Submit Your Challenges by September 27, 2013

            Yesterday, the FCC released a list of census blocks where price cap carriers intend to deploy broadband using funding from the Connect America Fund Phase I.  If you serve any of those census blocks, you can take advantage of the challenge process to avoid being overbuilt with CAF funds.  We are available to assist you in preparing and filing your challenge.

Challenges are due by September 27.  If you plan to file a challenge, start preparing now.

            Background.  The FCC created the Connect America Fund (“CAF”) as part of its efforts to overhaul the universal service system.  In the first two phases of CAF, the FCC will provide support to price cap carriers—large telcos like AT&T, Verizon, Windstream, CenturyLink, and FairPoint—that commit to deploying broadband-capable networks in unserved areas of the country.

How does the FCC define “unserved”?  For purposes of CAF Phase I, an area is treated as unserved if the current version of the National Broadband Map (with data from June 2012) shows the area as unserved by fixed Internet access with minimum speeds of 3 Mbps downstream and 768 kbps upstream.  Implicitly recognizing that some areas of the National Broadband Map are inaccurate or out-of-date, the FCC created a process to challenge an area’s designation as served or unserved.

Challenge Process.  Last week, price cap carriers made their elections to receive CAF Phase I support by providing a list of unserved census blocks where they propose to use the funds to deploy broadband.  If you serve any of those census blocks, you have until September 27, 2013 to challenge the list to avoid being overbuilt with CAF Phase I money.

Broadband providers challenging a census block’s designation as unserved must show that the block is in fact served by fixed Internet access with speeds of 3 Mbps/768 kbps or higher.  If you file a challenge, the price cap carrier will have until October 28 to respond to your challenge.  A few other important points to know about the challenge process:

Price cap carriers can challenge census blocks too:  A price cap carrier can challenge a block’s designation as served, arguing that no providers in the area offer broadband.  If the carrier wins its challenge, the carrier can receive funding for that census block.

If you serve a census block that a carrier challenges, you can respond by showing that you provide broadband in the census block.  You have until September 27 to respond.  In the FCC’s census block list, this type of challenge is designated by a “Y” in the fourth column.

The standard of proof:  The FCC will update a census block’s designation on the National Broadband Map if a broadband provider or price cap carrier shows that it is more likely than not that the challenged census block is incorrectly shown on the National Broadband Map.

More information:  The FCC orders describing the challenge process are available here and here.  Yesterday’s Public Notice is available here.

What to do now.  Challenges are due by September 27, 2013.  First, determine if you need to file a challenge.

Do you need to file a challenge?  The threshold question is:  Are any price cap carriers attempting to receive CAF Phase I money to build broadband in an area that my company already serves?

• If you have a current list of census blocks that you serve, review it closely and compare it with the list of census blocks where price cap carriers intend to deploy broadband using CAF money.  
• If you don’t have your service area organized by census block, contact your billing vendor to see if they can help you prepare a list of census blocks you serve.  
• If the FCC’s list shows a census block that your company serves with internet speeds of 3 Mbps/768 kbps or higher, consider filing a challenge.

How to challenge a census block’s designation as unserved:  Challengers must submit some form of documented evidence such as:

• An officer’s certification (signed under penalty of perjury) that the company offers 3 Mbps/768 kbps in the census block.  An officer’s certification should accompany other forms of documented evidence.
• Current customer billing records (redacted to protect customer privacy).
• Data from the updated National Broadband Map. (The NTIA began updating the Map in early August with data submitted as of December 31, 2012.)
• Form 477 data.  Make sure you filed Form 477 before September 3 (reporting data as of June 30, 2013).

Challenges may be submitted via the FCC’s Electronic Comment Filing System, available here.  Remember:  Challenges are due by September 27, 2013.  Start preparing your challenge now.  We are available to assist you in preparing and filing your challenge.

What if I don’t need to file a challenge?  Two important points to remember.  First, price cap carriers can change their deployment plans after their initial elections.  Even if your company is not affected by the initial elections, you’ll want to look out for changes that may affect your service areas.  The FCC will release a public notice with any updated plans.  If any change affects a census block you serve, you’ll have 45 days from the public notice date to notify the price cap carrier.

Second, the information above relates to CAF Phase I.  CAF Phase II will have a similar, but more streamlined, challenge process.  Challenges made in CAF Phase I will not carryover to CAF Phase II.  Stay tuned for more information on the Phase II challenge process.

If you have any questions about the challenge process or would like our assistance in preparing a challenge, please contact Jake Baldwin at (312) 372-3930 or jbaldwin@cinnamonmueller.com, Bruce Beard at (314) 394-1535 or bbeard@cinnamonmueller.com, or Elvis Stumbergs at (202) 872-6881 or estumbergs@cinnamonmueller.com.