EA-CAM Broadband and Availability Issues

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In the ICORE Blog issue dated 1/31/24, we discussed the FCC’s Wireline Competition Bureau’s (WCB) 1/25/24 Public Notice providing guidance regarding the resolution of broadband location and availability issues as required by the EA-CAM Order (Order). Per that Order, the WCB must ensure that the EA-CAM support amounts and deployment obligations reflect the most accurate location data from the Broadband Serviceable Location Fabric (Fabric) and the Broadband Data Collection (BDC) process that reflects locations and broadband deployment that existed at the time the EA-CAM offers were made but were not reflected in the Fabric or or the National Broadband Map. The Order requires that any adjustments to the EA-CAM support amounts and deployment obligations must be made no later than the end of 2025. The WCB’s 1/25/24 Public Notice provides details regarding the adjustment and challenge process which we highlighted in the 1/31/24 ICORE Blog.

On 2/15/24 members of the EA-CAM Coalition met with representatives of the WCB to discuss the process outlined in the 1/25/24 Public Notice. The EA-CAM members expressed the following concerns:

* The Coalition expressed concern that the 3/8/24 deadline to submit challenges to location data does not provide sufficient time for EA-CAM companies to fully review and analyze the current data set and to prepare and file challenges and the required supporting documentation. The Coalition suggested that the 3/8/24 deadline be extended to 6/1/24 to afford EA-CAM companies a more reasonable opportunity to continue to prepare and submit location challenges in order to ensure a more accurate location Fabric.

* The Coalition also discussed the version of the location data and service availability data the WCB will use in the adjustment process. The 1/25/24 Public Notice states that the WCB plans to use BDC availability data as of 12/31/23 which is due 3/1/24 as well as any challenges to broadband availability data that have been resolved by 5/15/25. The Coalition takes exception to this approach pointing out that the Order requires the use of “locations and broadband deployment that existed at the time the EA-CAM offers were made”. Use of data through the end of 2023 allows for adjustments to deployment obligations and support amounts for activity that occurred between August 30, 2023 (the date of the EA-CAM offers) and the end of 2023 which is contrary to the Order.

* An additional concern expressed by the Coalition is that the use of service availability data through 12/31/23 could potentially incentivize some service providers (presumably non-ILEC) to overstate their available broadband speeds knowing that doing so could result in reductions in support for EA-CAM companies thereby providing a competitive advantage to these service providers.

* Using the 12/31/23 service availability data would also negatively impact EA-CAM companies’ ability to prepare and submit service availability challenges. The WCB process requires that service availability challenges be filed by 8/1/24 in order to ensure resolution by the 5/15/25 cutoff. The Coalition points out that the 12/31/23 service availability data will not be filed until 3/1/24 and will likely not be made available for review until sometime in mid-May thus not providing EA-CAM companies sufficient time to prepare and file challenges by the 8/1/24 deadline.

* The Coalition urged the WCB to follow the intent of the Order by using the service availability data contained in the 9/15/23 BDC filings. The Coalition opines that this data reflects service availability data as of 6/30/23 and therefore includes data “that best reflects serviceable locations and broadband coverage at the time of the offer”, in reference to the EA-CAM offers.

* Finally, the Coalition states that should the WCB decide to use 12/31/23 service availability data, EA-CAM companies that deployed broadband at 100/20 or higher during the period 6/30/23 and 12/31/23 should not be penalized for having done so. In those situations EA-CAM carriers should receive the full level of support for those locations as contained in the EA-CAM offers for the full term of the offers.

In addition to the concerns expressed by the Coalition described above, in a letter dated 2/26/24 and filed with the FCC, NTCA, WTA, and USTelecom jointly expressed concerns related to the WCB’s 1/25/24 Public Notice and the guidance outlined relative to location and broadband availability adjustments. These organizations concerns and suggestions are consistent with those expressed by the Coalition relative to the use of data as of 12/31/23 and the 3/8/24 deadline for challenges.

The EA-CAM Coalition, NTCA, WTA, and USTelecom put forth valid concerns and suggestions that we hope will result in quick action by the FCC in granting the requested modifications to the WCB’s guidance relative to potential adjustments to EA-CAM companies’ deployment obligations and support. We will continue to monitor this issue and will provide updates as the situation evolves.

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