On July 12, 2024, the FCC released a Fourth Report and Order, Declaratory Ruling, and Fourth Further Notice of Proposed Rulemaking on the Broadband Data Collection (“BDC”). Specifically, the item adopts the following:
I. Fourth Report and Order (“Order”)
In the Order, the FCC codifies the challenge process deadline as required by the Infrastructure Investment and Jobs Act (“IIJA”), and delegates authority to the Office of Economics and Analytics (“OEA”) to conduct audits of broadband data submitted by providers. Specifically, the FCC:
A. Codifies the Adjudication Deadlines for Availability Challenges
1. Fixed Service Challenges – The FCC amends its rules to implement a 90-day deadline adjudication for adjudication that begins to run after the provider’s final response.
2. Mobile Service Challenges – For mobile challenges, “Commission staff will resolve the challenge within 90 days following the 60th day after which the provider is notified of the challenge (i.e., the deadline for submitting challenge rebuttal data),” unless OEA requests supplemental information, in which case the clock starts on the day the supplemental data is due.
B. Delegates Authority to OEA, and Other Bureaus, to Conduct Audits – The FCC delegates authority to OEA, the Wireless Telecommunications Bureau (“WTB”), the Wireline Competition Bureau (“WCB”), and the Space Bureau (“SB”) (collectively “the Bureaus”), to perform audits using the currently available processes and data specifications. They also have authority to develop new processes for audits, and to develop a process to randomly select areas and providers to audit.
C. Adopts Other Ministerial Changes – The FCC makes “ministerial changes to [its] rules to replace references to the ‘Digital Opportunity Data Collection’ or ‘DODC’ with references to the Broadband Data Collection or BDC, as appropriate.”
The Order and rules adopted therein will be effective thirty (30) days after the date of publication in the Federal Register.
II. Declaratory Ruling
The Declaratory Ruling clarifies that the FCC’s “rules do not preclude a service provider from subsequently submitting information in a later BDC filing to demonstrate that it can now make service available to a location or area that was previously removed through the challenge, verification or audit processes” and delegates authority to OEA to determine data specifications for restoring removed locations. Specifically, the FCC:
A. Clarifies That Removed Locations and Areas Can Be Restored – The FCC clarifies that providers are required to submit more detailed data in their biannual BDC submissions to restore removed locations/areas.
B. Clarifies That Providers Are Obligated to Submit Data on Service Availability to Removed Locations or Areas as Part of their BDC Filings – The FCC “clarif[ies] that the requirement that BDC ‘filings shall be made each year on or before March 1 (reporting data as of December 31 of the prior year) and September 1 (reporting data as of June 30 of the current year)’ includes an obligation that providers submit data on service availability to Removed Locations or Areas.”
C. Delegates Authority to the Bureaus to Establish Data Specifications for Restoring Locations or Areas – The FCC delegates authority to OEA, WCB, WTB, OET, and SB, to develop detailed data specifications setting out the categories of information a provider must submit when seeking to restore a previously Removed Location or Area through a subsequent BDC filing.
The Declaratory Ruling was effective upon release.
III. Fourth Further Notice of Proposed Rulemaking (“FNPRM”)
The Fourth Further Notice of Proposed Rulemaking “seek[s] comment on proposed changes to the availability data filing process, as well as possible amendments and clarifications to several of [the FCC’s] data-validation rules.” Specifically, the FCC seeks comment on the following:
A. Limiting Publication of Data on “Grandfathered” Services – The FCC proposes “to amend [its] rules to permit filers to indicate that the service offered at a location is a grandfathered service only,” in which case, the data could be treated as confidential, and would not published in the National Broadband Map. For these purposes, the FCC proposes to define “grandfathered” service as: “any broadband Internet access service that is currently provided to an existing end user at a Broadband Serviceable Location, but that a facilities-based provider is discontinuing, has permanently ceased to advertise or market to new or potential subscribers, and would not make available to a new or potential subscriber at the Broadband Serviceable Location.”
B. Collecting Terrestrial Fixed Wireless Spectrum Authorization Information – The FCC “seek[s] comment on changing [its] rules to require terrestrial fixed wireless providers to submit additional information that would allow the Commission to better verify terrestrial fixed wireless service availability data submitted in the BDC.”
C. Additional Certifications and Data from Satellite Providers – The FCC “seek[s] comment on requiring additional certifications and supporting data from satellite providers.”
D. Data Retention Requirements – The FCC proposes to require that providers retain their BDC data for at least three years from the date of submission. This would apply to data used to support verifications, challenges, and audits.
E. Sharing Fabric Challenges with Providers – The FCC proposes to amend the fabric challenge process to allow Internet service providers to submit follow-on challenges to challenged or new Fabric locations in a subsequent version of the Fabric.
F. Professional Engineering Certification – The FCC “seek[s] comment on whether [it] should eliminate the requirement in [its] rules that parties submitting verified broadband data in the BDC provide a certification by a licensed professional engineer if not submitted by a corporate engineering officer,” particularly since this requirement has been waived for several filing periods. In particular, the FCC proposes to:
1. “Allow for the engineering certification to be submitted by (i) a corporate officer possessing a B.S. in engineering degree and who has direct knowledge of and responsibility for the carrier’s network design and construction; (ii) an engineer possessing a bachelor’s or postgraduate degree in electrical engineering, electronic technology, or another similar technical discipline, and at least seven years of relevant experience in broadband network design and/or performance; or (iii) an employee with specialized training relevant to broadband network engineering and design, deployment, and/or performance, and at least 10 years of relevant experience in broadband network engineering, design, and/or performance”;
2. “Clarify that a certifying engineer does not necessarily need to be a full-time employee of the broadband service provider but instead could be an independent contractor or third-party consultant”; and
3. “Maintain the remaining requirements in section 1.7004(d), including that the certifying engineer: (i) has direct knowledge of, or responsibility for, the generation of the provider’s BDC filing; and (ii) has examined the information contained in the BDC submission and that, to the best of the engineer’s actual knowledge, information, and belief, all statements of fact contained in the submission are true and correct, and in accordance with the service provider’s ordinary course of network design and engineering.”
G. Data Requirements from Restoration of Locations Lost or Conceded to Challenges – The FCC seeks comment on the data requirements for restoring locations or areas where infrastructure data is not relevant to the challenge code.
H. Aligning Reporting Requirements for Broadband Availability and Subscribership Data – The FCC proposes to align the Form 477 counts of ‘broadband internet access service connections’ with the BDC definition of mass-market broadband, to harmonize reporting.
I. A New Rule Subsection for the Fabric Challenge Process – The FCC proposes to create a new subsection specifically for the Fabric challenge process.
Comments on the FNPRM will be due 30 days after the date of publication in the Federal Register and reply comments will be due 60 days after Federal Register publication.
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