Connect America Fund Universal Service Reform-Mobility Fund, 44241-44245 [2018-18804]

Download as PDF 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– amozie on DSK3GDR082PROD with RULES SUMMARY: VerDate Sep<11>2014 16:35 Aug 29, 2018 Jkt 244001 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 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 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. E:\FR\FM\30AUR1.SGM 30AUR1 44242 Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Rules and Regulations 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 amozie on DSK3GDR082PROD with RULES 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. VerDate Sep<11>2014 16:35 Aug 29, 2018 Jkt 244001 PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 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 E:\FR\FM\30AUR1.SGM 30AUR1 amozie on DSK3GDR082PROD with RULES Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Rules and Regulations 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. VerDate Sep<11>2014 16:35 Aug 29, 2018 Jkt 244001 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 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 44243 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 E:\FR\FM\30AUR1.SGM 30AUR1 amozie on DSK3GDR082PROD with RULES 44244 Federal Register / Vol. 83, No. 169 / Thursday, August 30, 2018 / Rules and Regulations 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 VerDate Sep<11>2014 16:35 Aug 29, 2018 Jkt 244001 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 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 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),

[[Page 44245]]

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


This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.