The Federal Communications Commission's ("FCC") recent release of the national Broadband Map, which purports to identify all locations in the U.S. where fixed and mobile broadband internet service is available as of June 30, 2022, triggers the start of a challenge process at the agency that will allow consumers and others to contest the availability of broadband service in certain locations and also allow internet service providers ("ISPs") to demonstrate the availability of broadband service at specific locations in their territory to defend against potential subsidization of overbuilds in their broadband service areas. This "availability" challenge process will allow the agency to refine its determination of locations where broadband of at least 25/3 Mbps is available and to then publish a revised version of the Broadband Map in 2023 based upon such data.
The National Telecommunications and Information Administration ("NTIA") will rely upon the revised 2023 version of the FCC Broadband Map to allocate $42.5 billion to the states and other jurisdictions under the Broadband Equity, Access, and Deployment ("BEAD") Program authorized by the Infrastructure, Investment and Jobs Act. Because the allocation of those funds will be prioritized for areas shown as unserved on the Broadband Map, ISPs should engage in the availability challenge processes to ensure that locations within their service areas are accurately shown on the Broadband Map as having service available.
In addition to the "availability" challenge process, separate procedures are available to ISPs and individuals to challenge "location" data supporting the Broadband Map and to report missing locations on the Broadband Map or underlying list of serviceable locations. These location challenges will occur concurrently with the availability challenges that may now be filed.
Under the FCC's availability challenge process, any person, service provider, entity or government (state, local or tribal) may contest the initial determination that broadband internet service of at least 25/3 Mbps is available at a specific location (i.e., that the location is served by broadband or could be served within 10 business days without special construction charges). ISPs will then have the opportunity to respond to such challenges with data showing that the location is in fact "served" under the FCC's definition. The outcome of the challenge process will determine whether a location will be prioritized as unserved for BEAD funding.
Although there is no specific deadline for submitting availability challenges, the NTIA is encouraging eligible entities to submit such challenges no later than January 13, 2023. Meeting that deadline will ensure that the FCC can incorporate any changes into the next version of the Broadband Map that will be used to allocate BEAD funding in the summer of 2023.
Entities challenging the availability of fixed broadband service at a particular location may do so based upon one or more of nine pre-established challenge categories:
- Provider failed to schedule a service installation within 10 business days of a request;
- Provider did not install the service at the agreed-upon time;
- Provider requested more than the standard installation fee to connect this location;
- Provider denied the request for service;
- Provider does not offer the technology, or service type, at this location;
- Reported speed not available for purchase;
- Subscribed speed not achievable;
- No wireless or satellite signal is available at this location;
- New, non-standard equipment is required to connect this location (satellite/fixed wireless only).
The FCC's online portal will alert an ISP if there has been a challenge to the designation of service availability at a location served by that provider and the ISP will then have 60 days to respond to the notice by either conceding or disputing the challenge. If disputing the challenge, the ISP must provide evidence in the online portal and to the challenger that it serves, or can serve (within 10 business days), the challenged location. ISPs responding to challenges must confer with challengers directly to resolve the challenge. If the parties cannot reach consensus within 60 days after submission of the provider's response in the portal, the affected ISP must report the status of the efforts to resolve the challenge in the portal. The FCC will then review the evidence in the portal and decide in favor of the challenger or in favor of the provider. If an ISP loses, concedes, or fails to rebut the challenge, the ISP must update its Broadband Data Collection data within 30 days and the FCC will modify the Broadband Map to remove the indication that the location is served by that provider.
Different evidentiary standards will be used depending upon who files a particular challenge. Challenges filed by consumers must make an initial showing "by a preponderance of evidence" that a provider's data is not accurate. ISPs responding to such challenges must provide rebuttal data subject to the same evidentiary standard. In challenges to service availability data submitted by governmental or other entities, the challenger must make a detailed, clear, and methodologically sound showing that a provider's data is inaccurate, by clear and convincing evidence.
In addition to availability challenges, interested parties can submit "location challenges" to either the Broadband Map or the so-called serviceable location "Fabric." Challenges to locations in the Fabric, permitted since September of 2022, allow governments, service providers, and other entities to file serviceable location challenges to update data used to populate the Fabric. Separate from that process is another process whereby individuals can file a location challenge directly through the Broadband Map interface if they believe a serviceable location is missing or the information about that location is incorrect. Successful location challenges will result in new locations being added to future versions of the Broadband Map, which could generate later availability challenges, like those described above.
State Level Availability Challenges Anticipated in 2023
Further availability challenge opportunities will arise in each state after each state submits its initial BEAD funding proposal to the NTIA. Interested providers should monitor the BEAD funding and state proposal process carefully to ensure subsidies are not directed to areas served by that ISP.