doug Dawson reports on the state of RDOF…

The FCC originally budgeted $20.4 billion dollars for the RDOF subsidy program to be spent over ten years. The original RDOF reverse auction offered $16 billion in subsidies. But in a story that is now well known, some entities bid RDOF markets down to ridiculously low subsidy levels, and only $9.4 billion was claimed in the auction. $2.8 billion of this funding ended up in default, including some of the bidders who had driven the prices so low.

That means that only $6.4 billion of the original $20.4 billion has been allocated. The question I’m asking today is what the FCC will do with the remaining $14 billion.

There were some high points and some low points…

To be fair, the RDOF is doing some good things. A lot of electric coops, telephone coops, telephone companies, and independent fiber overbuilders are building networks using the RDOF subsidy as the basis for getting funding. Charter and a few other larger ISPs are building networks using the RDOF funding.

But the RDOF awards also left behind a lot of messes. First, it took too long to eliminate the default bidders. Areas claimed by these bidders were off-limits to other federal grants and most state grants – many of these areas would have fiber today had they not been in RDOF limbo.

In Minnesota the low point when LTD Broadband was qualified and then disqualified from the bids. It meant large swaths of Minnesota were ineligible for other grants and are still waiting. And in the end, I’ve heard many people say, better to leave the money on the shelf than leave these communities in limbo even longer or worse, come out the other end without better broadband. Doug has a solution that I hope folks will hear…

Now that the states have broadband offices, the easiest way for the states to award the remaining RDOF billions would be to let state broadband offices do the heavy lifting. It would be one more tool for state broadband offices – that hopefully would not follow the complicated BEAD rules. The worst possible way to use the money would be for the FCC to take some easy path to shovel the money out the door again – please don’t give us RDOF II!

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.

 

The US needs a National Broadband Strategy – so said GAO study

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The study isn’t new but it was discussed Before the Subcommittee on Oversight and Investigations, Committee on Energy and Commerce, House of Representatives. I’ve tried to pull out the highest-level points. The need for better coordination and collaboration has never been higher as so much gets poured into rural broadband. The amount is not enough to get everyone covered, but certainly there are ways to maximize investment…

How much federal money has been invested and how much to come?

Our prior work found that federal investments from 2009 through 2017 totaled nearly $50 billion for broadband infrastructure in unserved or underserved areas. Starting in 2020, COVID-19 relief laws, along with regular appropriations, have provided an infusion of funding for broadband, including for many new broadband programs. Most recently, the Infrastructure Investment and Jobs Act appropriated nearly $65 billion for new and existing broadband programs. Further, the President has set a goal of universal American access to broadband by 2030.

How many programs are there?

We identified at least 133 funding programs—administered across 15 agencies—that can be used to support broadband access, including support for planning and deploying infrastructure, making service affordable, providing devices, and building digital skills. Some of these programs support broadband as their main purpose or one possible purpose, and others can be used for multiple purposes related to broadband. Eligible recipients for these programs range widely and include: internet providers; other private sector entities; nonprofits; tribal, state, and local governments; education agencies; and healthcare providers. Through these programs, federal agencies invested at least $44 billion in broadband-support activities from fiscal years 2015–2020, according to our analysis of agencies’ data.6 See our report for a list of broadband funding award information by agency and program.

Having numerous broadband programs can be helpful to address a multifaceted issue like broadband access, but this fragmentation can also mean that programs overlap and lead to the risk of duplicative support.

What are the challenges in accessing funds?

  • Identifying relevant programs
  • Administrative complexity
  • Complementary use of programs
  • Unintended results of program restrictions

Is there a plan?

…there is no current overarching strategy that synchronizes these efforts and establishes agency accountability. FCC developed the National Broadband Plan in 2010, and while FCC officials said they still consider the plan relevant as a framework for modernizing policies, they acknowledge it is now outdated.14 Furthermore, officials from several agencies told us that no national broadband strategy of this scope is currently in effect.

What are the recommendations?

In our May 2022 report, we recommended that NTIA consult with relevant agencies, as well as the Office of Management and Budget and other White House offices, and present to Congress a report that identifies the key statutory provisions that limit the beneficial alignment of broadband programs and offers legislative proposals to address the limitations, as appropriate. At the time we issued the report, the Department of Commerce agreed with our recommendation. Since then, NTIA told us it plans to solicit input about statutory limitations and legislative proposals from relevant agencies during interagency broadband meetings. NTIA also told us that it plans to provide a report to Congress by May 31, 2026 that will, among other things, identify barriers and statutory limitations that limit the beneficial alignment of broadband programs and offer potential legislative changes, as appropriate.19

We also recommended that the Executive Office of the President develop and implement a national broadband strategy and that it include a national strategy for closing the gap in broadband access on tribal lands.20 Both strategies should include clear roles, goals, objectives, and performance measures to support better management of fragmented, overlapping federal broadband programs and synchronize coordination efforts. At the time of our report, the Executive Office of the President was considering if a national strategy was needed. As of this testimony, it has not developed a national strategy for broadband. However, the National Economic Council said it is prioritizing broadband coordination, including by chairing a leadership committee attended by key agency heads and convening a broadband working group that coordinates interagency efforts.

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.