On August 18, 2020, the FCC’s final rules were published for the development of a new, detailed national broadband map to determine what areas of the country are served and unserved by fixed and mobile broadband. This will better inform policymakers and consumers where further investment is needed to deploy broadband. This is a major overhaul of the FCC’s broadband reporting rules and is intended to make its broadband mappingand the data on which it is based—much more reliable and accurate than it has historically been. With millions of U.S. employees and students working and studying at home during the COVID-19 pandemic – now entering its sixth month—high quality broadband has truly become essential, often life-saving, infrastructure to every American, like access to the electric grid. The lack of accurate data was exposed in December 2019 when the FCC suspended the Mobility Fund Phase II reverse auction following an FCC report detailing inaccuracies in the 4G LTE mobile broadband coverage data reported by mobile providers. To address this, under these new broadband data collection rules, future broadband mapping by the FCC will be based on granular broadband availability and performance data reported semiannually by fixed and mobile broadband providers. The reported data will also be subject to multiple sources of verification, including a third party challenge process.

In the Second Report and Order in its Digital Opportunity Data Collection rulemaking,¹ begun one year earlier, the FCC took concrete action to address the “compelling and immediate need” for better broadband deployment data. In doing so, the Order also responds to the mandates of Congress’ Broadband DATA Act enacted in March 2020, in which Congress required the FCC to issue final rules within 180 days (1) requiring the collection of granular data from broadband providers on the availability and performance of broadband services; (2) creating publicly available coverage maps; (3) establishing processes for the challenge and verification of coverage maps; and (4) creating a common database where fixed broadband services exist or can readily be provisioned.

Historically, the FCC’s broadband data collection has, since 2000, relied on the FCC Form 477. Since 2013, the FCC has had a Form 477 form filing requirement that all fixed service providers do census block-level reporting of where they offer broadband access. While admittedly “imperfect,” that data relying exclusively on existing broadband providers, without further verification, helped the Commission identify at least many areas where broadband was unavailable. However, the need for more granular and verifiable data has become increasingly important to target high cost support to truly unserved areas and to avoid subsidizing overbuilding.

The new broadband data collection rules require that all terrestrial fixed and satellite service providers must report either polygon shapefiles or lists of addresses or locations that make up their service areas. Fixed wireless providers must report their shapefiles in the form of wireless propagation maps and detail the speeds and latency of their service, or a list of addresses or locations that reflect their service areas. Providers must submit an explanation of the methodology or methodologies used, including how distances from aggregation points were determined. The FCC also has established maximum “buffers” around network facilities such as distribution or coaxial plant to define potential “maximum” coverage for specific fixed technologies, to which the provider can actually serve locations with broadband. That is, if it cannot serve locations with broadband up to the maximum distance from the aggregation point, the provider should exclude those areas from reporting as served by broadband. The maximum buffers for fixed broadband technologies are:

  • DSL (at 25/3 Mbps or greater) – 6,600 feet from the DSLAM
  • Hybrid-Fiber Coax (HFC or cable) -12,000 feet from the aggregation point
  • Fiber to the Premises (FTTP) – 196,000 feet from the OLT to the ONT (Optical Network Termination)

The Commission will also require mobile broadband providers to use propagation modeling to generate technology-specific maps showing 4G LTE coverage, 3G networks and next-generation 5G-NR networks. To avoid inaccuracies or discrepancies in data previously reported for 4G LTE coverage, the FCC will require each mobile coverage map to reflect coverage areas whether wireless users should expect to receive the minimum required download speed of at least 5 Mbps and upload speed of 1 Mbps, with not less than a 90% cell edge coverage probability and a cell loading of not less than 50%. Order, paras. 37-39. For 5G-NR networks, the FCC requires those wireless providers to use a minimum speed threshold of 7/1 Mbps at the cell edge. Furthermore, 5G-NR service providers will need to submit deployment data based on a 35/3 Mbps minimum speed threshold at the cell edge.

The FCC will also require mobile providers to provide detailed information about their propagation models and link budgets to verify the accuracy of their propagation models.

The “Fabric”
The FCC, guided by its stated intention in the Digital Opportunity Data Collection rulemaking and the requirements of the Broadband DATA Act (“Act”), approved adoption of the “Fabric” or a database containing geocoded locations for all locations where a broadband connection “can be installed.” However, at the same time, the FCC cautions (as Chairman Pai has also testified before Congress) that while the Act authorizes the FCC to contract with an entity with GIS expertise to create and maintain the “Fabric,” the FCC “has not yet been appropriated funding to implement [it]…and therefore cannot begin to implement them.” Id. para. 54. So when this Fabric will be created, and by whom, still remains uncertain.

Timing of Collection Filings
As required by the Act, the FCC establishes filing deadlines of March 1 (reporting data as of December 31 the previous year) and September 1 (reporting data as of June 30 of the current year). A public notice will be issued at least six months prior to the initial filing deadline, and fixed and mobile service providers must file their initial reports by that initial filing deadline. Because this Order is effective September 17, 2020, a public notice on or before October 1, 2020 announcing the initial new broadband data reporting deadline of March 1, 2021 for data as of December 31, 2020 can be expected.

Processes for Verifying Broadband Availability Data
To comply with the Act, the FCC adopted rules for processes to verify the accuracy and reliability of broadband service availability data submitted by providers. The FCC adopted the following measures to do so:
  1. cross-checking of coverage data submitted with the USAC-maintained High Cost Universal Broadband (HUBB) portal;
  2. use of FCC audits;
  3. a certification requirement for all biannual provider submissions; and
  4. processes for collecting crowdsourced and verified third-party data. The FCC has directed its OET, OEA, WCB and WTB offices to develop a process for entities and individuals to submit fixed and mobile crowdsourced data consistent with the Act and Commission policies. Consideration of crowdsourced data submitted will prioritize “highly reliable” data collection applications that have “proven methodologies” for gauging network coverage and performance. An online portal will be created for crowdsourced data filings and for challenge filings.
Broadband Map
The FCC will establish a Broadband Map that depicts the extent of broadband availability, as well as unserved areas, overlaid on the fixed service Fabric data, “without regard to whether that service is fixed or mobile,” AND separate maps depicting fixed coverage and mobile coverage. These coverage maps will be updated “at least biannually.”

Further Comment Sought on Challenge Process and on Form 477 Filings
In a further notice of proposed rulemaking published on August 18, the FCC requests comment on proposals to enable consumers, and state, local and tribal governments, to challenge broadband data submitted by broadband providers. It also seeks comment on targeted changes to broadband subscribership data submitted by broadband providers. The FCC asks for input on requiring certifications from engineers on mobile propagation maps to be filed by mobile broadband providers under the new reporting rules. Finally, the FCC seeks comment on how it should interpret and enforce the Broadband DATA Act’s proscription that it is unlawful to “willfully and knowingly, or recklessly, submit information or data that is materially inaccurate or incomplete” with respect to the “availability” or “quality” of broadband service. It asks what the scope of penalties should be for violations of this standard, and whether a new base forfeiture amount should be set for such violations under section 503(b) of the Act. Interested parties may file comments on or before September 8, 2020. Reply comments can be filed on or before September 17, 2020.

¹Establishing the Digital Opportunity Data Collection; Modernizing the FCC Form 477 Program, WC Docket Nos. 11-10 and 19-195

For questions about the issues raised by this client bulletin, please contact Douglas G. Bonner at dbonner@potomaclaw.com.

This publication is distributed with the understanding that the author, publisher and distributor of this publication and/or any linked publication are not rendering legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.

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