TR Daily FCC Offers Flexibility in Performance Testing for High-Cost Support
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Friday, October 25, 2019

FCC Offers Flexibility in Performance Testing for High-Cost Support

The FCC today unanimously approved changes to its performance metrics rules for carriers that receive high-cost support for fixed broadband service, as well as clarifying the impact that noncompliance would have on a carrier’s support, in response to requests from carriers affected by a 2018 bureau-level order that adopted speed- and latency-testing requirements.

The 2018 order adopted by the FCC’s Wireline Competition and Wireless Telecommunications bureaus and Office of Engineering and Technology in WC docket 10-90 was intended to promote “greater accountability for certain recipients of Connect America Fund (CAF) high-cost universal service support, including price cap carriers, rate-of-return carriers, rural broadband experiment (RBE) support recipients, Alaska Plan carriers, and CAF Phase II auction winners.” The order set a uniform framework for measuring the speed and latency performance for recipients of high-cost universal service support to serve fixed locations; required providers to submit testing results as part of their annual compliance certification; and stated that carriers could face reductions in support for not complying with the speed and latency requirements (TR Daily, July 6).

The order on reconsideration adopted today in the same docket maintained the general approach of the 2018 order, continuing to require “quarterly speed and latency tests between specified numbers of active subscribers’ homes and the Internet,” the FCC noted in press release. However, it made some modifications to the rules to give carriers greater flexibility in meeting those testing requirements, including correlating the start of network testing to align with the deployment obligations specific to the program from which the carrier receives support, Stephen Wang, an attorney adviser in the Wireline Competition Bureau’s Telecommunications Access Policy Division, explained when presenting the item to the Commissioners at today’s FCC meeting.

The order also establishes a “pre-testing” period to “allow carriers to become familiar with testing procedures without facing a loss of support for failure to meet the requirements,” the FCC said in the press release. During a press conference after the meeting, Commission staff told reporters that the draft order circulated three weeks ago (TR Daily, Oct. 4) had been revised to direct date submitted during the pre-testing period will be publicly available.

The order also gives carriers greater flexibility in choosing customer locations and end-points for testing performance.

“This flexibility will enable carriers of all sizes and technical capabilities to meet testing requirements without unnecessary costs, while maintaining accountability,” the FCC said in the press release.

In addition to the changes in the testing requirements, the order gives carriers “credit” where they can demonstrate compliance “for some portion of the support term,” so that they do not lose all support, Mr. Wang said.

In his separate statement, Commissioner Mike O’Rielly praised the item for providing “some needed flexibility on timing and other testing components while reaffirming the Commission’s overall goal of ensuring sufficient, quality broadband from one of our consumer-paid subsidy programs.”

However, he said he was “dismayed by a certain narrative, put forth not by the Chairman or his good team or people within the agency, but by folks on the outside, that the groups who are seeking some relief and clarification within our broadband testing regime were attempting to harm rural America and subject it to inferior broadband service. I have worked with the petitioner groups for many years, and while Lord knows we have agreed and disagreed on various issues, this type of messaging was unfair and unfounded. These are reputable organizations, representing hardworking companies seeking to bring broadband service to some of the hardest-to-serve regions of our nation. I would urge those casting accusations to take their rhetoric down a notch or two before engaging in further criticism of some of the dedicated people trying to bring digital access to their neighbors, friends, and communities.”

Commissioner Brendan Carr said that “the agency has never required or held carriers accountable to these types of specific performance requirements. And that’s a shame because, as I visit rural communities in this job, I hear from Americans that often express doubt that they’re getting what they’ve paid for. With this Order today, the full Commission votes for the first time on these uniform performance metrics and requirements.”

He praised the order for “respect[ing] the privacy of homeowners by clarifying that carriers need not put Whitebox monitoring devices inside a customer’s house. From my time on the road, I doubt it would go uniformly well if an official knocked on a door and told the homeowner that the government wanted them to install a device to monitor their Internet usage. So today’s decision now recognizes that carriers can meet their obligations without that type of intrusive measure.”

In requests for review of the 2018 order, WTA and NTCA separately noted that smaller carriers faced difficulties in obtaining or retrofitting modems, routers, or specialized devices for in-home monitoring. Commissioner Carr added, “I am also glad that we reject requests today that would have limited the performance test to only a portion of the network. I understand that carriers are not directly in control of intermediate networks, but I also know that these carriers have promised the Commission that they would offer a level of service in exchange for universal service funding. I know, perhaps even more importantly, that they’ve promised their customers a certain level of service. So they need to use their funding wisely to ensure that they have sufficient transport to give their customers what they rightly expect.”

Commissioner Jessica Rosenworcel said, “Going forward, carriers that accept universal service support to provide broadband will be required to test their networks to ensure that they actually offer the service they have committed to deliver. This is about accountability. It’s important. The FCC must make sure there are measures in place to demonstrate that universal service funding is being used to extend the reach of high-speed service to all. In other words, we have promises to keep.”

However, she added, “We also still have work to do. Two years ago, Representative Frank Pallone [D., N.J.] called attention to the fact that the FCC’s own Inspector General stated that the agency does not have the dedicated resources it needs to police the universal service high cost program. That’s a problem. And just one week ago the Inspector General reminded us that this program does not comply with the Improper Payments Elimination and Recovery Improvement Act. We need to address these problems—stat. We need confidence in this program. We need to ensure it truly delivers.”

Commissioner Geoffrey Starks said, “Today’s Order improves our ability hold carriers to account as they deliver on the promise of broadband. It helps safeguard precious Universal Service dollars. And it offers needed clarity to CAF participants on the requirements that they face to prove that they have met their obligations. The addition of pre-testing periods to our regime affords both carriers and the Commission time to evaluate how deployments are performing, and I am glad to see that the Commission has mandated public access to the pre-testing data generated by the carriers. I look forward to seeing those numbers.”

Chairman Ajit Pai said, “The testing methodologies we adopt today are rigorous because we must ensure that both American taxpayers (who contribute to the Universal Service Fund) and rural consumers are getting their money’s worth. But these methodologies are also workable for all carriers. We recognize that carriers of different sizes and technical and financial capabilities have different needs. So today, we decide to closely review the existing testing methodologies and make targeted changes that will provide flexibility and eliminate unnecessary burdens on carriers, while still ensuring that carriers are accountable to consumers, taxpayers, and the Commission.”

He added, “Whether it is a two-way video chat between a doctor and her patient, a student collaborating with classmates in real-time on a school project, or just a family streaming their favorite movies and television, rural Americans must have a broadband connection that will consistently deliver the performance that modern applications require. And today’s Order will help ensure that’s the case.”

Industry reaction to the order was positive.

Patrick Halley, USTelecom’s senior vice president–policy and advocacy, said that the performance metrics order “will provide needed clarity around how USTelecom members can demonstrate their experience as stewards of valuable USF funding. While we await the details, we appreciate the Commission taking this opportunity to streamline some processes while maintaining needed accountability.”

Derrick Owens, WTA’s senior vice president–government and industry affairs, said, “WTA strongly supports accountability in the use of Universal Service Fund support and the goal of testing networks for speed and latency. However, we want to make sure that testing is tailored to the size of the carrier and the USF-supported network. We appreciate that the FCC has chosen to delay testing for the smaller carriers we represent and institute a one-year pre-test period. If carriers encounter problems with the testing rules during this period and report them to the FCC, we hope that the FCC will adjust its testing procedures accordingly.”

Louis Peraertz, VP-policy for the Wireless Internet Service Providers Association, said, “WISPA appreciates the extensive engagement with Commission staff, which is reflected in the many improvements to the CAF performance testing regime the FCC adopted today. We appreciate the Commission’s efforts to revise the Order on Reconsideration to balance the need for rigorous testing with the burdens on CAF recipients to ensure that commitments made to rural consumers are met. By adopting a ‘pre-testing’ period, the FCC acknowledges that testing for, and assessing compliance with, speed and latency benchmarks will be a first-time activity for the FCC, USAC and high-cost recipients. With much-needed clarity provided in today’s Order, WISPA’s members that are receiving CAF support can now begin the process of implementing their performance testing solutions.” —Lynn Stanton, [email protected]

MainStory: FederalNews FCC UniversalServiceLifeline

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