003.19.16-4. Challenge Process
AR ADC 003.19.16-4Arkansas Administrative CodeEffective: January 1, 2024
Effective: January 1, 2024
Ark. Admin. Code 003.19.16-4
003.19.16-4. Challenge Process
<Emergency action effective Jan. 01, 2024.>
ARConnect will treat locations that the National Broadband Map shows to have available qualifying broadband service (i.e., a location that is “served”) delivered via DSL as “underserved.” This modification will better reflect the locations eligible for BEAD funding because it will facilitate the phase-out of legacy copper facilities and ensure the delivery of “future-proof” broadband service.
ARConnect will enumerate locations subject to enforceable commitments by using the BEAD Eligible Entity Planning Toolkit, and consult several data sets, including, but not limited to:
ARConnect will create a list of BSLs subject to enforceable commitments based on state/territory and local grants or loans. If necessary, ARConnect will translate polygons or other geographic designations (e.g., a county or utility district) describing the area to a list of Fabric locations. ARConnect will submit this list to NTIA in the format specified by the FCC Broadband Funding Map.
ARConnect will review its repository of existing state and local broadband grant programs to validate the upload and download speeds of existing binding agreements to deploy broadband infrastructure. Where state or local programs did not specify broadband speeds, or when there is reason to believe provider deployed higher broadband speeds than required, ARConnect will verify the deployment speeds of the binding commitment with the provider. ARConnect will document this process by requiring providers to sign a binding agreement certifying the actual broadband speeds deployed.
ARConnect drew on these provider agreements, along with its existing database on state and local broadband funding programs' binding agreements, to determine the set of state and local enforceable commitments.
During the BEAD Challenge Process, ARConnect will only allow challenges from nonprofit organizations, units of local government, and internet service providers, as recognized by the State of Arkansas.
ARConnect will only allow challenges on the following grounds:
The challenge process conducted by ARConnect will include four phases, spanning approximately 90 days:
1. Publication of Eligible Locations: Prior to beginning the Challenge Phase, ARConnect will publish the locations eligible for BEAD funding, which consists of the locations resulting from the activities outlined in Sections 5 and 6 of the NTIA BEAD Challenge Process Policy Notice (e.g., administering the deduplication of funding process). ARConnect will also publish a list of ineligible locations, as they may be challenged.
2. Challenge Phase: During the Challenge Phase, a permissive challenger will submit the challenge through ARConnect challenge portal. This challenge will be visible to the service provider whose service availability and performance is being contested. The portal will notify the provider of the challenge through an automated email, which will include related information about timing for the provider's response. After this stage, the location be considered challenged.
a. Minimum Level of Information Sufficient to Establish a Challenge: The challenge portal will verify that the address provided can be found in the Fabric and is a BSL. The challenge portal will confirm that the challenged service is listed in the National Broadband Map and meets the definition of reliable broadband service. The challenge portal will confirm that the email address is reachable by sending a confirmation message to the listed contact email. For scanned images, the challenge portal will determine whether the quality is sufficient to enable optical character recognition (OCR). For availability challenges, ARConnect will manually verify that the evidence submitted falls within the categories stated in the NTIA BEAD Challenge Process Policy Notice and the document is unredacted and dated.
3. Rebuttal Phase: Only a challenged service provider may rebut the reclassification of a location or area, causing the challenge to be designated as “disputed.” If a challenge that meets the minimum level of evidence is not rebutted, the challenge is sustained. A provider may also agree with the challenge and resulting in the challenge being sustained. Providers must regularly check the challenge portal notification method for notifications of submitted challenges.
To ensure that each challenge is reviewed and adjudicated based on fairness for all participants and relevant stakeholders, ARConnect will review all applicable challenge and rebuttal information in detail without bias, before deciding to sustain or reject a challenge. ARConnect will provide justification for all challenge determinations and all challenges will be reviewed uniformly. ARConnect will also require that all reviewers submit affidavits to ensure that there is no conflict of interest in making challenge determinations.
Code | Challenge Type | Description | Specific Examples | Permissible rebuttals |
|---|---|---|---|---|
A | Availability | The broadband service identified is not offered at the location, including a unit of a multiple dwelling unit (MDU). | Screenshot of provider webpage. | Provider shows that the location subscribes or has subscribed within the last 12 months, e.g., with a copy of a customer bill. |
A service request was refused within the last 180 days (e.g., an email or letter from provider). | If the evidence was a screenshot and believed to be in error, a screenshot that shows service availability. | |||
Lack of suitable infrastructure (e.g., no fiber on pole). | The provider submits evidence that service is now available as a standard installation, e.g., via a copy of an offer sent to the location. | |||
A letter or email dated within the last 365 days that a provider failed to schedule a service installation or offer an installation date within 10 business days of a request. 2 | ||||
A letter or email dated within the last 365 days indicating that a provider requested more than the standard installation fee to connect this location or that a Provider quoted an amount in excess of the provider's standard installation charge in order to connect service at the location. | ||||
S | Speed | The actual speed of the service tier falls below the unserved or underserved thresholds. 3 | Speed test by subscriber, showing the insufficient speed and meeting the requirements for speed tests. | Provider has countervailing speed test evidence showing sufficient speed, e.g., from their own network management system. 4 |
L | Latency | The round-trip latency of the broadband service exceeds 100 ms. 5 | Speed test by subscriber, showing the excessive latency. | Provider has countervailing speed test evidence showing latency at or below 100 ms, e.g., from their own network management system or the CAF performance measurements. 6 |
D | Data cap | The only service plans marketed to consumers impose an unreasonable capacity allowance (“data cap”) on the consumer. 7 | Screenshot of provider webpage. | Provider has terms of service showing that it does not impose an unreasonable data cap or offers another plan at the location without an unreasonable cap. |
Service description provided to consumer. | ||||
T | Technology | The technology indicated for this location is incorrect. | Manufacturer and model number of residential gateway (CPE) that demonstrates the service is delivered via a specific technology. | Provider has countervailing evidence from their network management system showing an appropriate residential gateway that matches the provided service. |
B | Business service only | The location is residential, but the service offered is marketed or available only to businesses. | Screenshot of provider webpage. | Provider documentation that the service listed in the BDC is available at the location and is marketed to consumers. |
E | Enforceable commitment | The challenger has knowledge that broadband will be deployed at this location by the date established in the deployment obligation. | Enforceable commitment by service provider (e.g., authorization letter). | Documentation that the provider has defaulted on the commitment or is otherwise unable to meet the commitment (e.g., is no longer a going concern). |
P | Planned service | The challenger has knowledge that broadband will be deployed at this location by June 30, 2024, without an enforceable commitment or a provider is building out broadband offering performance beyond the requirements of an enforceable commitment. | Construction contracts or similar evidence of on-going deployment, along with evidence that all necessary permits have been applied for or obtained. Contracts or a similar binding agreement between ARConnect and the provider committing that planned service will meet the BEAD definition and requirements of reliable and qualifying broadband even if not required by its funding source (i.e., a separate federal grant program), including the expected date deployment will be completed, which must be on or before June 30, 2024. | Documentation showing that the provider is no longer able to meet the commitment (e.g., is no longer a going concern) or that the planned deployment does not meet the required technology or performance requirements. |
N | Not part of enforceable commitment | This location is in an area that is subject to an enforceable commitment to less than 100% of locations and the location is not covered by that commitment. (See BEAD NOFO at 36, n. 52.) | Declaration by service provider subject to the enforceable commitment. | |
C | Location is a CAI | The location should be classified as a CAI. | Evidence that the location falls within the definitions of CAIs set by ARConnect. 8 | Evidence that the location does not fall within the definitions of CAIs set by ARConnect or is no longer in operation. |
R | Location is not a CAI | The location is currently labeled as a CAI but is a residence, a non-CAI business, or is no longer in operation. | Evidence that the location does not fall within the definitions of CAIs set by ARConnect or is no longer in operation. | Evidence that the location falls within the definitions of CAIs set by ARConnect or is still operational. |
2 A standard broadband installation is defined in the Broadband DATA Act (47 U.S.C. § 641(14)) as “[t]he initiation by a provider of fixed broadband internet access service [within 10 business days of a request] in an area in which the provider has not previously offered that service, with no charges or delays attributable to the extension of the network of the provider.”
3 The challenge portal must gather information on the subscription tier of the household submitting the challenge. Only locations with a subscribed-to service of 100/20 Mbps or above can challenge locations as underserved, while only locations with a service of 25/3 Mbps or above can challenge locations as unserved. Speed challenges that do not change the status of a location do not need to be considered. For example, a challenge that shows that a location only receives 250 Mbps download speed even though the household has subscribed to gigabit service can be disregarded since it will not change the status of the location to unserved or underserved.
4 As described in the NOFO, a provider's countervailing speed test should show that 80 percent of a provider's download and upload measurements are at or above 80 percent of the required speed. See Performance Measures Order, 33 FCC Rcd at 6528, para. 51. See BEAD NOFO at 65, n. 80, Section IV.C.2.a.
5 Performance Measures Order, including provisions for providers in non-contiguous areas (§ 21).
6 Ibid
7 An unreasonable capacity allowance is defined as a data cap that falls below the monthly capacity allowance of 600 GB listed in the FCC 2023 Urban Rate Survey (FCC Public Notice DA 22-1338, December 16, 2022). Alternative plans without unreasonable data caps cannot be business-oriented plans not commonly sold to residential locations. A successful challenge may not change the status of the location to unserved or underserved if the same provider offers a service plan without an unreasonable capacity allowance or if another provider offers reliable broadband service at that location.
8 For example, eligibility for FCC e-Rate or Rural Health Care program funding or registration with an appropriate regulatory agency may constitute such evidence, but ARConnect may rely on other reliable evidence that is verifiable by a third party.
ARConnect will administer area and multiple dwelling unit (“MDU”) challenges for challenge types A, S, L, D, and T.
An area challenge reverses the burden of proof for availability, speed, latency, data caps and technology if a defined number of challenges for a particular category, across all challengers, have been submitted for a provider. Thus, the provider receiving an area challenge or MDU must demonstrate that they are indeed meeting the availability, speed, latency, data cap, and technology requirement, respectively, for all (served) locations within the area or all units within an MDU. The provider can use any of the permissible rebuttals listed in the table above.
An area challenge is triggered if six (6) or more Broadband Serviceable Locations within a single census block group using a particular technology and a single provider within a census block group submit the same type of challenge.
An MDU challenge requires challenges by at least three (3) units or 10% of the unit count listed in the Fabric within the same broadband serviceable location, whichever is larger.
Each type of challenge and each technology and provider is considered separately, i.e., an availability challenge (A) does not count towards reaching the area threshold for a speed (S) challenge. If a provider offers multiple technologies, such as DSL and fiber, each is treated separately since they are likely to have different availability and performance.
Area challenges for availability need to be rebutted with evidence that service is available for all BSL within the census block group, e.g., by network diagrams that show fiber or hybrid fiber-coaxial (HFC) infrastructure or customer subscribers. For fixed wireless service, the challenge system will randomly sample at least ten (10) broadband serviceable locations from the area in contention where the provider must demonstrate service availability and speed (e.g., with a mobile test unit).
ARConnect will accept speed tests as evidence for substantiating challenges and rebuttals. Each speed test consists of three measurements, taken on different days. Speed tests cannot predate the beginning of the challenge period by more than 60 days.
Speed tests can take four forms:
Each speed test measurement must include:
Each group of three speed tests must include:
The IP address and the subscriber's name, and street address are considered personally identifiable information (PII) and thus are not disclosed to the public (e.g., as part of a challenge dashboard or open data portal).
Each location must conduct three speed tests on three different days; the days do not have to be adjacent. The median of the three (3) tests (i.e., the second highest (or lowest) speed) is used to trigger a speed-based (S) challenge, for either upload or download. For example, if a location claims a broadband speed of 100 Mbps/25 Mbps and the three speed tests result in download speed measurements of 105, 102 and 98 Mbps, and three upload speed measurements of 18, 26, and 17 Mbps, the speed tests qualify the location for a challenge, since the measured upload speed marks the location as underserved.
Speed tests may be conducted by subscribers, but speed test challenges must be gathered and submitted by units of local government, nonprofit organizations, or an internet service provider.
Subscribers submitting a speed test must indicate the speed tier they are subscribing to. If the household subscribes to a speed tier of between 25/3 Mbps and 100/20 Mbps and the speed test results in a speed below 25/3 Mbps, this broadband service will not be considered to determine the status of the location. If the household subscribes to a speed tier of 100/20 Mbps or higher and the speed test yields a speed below 100/20 Mbps, this service offering will not count towards the location being considered served or underserved. However, even if a particular service offering is not meeting the speed threshold, the eligibility status of the location may not change. For example, if a location is served by 100 Mbps licensed fixed wireless and 500 Mbps fiber, conducting a speed test on the fixed wireless network that shows an effective speed of 70 Mbps does not change the status of the location from served to underserved.
A service provider may rebut an area speed test challenge by providing speed tests, in the manner described above, for at least 10% of the customers in the challenged area. The customers must be randomly selected. Providers must apply the 80/80 rule [FN3], i.e., 80% of these locations must experience a speed that equals or exceeds 80% of the speed threshold. For example, 80% of these locations must have a download speed of at least 20 Mbps (that is, 80% of 25 Mbps) and an upload speed of at least 2.4 Mbps to meet the 25/3 Mbps threshold and must have a download speed of at least 80 Mbps and an upload speed of 16 Mbps to be meet the 100/20 Mbps speed tier. Only speed tests conducted by the provider between the hours of 7 pm and 11 pm local time will be considered as evidence for a challenge rebuttal.
To ensure that the challenge process is transparent and open to public and stakeholder scrutiny, ARConnect will, upon approval from NTIA, publicly post an overview of the challenge process phases, challenge timelines, and instructions on how to submit and rebut a challenge. This will include a form for all providers in the state to submit an email at which they would like to be contacted for challenge notifications. This documentation will be posted publicly for at least a week prior to opening the challenge submission window. Relevant stakeholders can sign up on ARConnect's website broadband.arkansas.gov for challenge process updates and newsletters, as well as to view an FAQ page listed under “FAQ.” If a question is unanswered by the FAQ page, ARConnect can be reached by emailing [email protected].
Beyond actively engaging relevant stakeholders, ARConnect will also post all submitted challenges and rebuttals before final challenge determinations are made, including:
• the provider, nonprofit, or unit of local government that submitted the challenge;
• the census block group containing the challenged broadband serviceable location;
• the provider being challenged;
• the type of challenge (e.g., availability or speed); and
• a summary of the challenge (building off a summary submitted by the challenger), including whether a provider submitted a rebuttal (building off a summary submitted by the provider).
ARConnect will not publicly post any personally identifiable information (PII) or proprietary information, including subscriber names, street addresses and customer IP addresses. To ensure all PII is protected, ARConnect will review the basis and summary of all challenges and rebuttals to ensure PII is removed prior to posting them on the website. Additionally, guidance will be provided to all challengers as to which information they submit may be posted publicly.
ARConnect will treat information submitted by an existing broadband service provider designated as proprietary and confidential consistent with applicable federal law. Broadband service providers will also be required to submit a redacted version of any documents containing proprietary and confidential information. If any of these responses do contain information or data that the submitter deems to be confidential commercial information that should be exempt from disclosure under the Arkansas Freedom of Information Act or is protected under applicable state privacy laws, that information should be identified as privileged or confidential. Otherwise, the responses will be made publicly available.
Credits
Adopted emergency effective Jan. 1, 2024.
The broadband funding map published by FCC pursuant to IIJA § 60105 is referred to as the “FCC Broadband Funding Map.”
The NTIA has approved the following speed test applications: speedtest.net; https://speed.measurementlab.net/#/; https://speed.cloudflare.com/; https://fast.com/; or any ARConnect sponsored or operated speed test sites (including commercial aggregators such as https://ready.net/).
The 80/80 threshold is drawn from the requirements in the CAF-II and RDOF measurements. See BEAD NOFO at 65, n. 80, Section IV.C.2.a.
Current with amendments received through February 15, 2024. Some sections may be more current, see credit for details.
Ark. Admin. Code 003.19.16-4, AR ADC 003.19.16-4
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