Connect America Fund Universal Service Reform-Mobility Fund, 44241-44245 [2018-18804]
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Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Rules and Regulations
PART 206—FEDERAL DISASTER
ASSISTANCE
1. The authority citation for part 206
is revised to read as follows:
■
Authority: Robert T. Stafford Disaster
Relief and Emergency Assistance Act, 42
U.S.C. 5121 through 5207; Homeland
Security Act of 2002, 6 U.S.C. 101 et seq.;
Department of Homeland Security Delegation
9001.1.
§ 206.210
■
[Removed and Reserved]
2. Remove § 206.210.
Dated: August 23, 2018.
Brock Long,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2018–18796 Filed 8–29–18; 8:45 am]
BILLING CODE 9110–11–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 54
[WC Docket No. 10–90, WT Docket No. 10–
208; FCC 18–124]
Connect America Fund Universal
Service Reform—Mobility Fund
Federal Communications
Commission.
ACTION: Final action; extension of filing
period; petitions for reconsideration.
AGENCY:
This document addresses two
applications for review regarding the
procedures and parameters of the
Mobility Fund II challenge process and
grant in part and deny in part a related
extension request.
DATES: This Order is effective August
30, 2018. The window for filing
challenges to ineligible areas extended
to November 26, 2018.
FOR FURTHER INFORMATION CONTACT:
Wireless Telecommunications Bureau,
Auctions and Spectrum Access
Division, Audra Hale-Maddox, at (202)
418–0660.
SUPPLEMENTARY INFORMATION: This is a
summary of the final actions in the
Federal Communications Commission
(‘‘Commission’’) Order, Notice of
Proposed Rulemaking and
Memorandum Opinion and Order
(Combined Order), FCC 18–124,
adopted on August 14, 2018, and
released on August 21, 2018. The
complete text of this document is
available for public inspection and
copying from 8 a.m. to 4:30 p.m. Eastern
Time (ET) Monday through Thursday or
from 8 a.m. to 11:30 a.m. ET on Fridays
in the FCC Reference Information
Center, 445 12th Street SW, Room CY–
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SUMMARY:
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A257, Washington, DC 20554. The
complete text is also available on the
Commission’s website at https://
wireless.fcc.gov, or by using the search
function on the ECFS web page at
https://www.fcc.gov/cgb/ecfs/.
Alternative formats are available to
persons with disabilities by sending an
email to fcc504@fcc.gov or by calling the
Consumer & Governmental Affairs
Bureau at (202) 418–0530 (voice), (202)
418–0432 (TTY).
I. Synposis
On August 21, 2018, the Commission
released an ‘‘Order, Notice of Proposed
Rulemaking, and Memorandum Opinion
and Order’’ (August 21 Order). The
Commission separately published the
proposed modifications to the speed test
data specifications regarding the
relevant timeframes for valid speed tests
for the August 21 Order elsewhere in
this issue of the Federal Register. In the
August 21 Order, the Commission
extended the previously announced
deadline for the close of the Mobility
Fund Phase II (MF–II) challenge
window by an additional 90 days.
Challengers were given until November
26, 2018, to submit speed test data in
support of a challenge. The Commission
adopted this extension to ensure that
interested parties can initiate and
submit speed test data for areas they
wish to challenge. In addition, given
this extension, the Commission
proposed to make modifications to the
speed test data specifications regarding
the relevant timeframes for valid speed
tests. The Commission also addressed
two applications for review regarding
the procedures and parameters of the
MF–II challenge process and granted in
part and denied in part a related
extension request.
II. Order Extending the Challenge
Window
1. In February 2017, the Commission
adopted rules to move forward on a
reverse auction that will direct up to
$4.53 billion of MF–II support over ten
years to providers in geographic areas
lacking unsubsidized 4G Long Term
Evolution (LTE) services. The
Commission also determined that it
would compile a list of areas that were
presumptively eligible for MF–II
support and provide a limited
timeframe before the auction during
which interested parties could challenge
areas that were not listed as
presumptively eligible (i.e.,
‘‘presumptively ineligible’’ areas). In
February 2018, the Rural Broadband
Auctions Task Force, in conjunction
with the Wireless Telecommunications
Bureau and the Wireline Competition
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44241
Bureau (the Bureaus), published a map
of areas presumptively eligible for MF–
II support based on a one-time
collection by the Commission of 4G LTE
coverage data and subsidy data from the
Universal Service Administrative
Company (USAC).
2. The MF–II Challenge Process Order,
82 FR 42473, September 8, 2017,
established the framework for a robust
challenge process that will refine the
map of areas presumptively eligible to
receive MF–II support. This challenge
process is designed to efficiently resolve
disputes about areas that are
presumptively ineligible through the
submission, analysis, and validation of
mobile network speed test data. The
Commission initially established a 150day challenge window for interested
parties to contest the initial
determination of areas deemed
presumptively ineligible for MF–II
support. The challenge window opened
on March 29, 2018, and it was
scheduled to close on August 27, 2018.
3. As part of the challenge process
framework, the Commission established
various parameters for the acceptance of
speed test data, including that such data
would only be accepted if they were
collected within six months of the
scheduled close of the challenge
window. That six-month period
commenced on February 27, 2018. After
the close of the challenge window, a
respondent (i.e., a ‘‘challenged party’’)
will have the opportunity to respond to
challenges by submitting its own speed
test data or certain technical
information that is probative of the
validity of the challenger’s speed tests.
Speed test data submitted by
respondents is subject to the same
standards and requirements applicable
to challengers, except that the
Commission established in the MF–II
Challenge Process Order that it would
only accept data submitted by a
respondent that was collected within six
months of the scheduled close of the
response window.
4. After the Commission adopted the
timeframe for the challenge window, the
Rural Wireless Association (RWA)
submitted data regarding estimated
burdens of the challenge process,
including specific estimates of the
amount of time required to conduct
speed tests in certain areas.
5. The Commission extended the
previously established deadline for
challengers to submit data in the
challenge process and provide an
additional 90 days, until November 26,
2018, for the submission and
certification of challenges. The
Commission direct USAC to implement
this change in the challenge portal.
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size to one-quarter mile. On April 30,
2018, the Bureaus, on their own motion,
adopted an order on reconsideration
that increased the buffer size to 400
meters. AT&T, the Competitive Carriers
Association (CCA), and U.S. Cellular
filed replies to Verizon’s opposition to
RWA’s AFR, in which they supported
the Bureaus’ decision to implement a
400-meter buffer radius. On the issue of
the grid cell size, AT&T argued that the
grid cells should not be resized. CCA
and U.S. Cellular argued that the grid
cells should be resized.
10. On June 21, 2018, Verizon filed an
application for review of the Bureaus’
order on reconsideration in which it
sought reinstatement of the 250-meter
buffer radius. NTCA, Smith Bagley,
RWA, and Panhandle
Telecommunication opposed Verizon’s
application for review and argued that
the 400-meter buffer should be
maintained. CCA filed a reply to the
oppositions supporting the 400-meter
buffer radius, and Verizon filed a reply
to the oppositions restating its support
III. Memorandum Opinion and Order
for a 250-meter buffer radius.
Addressing Applications for Review
11. RWA’s application for review
From RWA and Verizon
seeks review of the Bureaus’ procedures
7. In the MF–II Challenge Process
adopted in the MF–II Challenge Process
Procedures Public Notice, 83 FR 13417,
Procedures Public Notice establishing a
March 29, 2018, the Bureaus
one kilometer grid cell size and a onedetermined, consistent with the
quarter kilometer ‘‘buffer’’ for assessing
Commission’s decision in the MF–II
challenges to areas deemed ineligible for
Challenge Process Order, that speed test MF–II support. RWA advocates instead
measurements submitted to support or
for a one square mile grid size and a
respond to a challenge to an area that
one-quarter mile buffer. It argues that
initially is deemed ineligible for MF–II
roads in certain areas of rural America
support must be no more than one-half
have been laid out on square mile grids
of one kilometer apart from one another. rather than square kilometer grids,
The Bureaus also decided to assess
which according to RWA means that
challenges using a uniform grid with
using a square kilometer grid would
cells of one square kilometer and a
yield more grid cells that cannot be fully
‘‘buffer’’ with a radius equal to one-half
tested by drive testing. RWA argues
of the maximum distance parameter,
further that a 250-meter buffer for each
i.e., one-quarter of one kilometer (250
test point would require needlessly
meters).
dense testing points which would
8. On March 21, 2018, RWA
increase the cost and technical difficulty
submitted data regarding the burden a
of submitting challenges.
challenger would experience as a result
12. RWA’s subsequent ex parte on
April 30, 2018, included additional
of these decisions. On March 29, 2018,
information. In Alabama and the
RWA filed an application for review in
Oklahoma Panhandle, RWA found that
which it argued that the speed test
increasing the buffer to 400 meters,
buffer radius size should have been set
while maintaining the one square
at one-quarter mile and that the size of
the uniform grid cells should have been kilometer grid cell size, would result in
a significant reduction of the percentage
one square mile. One party—Verizon—
of cells for which a challenger could not
opposed RWA’s application for review
and argued that the grid cell size and the fully test by drive testing. Indeed, RWA
found that changing the buffer size
buffer radius should not be increased.
would provide better results in Alabama
9. On April 30, 2018, RWA filed an
ex parte letter indicating that increasing than if both the buffer and grid cell size
were increased. In the area in Alabama
the speed test buffer to 400 meters
that RWA studied, the number of grid
(approximately one-quarter mile) and
cells requiring some off-road testing
maintaining a grid cell size of one
dropped by 26 percentage points when
square kilometer would yield largely
similar results to increasing the grid cell increasing the buffer to 400 meters,
versus a decrease of 16 percentage
size to one square mile and the buffer
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6. In light of new estimates and again
out of an abundance of caution, the
Commission concluded that while a
150-day challenge window may still be
sufficient for parties to conduct speed
tests and submit challenges, providing
an additional 90 days for this window
will ensure that all interested parties
have ample opportunity to conduct
speed tests and submit speed test data
for the areas they wish to challenge.
Providing this additional time, for a
total challenge window of 240 days,
ultimately should result in a more
efficient allocation of support funds,
while still advancing the overall auction
process to a timely conclusion, directing
its limited funds to the unserved areas
most in need, and completing the phase
down of duplicative support that directs
subsidies to areas already served by
unsubsidized providers. Accordingly,
the Commission makes a procedural
change to the challenge process by
extending the deadline for filing
challenges to November 26, 2018.
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points when increasing buffer size to
400 meters and increasing the grid cell
size to one square mile.
13. In the Oklahoma Panhandle, RWA
found that the results were largely the
same if the buffer size was increased,
regardless of whether the grid cell size
was also increased. In both cases, RWA
found that the grid cells requiring some
off-road testing would decrease by
nearly 40 percentage points, from 82.3
percent to either 44.7 percent (buffer
size alone) or 43.6 percent (buffer and
grid cell size). Summarizing its analysis,
RWA stated that it ‘‘recognizes the
Bureaus’ desire to utilize a square
kilometer grid cell scheme and believes
that the use of a one square kilometer
grid cell and accompanying longer
buffer radius will give prospective
challengers the ability to more
meaningfully participate in the MF–II
challenge process.’’
14. U.S. Cellular supports RWA’s
AFR. The company estimated that the
one-kilometer grid cell size in
conjunction with the original 250-meter
buffer radius size would make mounting
a challenge by drive-testing alone
impossible for as much as 78 percent of
the areas involved.
15. After considering the data RWA
filed in its March 21, 2018 ex parte
submission, the Bureaus decided to
expand the buffer surrounding each test
point from 250 meters to 400 meters
(approximately equivalent to onequarter mile), explaining that the new
data persuaded them that the previous
buffer size and resulting number of test
points required may be unduly
burdensome to some challengers. The
new evidence illustrated both the
considerable increase in area that could
be covered by drive-testing and the
decrease in the number of speed test
measurements typically needed per grid
cell resulting from using a buffer radius
of one-quarter of one mile rather than a
radius of one-quarter of one kilometer.
These modified parameters decreased
the burden on challengers by reducing
the number of speed test measurements
needed to file a successful challenge.
Accordingly, because the Bureaus have
already effectively granted RWA’s
request regarding buffer size, the
Commission dismiss RWA’s application
for review on these grounds as moot.
16. In contrast, RWA has not shown
that changing the grid cell size is
warranted. The Commission finds that
the expansion of the speed test point
buffer to 400 meters (as supported by
numerous commenters) while retaining
the square kilometer grid cell size
properly balances the measurements
needed for meaningful testing with the
burdens placed on challengers and
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challenged parties. This decision also
furthers the Commission’s goals of
moving expeditiously to conduct the
MF–II auction and of administrative
efficiency. The Commission and the
Bureaus have carefully considered the
burdens on entities that choose to
submit challenges and entities that
choose to respond to challenges, the
goals of administrative efficiency, and
the record evidence.
17. As Verizon and AT&T noted, to
implement RWA’s proposed resizing of
the grid, ‘‘the Commission would have
to reprocess the carrier coverage maps
using a one square mile grid, generate a
new map of presumptively eligible
areas, and finally direct USAC to modify
its challenge process software to accept
challenges based on one square mile
grid cells.’’ AT&T argues that RWA’s
proposed reconfiguration of the grid
cells ‘‘would be too disruptive’’ and
would ‘‘significantly delay the start’’ of
the MF–II auction. Similarly, Verizon
argues that ‘‘stopping the current
challenge process and then starting over
with a one square mile grid would
extend the challenge process—and
delay the start of the Mobility Fund
auction—by many months.’’
18. Moreover, as AT&T notes, the
benefit sought by RWA—an increase in
the percentage of the area that can be
drive tested—‘‘can effectively be
addressed by modifying the buffer
radius, as the Bureaus recently did, on
their own motion.’’ As RWA admits in
its various submissions, the buffer size
is the key parameter affecting the
percentage of cells that can be drive
tested and the change made to the buffer
size, by itself, would provide similar
results—in terms of the increase in the
percentage of cells that could be
challenged by drive testing—to
changing both the buffer size and the
grid cell size.
19. RWA, CCA, and U.S. Cellular
argue that the one square kilometer grid
cell size prevents challenges in less
accessible areas. The Commission
disagrees. Nothing in the challenge
process framework prevents challenges
in less accessible areas or in areas that
require some off-road testing. As shown
in RWA’s own submissions, the buffer
radius is the key parameter affecting the
percentage of area that can be fully
tested by drive testing, and increasing
the grid cell size in some areas increases
the percentage of cells that require off
road testing in certain areas. Indeed,
U.S. Cellular concedes that the Bureau’s
increase of the buffer radius to 400
meters undermines its argument that it
cannot use drive testing for much of the
MF–II challenge process.
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20. The Commission appropriately
balanced the competing interests of
challengers and challenged parties in
this proceeding with the need to
efficiently administer the challenge
process. Roads do not match perfectly
with any uniform grid, regardless of the
size of the grid cell. The Commission
decided to conduct an auction based
upon land area, not road miles, because
of limited universal service funds on the
unserved areas where people live, work,
and travel. No commenter sought
reconsideration of that decision.
Similarly, the Commission decided to
not make special accommodations for
less accessible areas, and no commenter
sought reconsideration of that decision.
Any ineligible area may be challenged,
and it is incumbent upon challengers
and challenged parties to collect the
required speed test points to
substantiate or rebut a challenge.
Indeed, as of July 31, 2018, challengers
had already uploaded over 1.6 million
speed tests, with a significant number of
those tests taken in primarily rural
areas. Accordingly, the Commission
denies RWA’s application for review on
the grid cell size.
21. RWA submitted an extension
request along with its application for
review, requesting that the challenge
window be open for 150 days after its
application for review was addressed.
The Commission granted a 90-day
extension of the challenge window,
which will extend the challenge
window through November 26, 2018.
This extension will mean that the
challenge window now provides 200
days after the Order on Reconsideration
for submitting challenges under
parameters that largely address RWA’s
concerns regarding the percentage of
areas that could be fully tested by drive
testing. The Commission thus has
already effectively granted RWA’s
extension request insofar as it sought at
least 150 days for the challenge window
after the modifications to the challenge
process that it sought were
implemented.
22. RWA has not demonstrated that a
further extension of the window for
filing challenges to areas deemed
ineligible for MF–II support is in the
public interest. The window has been
extended to now provide a window of
200 days with parameters that largely
address RWA’s concerns, thus providing
50 more days than RWA requested.
Although parties may disagree with the
specific rules promulgated to achieve
the purposes of MF–II, the mere filing
of an application for review does not
alter the effective date of those rules; a
party is not entitled to an extension of
the challenge window on the hope that
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the Commission will act favorably on its
application for review. Moreover, the
Bureaus have already acted to make it
easier to conduct speed tests. Thus, all
affected parties must comply with the
rules and the requirements of the
challenge process, should they choose
to participate in it, absent Commission
grant of a stay (which RWA did not
request). RWA has not cited any
unanticipated circumstances that might
explain its members’ need for an
extension nor provided a reasonable
justification for granting it.
23. Moreover, granting a further
extension as requested by RWA would
work at cross-purposes with the goals of
the MF–II proceeding. In the MF–II
Report and Order, 82 FR 15422, March
28, 2017, the Commission stated that the
purpose of MF–II is ‘‘to allocate up to
$4.53 billion . . . to advance the
deployment of 4G LTE service to areas
that are so costly that the private sector
has not yet deployed there and to
preserve such service where it might not
otherwise exist.’’ The Commission also
indicated that MF–II would redirect
legacy subsidies away from areas that
are fully covered by unsubsidized 4G
LTE service. Further extension of the
challenge window undermines the
purpose of the MF–II proceeding by
delaying the conclusion of the challenge
process, the release of the final eligible
areas map, the commencement of the
MF–II auction, and the refocusing of its
limited universal service funds to the
primarily rural areas of the country that
need the funds the most. Under these
circumstances, the Commission finds
that the now extended window will
provide eligible parties with sufficient
time to prepare and submit any
challenges they intend to file and that
RWA has failed to demonstrate that a
further extension of the challenge
window would serve the public interest.
24. Accordingly, RWA’s extension
request is granted in part and is
otherwise denied.
25. Verizon’s application for review
requests that the Commission vacate the
Bureaus’ decision to increase the
maximum speed test distance parameter
from 500 meters to 800 meters and the
associated speed test buffer radius from
250 meters to 400 meters. The thrust of
Verizon’s application for review is that
the Bureaus have shifted the balance of
the MF–II challenge process too far in
favor of challengers. The outcome,
Verizon argues, will be to ‘‘allow
challengers to successfully challenge a
one square kilometer area with as few as
two speed test points’’ and will ‘‘result
in widespread false positives, i.e.,
presumptively successful challenges of
large areas that are in fact well-served
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by 4G LTE, particularly if providers
cherry-pick test points with an aim of
minimizing actual coverage.’’ Several
carriers and trade associations filed
oppositions to Verizon’s arguments; no
filers supported the Verizon AFR. The
Commission rejects Verizon’s
arguments, agrees with the unanimous
opposition to Verizon’s AFR, and
affirms the decision of the Bureaus to
expand the maximum distance between
speed tests to 800 meters and the buffer
radius of speed tests to 400 meters.
26. Verizon argues that the increased
speed test buffer radius allows
challengers to ‘‘cherry-pick’’ speed test
data to challenge the unsubsidized
providers’ coverage maps. The
Commission disagrees. The Bureaus did
not modify the other numerous and
rigorous challenge process requirements
in the MF–II Challenge Process
Procedures Public Notice. Challengers
must submit not only speed test data
demonstrating throughput below 5
Mbps, but also data collected
demonstrating speeds equal to or greater
than 5 Mbps. Thus, in grid cells well
served by existing 4G LTE, the data
submitted to the challenge portal are
likely to reflect speed test results
favoring incumbents. Moreover,
contrary to Verizon’s argument,
providing only two speed tests in a grid
cell with high quality 4G LTE service
will likely not be sufficient to
successfully challenge the grid cell.
Rather, the combined buffer areas of
sub-5 Mbps speed tests in or adjacent to
challengeable grid cells must cover 75
percent of the challengeable areas of all
carriers in the grid cell. Further, even
where combined testing points do cover
75 percent of the challengeable areas in
a grid cell, the resulting presumptive
challenge simply shifts the burden of
production (though not the burden of
persuasion) to the challenged carrier to
produce evidence rebutting the
presumption. A presumptive challenge
does not automatically result in any
change to eligibility; final adjudications
of eligibility will occur after challenged
parties have an opportunity to respond
to challenges.
27. Verizon also argues that increasing
the speed test buffer radius to 400
meters will increase the number of
presumptively successful challenges in
areas already served by 4G LTE—which
Verizon terms ‘‘false positives’’—which
will degrade the accuracy of the MF–II
eligibility map. The Commission
disagrees. The risk of so-called ‘‘false
positives’’ from a 400-meter buffer is
adequately addressed by the challenge
process framework that the Commission
adopted. While increasing the buffer
radius to 400 meters can make
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challenges more feasible in areas where
roads are less dense, it does not lead to
the conclusion that more challenges will
cause the accuracy of the final auction
eligibility map to suffer. Verizon’s
argument appears to conflate a
presumptive challenge with the final
disposition of a challenge. Challenged
carriers will have an opportunity to
provide evidence refuting a challenge in
any challenged grid cell. And because
speed test points submitted by
challenged parties are buffered by the
same distance as points submitted by
challengers, increasing the buffer radius
increases the ability of challenged
carriers to respond to challenges.
28. The Bureaus’ increase in the
number of grid cells that may be fully
tested by drive testing does not alter the
network performance that is being
tested, nor will it necessarily result in
an increase in the number of valid
challenges. Indeed, as several entities
have noted, more opportunities for
challengers to participate in the
challenge process should improve the
accuracy of the final eligibility map,
insofar as it subjects more grid cells to
confirmation testing. The Commission
likewise agree with NTCA and SBI that
the potential risks associated with
increasing the buffer size for the
challenge process to 400 meters—i.e.,
increased availability of challenges—are
outweighed by the benefits of ensuring,
through a process that does not unduly
deter challenges, that all areas that lack
unsubsidized 4G LTE mobile service are
designated eligible for the auction and
have an opportunity to compete for MF–
II support.
29. The Commission also rejected
Verizon’s argument that the Bureaus
exceeded their authority by increasing
the maximum speed test distance
parameter and buffer radius. In the MF–
II Challenge Process Order, the
Commission directed the Bureaus to
establish the challenge process speed
testing parameters. Specifically, the
Commission directed Bureaus to
establish a maximum distance between
tests of up to one mile and to set a
corresponding buffer around tests to
balance the benefits to the MF–II
process, the burdens on small carriers,
and an administratively efficient
adjudication of challenges regarding
network deployment. The Bureaus
could consider any maximum speed test
distance parameter and buffer within
the established one mile range,
including the 800-meter distance
parameter (approximately one-half of
one mile) and corresponding 400-meter
buffer radius selected. Thus, the
Bureaus were well within their
authority to consider newly available
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record evidence that supported their
reconsideration of the maximum speed
test distance and buffer radius. In any
event, this argument is moot since the
Commission has reviewed and upheld
the Bureaus’ decision.
30. Although Verizon argues that
customer experience is likely to vary
over those distances due to signal
attenuation, and terrain and clutter
variations, the Commission notes that
the MF–II Challenge Process Order did
not call for speed tests that mirror every
customer experience within a speed
tested area, but rather a reasonable
balance of administrative and private
burdens and costs in a tested area. The
800-meter distance parameter and 400meter buffer radius reflect such a
balance. The parameters selected by the
Bureaus also has received widespread
support from other parties participating
in this proceeding. All four of the
parties opposing Verizon’s AFR, as well
as a reply to the oppositions, supported
expanding the buffer radius and
maximum speed test distance.
Similarly, in filings submitted in
response to RWA’s AFR, AT&T, CCA,
and U.S. Cellular all supported
expanding the buffer radius. The
Commission further note that, while
Verizon objects to the Bureaus’ reliance
on RWA’s evidence, it did not cite any
other record evidence, new or
otherwise, that undermines the Bureaus’
decision.
31. For all these reasons, the
Commission denies Verizon’s
application for review.
IV. Ordering Clauses
32. Accordingly, it is ordered that
pursuant to the authority contained in
sections 1, 4(i) and (j), 254, 303(r), and
332 of the Communications Act of 1934,
as amended, and section 706 of the
Telecommunications Act of 1996, 47
U.S.C. 151, 154(i), (j), 254, 303(r), 332,
1302, and sections 1.1, 1.115, 1.412, and
1.427 of the Commission’s rules, 47 CFR
1.1, 1.115, 1.412, 1.427, this Order and
Memorandum Opinion and Order is
adopted.
33. It is further ordered that, pursuant
to the authority contained in sections 1,
4(i) and (j), 254, 303(r), and 332 of the
Communications Act of 1934, as
amended, and section 706 of the
Telecommunications Act of 1996, 47
U.S.C. 151, 154(i), (j), 254, 303(r), 332,
1302, and sections 1.1 and 1.412 of the
Commission’s rules, 47 CFR 1.1, 1.412,
the deadline for challengers to submit
information in connection with the MF–
II challenge process is extended, to the
extent described herein.
34. It is further ordered that, pursuant
to authority contained in sections 4(i),
E:\FR\FM\30AUR1.SGM
30AUR1
Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Rules and Regulations
254, 303(r), and 332 of the
Communications Act of 1934, as
amended, and section 706 of the
Telecommunications Act of 1996, 47
U.S.C. 154(i), 254, 303(r), 332, 1302, and
section 1.46 of the Commission’s rules,
47 CFR 1.46, RWA’s Request for
Extension of Challenge Window is
granted in part, and is denied in part,
to the extent described herein.
35. It is further ordered that, pursuant
to section 5(c)(5) of the Communications
Act of 1934, as amended, 47 U.S.C.
155(c)(5), and section 1.115(g) of the
Commission’s rules, 47 CFR 1.115(g),
the Application for Review filed by the
Rural Wireless Association, Inc. on
March 29, 2018, is granted in part,
dismissed as moot in part, and denied
in part to the extent described herein.
36. It is further ordered that, pursuant
to section 5(c)(5) of the Communications
Act of 1934, as amended, 47 U.S.C.
155(c)(5), and section 1.115(g) of the
Commission’s rules, 47 CFR 1.115(g),
the Application for Review filed by
Verizon Communications, Inc. on June
22, 2018, is denied.
37. It is further ordered that, pursuant
to § 1.427(b) of the Commission’s rules,
47 CFR 1.427(b), this Order shall be
effective upon its publication in the
Federal Register.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2018–18804 Filed 8–28–18; 11:15 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
Background
50 CFR Part 300
[Docket No. 180209155–8750–03]
RIN 0648–BH77
International Fisheries; Western and
Central Pacific Fisheries for Highly
Migratory Species; Fishing Limits in
Purse Seine and Longline Fisheries,
Restrictions on the Use of Fish
Aggregating Devices in Purse Seine
Fisheries, and Transshipment
Prohibitions
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; date of effectiveness
for collection-of-information
requirements.
amozie on DSK3GDR082PROD with RULES
AGENCY:
NMFS announces approval by
the Office of Management and Budget
SUMMARY:
VerDate Sep<11>2014
16:35 Aug 29, 2018
(OMB) of a collection-of-information
requirement, which was contained in
regulations implementing fishing limits
in purse seine and longline fisheries,
and other restrictions, for U.S. vessels
used to fish for highly migratory species
in the western and central Pacific Ocean
(WCPO), in a final rule published on
July 18, 2018. The intent of this final
rule is to inform the public of the
effectiveness of the collection-ofinformation requirement associated
with daily purse seine fishing effort
reports included in the final rule.
DATES: This final rule is effective August
30, 2018. The amendment to 50 CFR
300.218(g), published at 83 FR 33851
(July 18, 2018), is effective on August
30, 2018.
ADDRESSES: Written comments
regarding burden-hour estimates or
other aspects of the collection-ofinformation requirements contained in
this final rule may be submitted to
Michael D. Tosatto, Regional
Administrator, NMFS, Pacific Islands
Regional Office (PIRO), 1845 Wasp
Blvd., Building 176, Honolulu, HI 96818
and by email to OIRA_Submission@
omb.eop.gov or fax to (202) 395–5806.
FOR FURTHER INFORMATION CONTACT:
Emily Crigler, NMFS, (808) 725–5036,
or emily.crigler@noaa.gov.
SUPPLEMENTARY INFORMATION: Under
authority of the Western and Central
Pacific Fisheries Convention
Implementation Act (WCPFC
Implementation Act; 16 U.S.C. 6901 et
seq.), NMFS implemented recent
decisions of the Commission for the
Conservation and Management of
Highly Migratory Fish Stocks in the
Western and Central Pacific Ocean.
Jkt 244001
NMFS issued a final rule to
implement specific fishing limits in
purse seine and longline fisheries, and
other restrictions, for U.S. vessels used
to fish for highly migratory species in
the WCPO. The final rule was published
in the Federal Register on July 18, 2018
(83 FR 33851) and the associated
regulations are found at 50 CFR part
300. The requirements of that final rule,
other than the collection-of-information
requirements associated with the daily
purse seine fishing effort reports, were
effective on July 18, 2018. OMB
approved the collection-of-information
requirements contained in the final rule
on August 3, 2018, under OMB Control
Number 0648–0649. Accordingly, this
final rule announces the approval and
effective date of the daily purse seine
fishing effort report requirements found
at 50 CFR 300.218(g).
PO 00000
Frm 00073
Fmt 4700
Sfmt 4700
44245
Classification
Administrative Procedure Act
Pursuant to 5 U.S.C. 553(b)(B), there
is good cause to waive prior notice and
opportunity for public comment for this
action because notice and comment
would be unnecessary and contrary to
the public interest. This action simply
provides notice of OMB’s approval of
the reporting requirements at issue,
which has already occurred, and
renders those requirements effective.
Thus this action does not involve any
further exercise of agency discretion by
NMFS or OMB. Moreover, the public
has had prior notice and the
opportunity to comment on the
collection-of-information requirement.
NMFS published a proposed rule
including the collection-of-information
requirement (83 FR 21748; published
May 10, 2018), with comments accepted
until May 25, 2018. The final rule (83
FR 33851; published July 18, 2018),
included a response to the one comment
received on the reporting requirements,
advised where to send any additional
comments on aspects of the collection of
information, and indicated that this
final rule would be published
announcing the effective date for the
revised reporting requirements upon
OMB approval.
There is good cause under 5 U.S.C.
553(d)(3) to waive the 30-day delay in
effective date for the collection-ofinformation requirement. The reporting
requirements included in this final rule
are intended to allow NMFS to obtain
better data, to more accurately track the
purse seine fishing effort limits,
specified at 50 CFR 300.223(a), and to
predict when a fishing effort limit is
expected to be reached with greater
certainty. Delaying the effective date of
this reporting requirement will limit
NMFS’s ability to accurately track
fishing effort and make timely
predictions of when effort limits may be
reached. Accordingly, waiver of the 30day delay in effective date is necessary
to comply with the requirements of the
WCPFC Implementation Act, the failure
of which would be contrary to the
public interest.
Executive Order 12866
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
Paperwork Reduction Act
This final rule contains a collectionof-information requirement subject to
the Paperwork Reduction Act (PRA) and
which OMB approved under OMB
Control Number 0648–0649 on August
3, 2018. Specifically, U.S. purse seine
E:\FR\FM\30AUR1.SGM
30AUR1
Agencies
[Federal Register Volume 83, Number 169 (Thursday, August 30, 2018)]
[Rules and Regulations]
[Pages 44241-44245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18804]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket No. 10-90, WT Docket No. 10-208; FCC 18-124]
Connect America Fund Universal Service Reform--Mobility Fund
AGENCY: Federal Communications Commission.
ACTION: Final action; extension of filing period; petitions for
reconsideration.
-----------------------------------------------------------------------
SUMMARY: This document addresses two applications for review regarding
the procedures and parameters of the Mobility Fund II challenge process
and grant in part and deny in part a related extension request.
DATES: This Order is effective August 30, 2018. The window for filing
challenges to ineligible areas extended to November 26, 2018.
FOR FURTHER INFORMATION CONTACT: Wireless Telecommunications Bureau,
Auctions and Spectrum Access Division, Audra Hale-Maddox, at (202) 418-
0660.
SUPPLEMENTARY INFORMATION: This is a summary of the final actions in
the Federal Communications Commission (``Commission'') Order, Notice of
Proposed Rulemaking and Memorandum Opinion and Order (Combined Order),
FCC 18-124, adopted on August 14, 2018, and released on August 21,
2018. The complete text of this document is available for public
inspection and copying from 8 a.m. to 4:30 p.m. Eastern Time (ET)
Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on Fridays in
the FCC Reference Information Center, 445 12th Street SW, Room CY-A257,
Washington, DC 20554. The complete text is also available on the
Commission's website at https://wireless.fcc.gov, or by using the search
function on the ECFS web page at https://www.fcc.gov/cgb/ecfs/.
Alternative formats are available to persons with disabilities by
sending an email to [email protected] or by calling the Consumer &
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
I. Synposis
On August 21, 2018, the Commission released an ``Order, Notice of
Proposed Rulemaking, and Memorandum Opinion and Order'' (August 21
Order). The Commission separately published the proposed modifications
to the speed test data specifications regarding the relevant timeframes
for valid speed tests for the August 21 Order elsewhere in this issue
of the Federal Register. In the August 21 Order, the Commission
extended the previously announced deadline for the close of the
Mobility Fund Phase II (MF-II) challenge window by an additional 90
days. Challengers were given until November 26, 2018, to submit speed
test data in support of a challenge. The Commission adopted this
extension to ensure that interested parties can initiate and submit
speed test data for areas they wish to challenge. In addition, given
this extension, the Commission proposed to make modifications to the
speed test data specifications regarding the relevant timeframes for
valid speed tests. The Commission also addressed two applications for
review regarding the procedures and parameters of the MF-II challenge
process and granted in part and denied in part a related extension
request.
II. Order Extending the Challenge Window
1. In February 2017, the Commission adopted rules to move forward
on a reverse auction that will direct up to $4.53 billion of MF-II
support over ten years to providers in geographic areas lacking
unsubsidized 4G Long Term Evolution (LTE) services. The Commission also
determined that it would compile a list of areas that were
presumptively eligible for MF-II support and provide a limited
timeframe before the auction during which interested parties could
challenge areas that were not listed as presumptively eligible (i.e.,
``presumptively ineligible'' areas). In February 2018, the Rural
Broadband Auctions Task Force, in conjunction with the Wireless
Telecommunications Bureau and the Wireline Competition Bureau (the
Bureaus), published a map of areas presumptively eligible for MF-II
support based on a one-time collection by the Commission of 4G LTE
coverage data and subsidy data from the Universal Service
Administrative Company (USAC).
2. The MF-II Challenge Process Order, 82 FR 42473, September 8,
2017, established the framework for a robust challenge process that
will refine the map of areas presumptively eligible to receive MF-II
support. This challenge process is designed to efficiently resolve
disputes about areas that are presumptively ineligible through the
submission, analysis, and validation of mobile network speed test data.
The Commission initially established a 150-day challenge window for
interested parties to contest the initial determination of areas deemed
presumptively ineligible for MF-II support. The challenge window opened
on March 29, 2018, and it was scheduled to close on August 27, 2018.
3. As part of the challenge process framework, the Commission
established various parameters for the acceptance of speed test data,
including that such data would only be accepted if they were collected
within six months of the scheduled close of the challenge window. That
six-month period commenced on February 27, 2018. After the close of the
challenge window, a respondent (i.e., a ``challenged party'') will have
the opportunity to respond to challenges by submitting its own speed
test data or certain technical information that is probative of the
validity of the challenger's speed tests. Speed test data submitted by
respondents is subject to the same standards and requirements
applicable to challengers, except that the Commission established in
the MF-II Challenge Process Order that it would only accept data
submitted by a respondent that was collected within six months of the
scheduled close of the response window.
4. After the Commission adopted the timeframe for the challenge
window, the Rural Wireless Association (RWA) submitted data regarding
estimated burdens of the challenge process, including specific
estimates of the amount of time required to conduct speed tests in
certain areas.
5. The Commission extended the previously established deadline for
challengers to submit data in the challenge process and provide an
additional 90 days, until November 26, 2018, for the submission and
certification of challenges. The Commission direct USAC to implement
this change in the challenge portal.
[[Page 44242]]
6. In light of new estimates and again out of an abundance of
caution, the Commission concluded that while a 150-day challenge window
may still be sufficient for parties to conduct speed tests and submit
challenges, providing an additional 90 days for this window will ensure
that all interested parties have ample opportunity to conduct speed
tests and submit speed test data for the areas they wish to challenge.
Providing this additional time, for a total challenge window of 240
days, ultimately should result in a more efficient allocation of
support funds, while still advancing the overall auction process to a
timely conclusion, directing its limited funds to the unserved areas
most in need, and completing the phase down of duplicative support that
directs subsidies to areas already served by unsubsidized providers.
Accordingly, the Commission makes a procedural change to the challenge
process by extending the deadline for filing challenges to November 26,
2018.
III. Memorandum Opinion and Order Addressing Applications for Review
From RWA and Verizon
7. In the MF-II Challenge Process Procedures Public Notice, 83 FR
13417, March 29, 2018, the Bureaus determined, consistent with the
Commission's decision in the MF-II Challenge Process Order, that speed
test measurements submitted to support or respond to a challenge to an
area that initially is deemed ineligible for MF-II support must be no
more than one-half of one kilometer apart from one another. The Bureaus
also decided to assess challenges using a uniform grid with cells of
one square kilometer and a ``buffer'' with a radius equal to one-half
of the maximum distance parameter, i.e., one-quarter of one kilometer
(250 meters).
8. On March 21, 2018, RWA submitted data regarding the burden a
challenger would experience as a result of these decisions. On March
29, 2018, RWA filed an application for review in which it argued that
the speed test buffer radius size should have been set at one-quarter
mile and that the size of the uniform grid cells should have been one
square mile. One party--Verizon--opposed RWA's application for review
and argued that the grid cell size and the buffer radius should not be
increased.
9. On April 30, 2018, RWA filed an ex parte letter indicating that
increasing the speed test buffer to 400 meters (approximately one-
quarter mile) and maintaining a grid cell size of one square kilometer
would yield largely similar results to increasing the grid cell size to
one square mile and the buffer size to one-quarter mile. On April 30,
2018, the Bureaus, on their own motion, adopted an order on
reconsideration that increased the buffer size to 400 meters. AT&T, the
Competitive Carriers Association (CCA), and U.S. Cellular filed replies
to Verizon's opposition to RWA's AFR, in which they supported the
Bureaus' decision to implement a 400-meter buffer radius. On the issue
of the grid cell size, AT&T argued that the grid cells should not be
resized. CCA and U.S. Cellular argued that the grid cells should be
resized.
10. On June 21, 2018, Verizon filed an application for review of
the Bureaus' order on reconsideration in which it sought reinstatement
of the 250-meter buffer radius. NTCA, Smith Bagley, RWA, and Panhandle
Telecommunication opposed Verizon's application for review and argued
that the 400-meter buffer should be maintained. CCA filed a reply to
the oppositions supporting the 400-meter buffer radius, and Verizon
filed a reply to the oppositions restating its support for a 250-meter
buffer radius.
11. RWA's application for review seeks review of the Bureaus'
procedures adopted in the MF-II Challenge Process Procedures Public
Notice establishing a one kilometer grid cell size and a one-quarter
kilometer ``buffer'' for assessing challenges to areas deemed
ineligible for MF-II support. RWA advocates instead for a one square
mile grid size and a one-quarter mile buffer. It argues that roads in
certain areas of rural America have been laid out on square mile grids
rather than square kilometer grids, which according to RWA means that
using a square kilometer grid would yield more grid cells that cannot
be fully tested by drive testing. RWA argues further that a 250-meter
buffer for each test point would require needlessly dense testing
points which would increase the cost and technical difficulty of
submitting challenges.
12. RWA's subsequent ex parte on April 30, 2018, included
additional information. In Alabama and the Oklahoma Panhandle, RWA
found that increasing the buffer to 400 meters, while maintaining the
one square kilometer grid cell size, would result in a significant
reduction of the percentage of cells for which a challenger could not
fully test by drive testing. Indeed, RWA found that changing the buffer
size would provide better results in Alabama than if both the buffer
and grid cell size were increased. In the area in Alabama that RWA
studied, the number of grid cells requiring some off-road testing
dropped by 26 percentage points when increasing the buffer to 400
meters, versus a decrease of 16 percentage points when increasing
buffer size to 400 meters and increasing the grid cell size to one
square mile.
13. In the Oklahoma Panhandle, RWA found that the results were
largely the same if the buffer size was increased, regardless of
whether the grid cell size was also increased. In both cases, RWA found
that the grid cells requiring some off-road testing would decrease by
nearly 40 percentage points, from 82.3 percent to either 44.7 percent
(buffer size alone) or 43.6 percent (buffer and grid cell size).
Summarizing its analysis, RWA stated that it ``recognizes the Bureaus'
desire to utilize a square kilometer grid cell scheme and believes that
the use of a one square kilometer grid cell and accompanying longer
buffer radius will give prospective challengers the ability to more
meaningfully participate in the MF-II challenge process.''
14. U.S. Cellular supports RWA's AFR. The company estimated that
the one-kilometer grid cell size in conjunction with the original 250-
meter buffer radius size would make mounting a challenge by drive-
testing alone impossible for as much as 78 percent of the areas
involved.
15. After considering the data RWA filed in its March 21, 2018 ex
parte submission, the Bureaus decided to expand the buffer surrounding
each test point from 250 meters to 400 meters (approximately equivalent
to one-quarter mile), explaining that the new data persuaded them that
the previous buffer size and resulting number of test points required
may be unduly burdensome to some challengers. The new evidence
illustrated both the considerable increase in area that could be
covered by drive-testing and the decrease in the number of speed test
measurements typically needed per grid cell resulting from using a
buffer radius of one-quarter of one mile rather than a radius of one-
quarter of one kilometer. These modified parameters decreased the
burden on challengers by reducing the number of speed test measurements
needed to file a successful challenge. Accordingly, because the Bureaus
have already effectively granted RWA's request regarding buffer size,
the Commission dismiss RWA's application for review on these grounds as
moot.
16. In contrast, RWA has not shown that changing the grid cell size
is warranted. The Commission finds that the expansion of the speed test
point buffer to 400 meters (as supported by numerous commenters) while
retaining the square kilometer grid cell size properly balances the
measurements needed for meaningful testing with the burdens placed on
challengers and
[[Page 44243]]
challenged parties. This decision also furthers the Commission's goals
of moving expeditiously to conduct the MF-II auction and of
administrative efficiency. The Commission and the Bureaus have
carefully considered the burdens on entities that choose to submit
challenges and entities that choose to respond to challenges, the goals
of administrative efficiency, and the record evidence.
17. As Verizon and AT&T noted, to implement RWA's proposed resizing
of the grid, ``the Commission would have to reprocess the carrier
coverage maps using a one square mile grid, generate a new map of
presumptively eligible areas, and finally direct USAC to modify its
challenge process software to accept challenges based on one square
mile grid cells.'' AT&T argues that RWA's proposed reconfiguration of
the grid cells ``would be too disruptive'' and would ``significantly
delay the start'' of the MF-II auction. Similarly, Verizon argues that
``stopping the current challenge process and then starting over with a
one square mile grid would extend the challenge process--and delay the
start of the Mobility Fund auction--by many months.''
18. Moreover, as AT&T notes, the benefit sought by RWA--an increase
in the percentage of the area that can be drive tested--``can
effectively be addressed by modifying the buffer radius, as the Bureaus
recently did, on their own motion.'' As RWA admits in its various
submissions, the buffer size is the key parameter affecting the
percentage of cells that can be drive tested and the change made to the
buffer size, by itself, would provide similar results--in terms of the
increase in the percentage of cells that could be challenged by drive
testing--to changing both the buffer size and the grid cell size.
19. RWA, CCA, and U.S. Cellular argue that the one square kilometer
grid cell size prevents challenges in less accessible areas. The
Commission disagrees. Nothing in the challenge process framework
prevents challenges in less accessible areas or in areas that require
some off-road testing. As shown in RWA's own submissions, the buffer
radius is the key parameter affecting the percentage of area that can
be fully tested by drive testing, and increasing the grid cell size in
some areas increases the percentage of cells that require off road
testing in certain areas. Indeed, U.S. Cellular concedes that the
Bureau's increase of the buffer radius to 400 meters undermines its
argument that it cannot use drive testing for much of the MF-II
challenge process.
20. The Commission appropriately balanced the competing interests
of challengers and challenged parties in this proceeding with the need
to efficiently administer the challenge process. Roads do not match
perfectly with any uniform grid, regardless of the size of the grid
cell. The Commission decided to conduct an auction based upon land
area, not road miles, because of limited universal service funds on the
unserved areas where people live, work, and travel. No commenter sought
reconsideration of that decision. Similarly, the Commission decided to
not make special accommodations for less accessible areas, and no
commenter sought reconsideration of that decision. Any ineligible area
may be challenged, and it is incumbent upon challengers and challenged
parties to collect the required speed test points to substantiate or
rebut a challenge. Indeed, as of July 31, 2018, challengers had already
uploaded over 1.6 million speed tests, with a significant number of
those tests taken in primarily rural areas. Accordingly, the Commission
denies RWA's application for review on the grid cell size.
21. RWA submitted an extension request along with its application
for review, requesting that the challenge window be open for 150 days
after its application for review was addressed. The Commission granted
a 90-day extension of the challenge window, which will extend the
challenge window through November 26, 2018. This extension will mean
that the challenge window now provides 200 days after the Order on
Reconsideration for submitting challenges under parameters that largely
address RWA's concerns regarding the percentage of areas that could be
fully tested by drive testing. The Commission thus has already
effectively granted RWA's extension request insofar as it sought at
least 150 days for the challenge window after the modifications to the
challenge process that it sought were implemented.
22. RWA has not demonstrated that a further extension of the window
for filing challenges to areas deemed ineligible for MF-II support is
in the public interest. The window has been extended to now provide a
window of 200 days with parameters that largely address RWA's concerns,
thus providing 50 more days than RWA requested. Although parties may
disagree with the specific rules promulgated to achieve the purposes of
MF-II, the mere filing of an application for review does not alter the
effective date of those rules; a party is not entitled to an extension
of the challenge window on the hope that the Commission will act
favorably on its application for review. Moreover, the Bureaus have
already acted to make it easier to conduct speed tests. Thus, all
affected parties must comply with the rules and the requirements of the
challenge process, should they choose to participate in it, absent
Commission grant of a stay (which RWA did not request). RWA has not
cited any unanticipated circumstances that might explain its members'
need for an extension nor provided a reasonable justification for
granting it.
23. Moreover, granting a further extension as requested by RWA
would work at cross-purposes with the goals of the MF-II proceeding. In
the MF-II Report and Order, 82 FR 15422, March 28, 2017, the Commission
stated that the purpose of MF-II is ``to allocate up to $4.53 billion .
. . to advance the deployment of 4G LTE service to areas that are so
costly that the private sector has not yet deployed there and to
preserve such service where it might not otherwise exist.'' The
Commission also indicated that MF-II would redirect legacy subsidies
away from areas that are fully covered by unsubsidized 4G LTE service.
Further extension of the challenge window undermines the purpose of the
MF-II proceeding by delaying the conclusion of the challenge process,
the release of the final eligible areas map, the commencement of the
MF-II auction, and the refocusing of its limited universal service
funds to the primarily rural areas of the country that need the funds
the most. Under these circumstances, the Commission finds that the now
extended window will provide eligible parties with sufficient time to
prepare and submit any challenges they intend to file and that RWA has
failed to demonstrate that a further extension of the challenge window
would serve the public interest.
24. Accordingly, RWA's extension request is granted in part and is
otherwise denied.
25. Verizon's application for review requests that the Commission
vacate the Bureaus' decision to increase the maximum speed test
distance parameter from 500 meters to 800 meters and the associated
speed test buffer radius from 250 meters to 400 meters. The thrust of
Verizon's application for review is that the Bureaus have shifted the
balance of the MF-II challenge process too far in favor of challengers.
The outcome, Verizon argues, will be to ``allow challengers to
successfully challenge a one square kilometer area with as few as two
speed test points'' and will ``result in widespread false positives,
i.e., presumptively successful challenges of large areas that are in
fact well-served
[[Page 44244]]
by 4G LTE, particularly if providers cherry-pick test points with an
aim of minimizing actual coverage.'' Several carriers and trade
associations filed oppositions to Verizon's arguments; no filers
supported the Verizon AFR. The Commission rejects Verizon's arguments,
agrees with the unanimous opposition to Verizon's AFR, and affirms the
decision of the Bureaus to expand the maximum distance between speed
tests to 800 meters and the buffer radius of speed tests to 400 meters.
26. Verizon argues that the increased speed test buffer radius
allows challengers to ``cherry-pick'' speed test data to challenge the
unsubsidized providers' coverage maps. The Commission disagrees. The
Bureaus did not modify the other numerous and rigorous challenge
process requirements in the MF-II Challenge Process Procedures Public
Notice. Challengers must submit not only speed test data demonstrating
throughput below 5 Mbps, but also data collected demonstrating speeds
equal to or greater than 5 Mbps. Thus, in grid cells well served by
existing 4G LTE, the data submitted to the challenge portal are likely
to reflect speed test results favoring incumbents. Moreover, contrary
to Verizon's argument, providing only two speed tests in a grid cell
with high quality 4G LTE service will likely not be sufficient to
successfully challenge the grid cell. Rather, the combined buffer areas
of sub-5 Mbps speed tests in or adjacent to challengeable grid cells
must cover 75 percent of the challengeable areas of all carriers in the
grid cell. Further, even where combined testing points do cover 75
percent of the challengeable areas in a grid cell, the resulting
presumptive challenge simply shifts the burden of production (though
not the burden of persuasion) to the challenged carrier to produce
evidence rebutting the presumption. A presumptive challenge does not
automatically result in any change to eligibility; final adjudications
of eligibility will occur after challenged parties have an opportunity
to respond to challenges.
27. Verizon also argues that increasing the speed test buffer
radius to 400 meters will increase the number of presumptively
successful challenges in areas already served by 4G LTE--which Verizon
terms ``false positives''--which will degrade the accuracy of the MF-II
eligibility map. The Commission disagrees. The risk of so-called
``false positives'' from a 400-meter buffer is adequately addressed by
the challenge process framework that the Commission adopted. While
increasing the buffer radius to 400 meters can make challenges more
feasible in areas where roads are less dense, it does not lead to the
conclusion that more challenges will cause the accuracy of the final
auction eligibility map to suffer. Verizon's argument appears to
conflate a presumptive challenge with the final disposition of a
challenge. Challenged carriers will have an opportunity to provide
evidence refuting a challenge in any challenged grid cell. And because
speed test points submitted by challenged parties are buffered by the
same distance as points submitted by challengers, increasing the buffer
radius increases the ability of challenged carriers to respond to
challenges.
28. The Bureaus' increase in the number of grid cells that may be
fully tested by drive testing does not alter the network performance
that is being tested, nor will it necessarily result in an increase in
the number of valid challenges. Indeed, as several entities have noted,
more opportunities for challengers to participate in the challenge
process should improve the accuracy of the final eligibility map,
insofar as it subjects more grid cells to confirmation testing. The
Commission likewise agree with NTCA and SBI that the potential risks
associated with increasing the buffer size for the challenge process to
400 meters--i.e., increased availability of challenges--are outweighed
by the benefits of ensuring, through a process that does not unduly
deter challenges, that all areas that lack unsubsidized 4G LTE mobile
service are designated eligible for the auction and have an opportunity
to compete for MF-II support.
29. The Commission also rejected Verizon's argument that the
Bureaus exceeded their authority by increasing the maximum speed test
distance parameter and buffer radius. In the MF-II Challenge Process
Order, the Commission directed the Bureaus to establish the challenge
process speed testing parameters. Specifically, the Commission directed
Bureaus to establish a maximum distance between tests of up to one mile
and to set a corresponding buffer around tests to balance the benefits
to the MF-II process, the burdens on small carriers, and an
administratively efficient adjudication of challenges regarding network
deployment. The Bureaus could consider any maximum speed test distance
parameter and buffer within the established one mile range, including
the 800-meter distance parameter (approximately one-half of one mile)
and corresponding 400-meter buffer radius selected. Thus, the Bureaus
were well within their authority to consider newly available record
evidence that supported their reconsideration of the maximum speed test
distance and buffer radius. In any event, this argument is moot since
the Commission has reviewed and upheld the Bureaus' decision.
30. Although Verizon argues that customer experience is likely to
vary over those distances due to signal attenuation, and terrain and
clutter variations, the Commission notes that the MF-II Challenge
Process Order did not call for speed tests that mirror every customer
experience within a speed tested area, but rather a reasonable balance
of administrative and private burdens and costs in a tested area. The
800-meter distance parameter and 400-meter buffer radius reflect such a
balance. The parameters selected by the Bureaus also has received
widespread support from other parties participating in this proceeding.
All four of the parties opposing Verizon's AFR, as well as a reply to
the oppositions, supported expanding the buffer radius and maximum
speed test distance. Similarly, in filings submitted in response to
RWA's AFR, AT&T, CCA, and U.S. Cellular all supported expanding the
buffer radius. The Commission further note that, while Verizon objects
to the Bureaus' reliance on RWA's evidence, it did not cite any other
record evidence, new or otherwise, that undermines the Bureaus'
decision.
31. For all these reasons, the Commission denies Verizon's
application for review.
IV. Ordering Clauses
32. Accordingly, it is ordered that pursuant to the authority
contained in sections 1, 4(i) and (j), 254, 303(r), and 332 of the
Communications Act of 1934, as amended, and section 706 of the
Telecommunications Act of 1996, 47 U.S.C. 151, 154(i), (j), 254,
303(r), 332, 1302, and sections 1.1, 1.115, 1.412, and 1.427 of the
Commission's rules, 47 CFR 1.1, 1.115, 1.412, 1.427, this Order and
Memorandum Opinion and Order is adopted.
33. It is further ordered that, pursuant to the authority contained
in sections 1, 4(i) and (j), 254, 303(r), and 332 of the Communications
Act of 1934, as amended, and section 706 of the Telecommunications Act
of 1996, 47 U.S.C. 151, 154(i), (j), 254, 303(r), 332, 1302, and
sections 1.1 and 1.412 of the Commission's rules, 47 CFR 1.1, 1.412,
the deadline for challengers to submit information in connection with
the MF-II challenge process is extended, to the extent described
herein.
34. It is further ordered that, pursuant to authority contained in
sections 4(i),
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254, 303(r), and 332 of the Communications Act of 1934, as amended, and
section 706 of the Telecommunications Act of 1996, 47 U.S.C. 154(i),
254, 303(r), 332, 1302, and section 1.46 of the Commission's rules, 47
CFR 1.46, RWA's Request for Extension of Challenge Window is granted in
part, and is denied in part, to the extent described herein.
35. It is further ordered that, pursuant to section 5(c)(5) of the
Communications Act of 1934, as amended, 47 U.S.C. 155(c)(5), and
section 1.115(g) of the Commission's rules, 47 CFR 1.115(g), the
Application for Review filed by the Rural Wireless Association, Inc. on
March 29, 2018, is granted in part, dismissed as moot in part, and
denied in part to the extent described herein.
36. It is further ordered that, pursuant to section 5(c)(5) of the
Communications Act of 1934, as amended, 47 U.S.C. 155(c)(5), and
section 1.115(g) of the Commission's rules, 47 CFR 1.115(g), the
Application for Review filed by Verizon Communications, Inc. on June
22, 2018, is denied.
37. It is further ordered that, pursuant to Sec. 1.427(b) of the
Commission's rules, 47 CFR 1.427(b), this Order shall be effective upon
its publication in the Federal Register.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2018-18804 Filed 8-28-18; 11:15 am]
BILLING CODE 6712-01-P