Surviving the Challenge Process

EXISTENTIAL CRISIS

With #BEAD Initial Proposals submitted to the National Telecommunications and Information Administration (NTIA) for review, state #broadband offices (SBOs) are turning their focus to the next step in unlocking #IIJA broadband funds--the Challenge Process. On a recent Broadband Breakfast webinar, I had the chance to join other SBO leaders to discuss our states’ processes. The engaged audience made one thing very clear:?

The Challenge Process raises #ISP fears of overbuilding to new heights. With a bit less Chicken Little energy and a bit more spirit of collaboration, we will survive it.

Comments made by providers on the webinar revealed a threat-to-livelihood vibe. There is a lot of money on the table for broadband, and with that money comes competition and fears surrounding how this historic investment will shift the market. The Challenge Process is contentious by nature. It pits providers against each other. And it pits providers against the SBOs that are forced to adjudicate the status of location eligibility within an imperfect (and constantly shifting) data framework.

States are committed to getting to the most accurate BEAD eligible location set to ensure public dollars are only spent on locations that lack qualified broadband service. Some providers are committed to the belief that SBOs are ignorant bureaucrats conspiring to kill their business. Fun times!

STEPPING THROUGH

Kansas is currently knee deep in the Challenge Process. Let’s review the many steps of this affair:

• Deduplication of all prior grants/enforceable commitments is performed
• States publish a list of proposed BEAD eligible locations. Kansas started with a list of about ~85-90,000 BSLs. Our locations were published in early December.
• Challenge portal is opened for submissions. Kansas had a 30 day window that opened 12/14 and closed 1/14.
• Initial determination. States review challenges and either accept or reject the challenges based on NTIA defined evidence thresholds and the process each state outlined in their IPV1. Kansas used the NTIA model challenge process with DSL modifications and speed test premods.
• Rebuttal. This is the phase we are currently in. Kansas has a 14 day rebuttal that began 1/26 and closes 2/9.
• Challenge posting. A list of all submitted challenges and rebuttals will be posted publicly before final challenge determinations are made. This is part of our transparency plan as outlined on page 15 of our IPV1.
• Final adjudication of challenged locations. Final determination is slated for March 11 in Kansas.
• List sent to NTIA. NTIA will vet the state’s process for alignment with their IPV1, transparency, and fairness.
• Post-challenge deduplication. Following NTIA approval of the Challenge Process, states will perform another round of deduplication using the most current version of NBAM.
• Final BSL list for subgrantee process is posted along with project funding areas (in states that have chosen to define PFAs). In Kansas, we will publish our PFAs and BEAD eligible BSLs for a minimum of 14 days prior to commencement of the subgrant application process.
• Subgrantee selection. States can then begin the subgrant process if they have secured NTIA approval of their IPV2. Kansas’ volume 2 is still in the curing phase. “Curing” is NTIA-speak for the back-and-forth that takes place between federal compliance staff and state broadband offices regarding submitted documents.
• Final proposal. States deliver a proposed list of BEAD awardees to NTIA within 365 days of IPV2 approval.
• Final deduplication. There is an additional deduplication performed before awards are actually released.

As you can see, there are many efforts built into the process to minimize the risk of overbuilding. The lag between map versions, additional rounds of USDA Rural Development awards, and the continuous infusion of private investment makes getting to a perfect list of unserved and underserved locations a near impossibility. But states will hone their eligibility lists to the best of their ability.?

WHERE WE LANDED

Kansas had ~2,000 challenges comprising ~277,000 locations during the 30 day challenge window. Challengers were permitted to include up to 500 locations in a challenge, except for Community Anchor Institution (CAI) challenges, which had to be submitted at the individual location level.?

Overall, we accepted 91.1% of all challenge locations. For the 8.9% of rejected challenges, providers were sent emails that said their locations did not meet evidentiary thresholds. We offered individual debrief meetings to walk through why the locations were rejected and to explain how future deduplication rounds might remedy discrepancies.?

234,000 of our challenge locations (over 84%) were submitted by one provider that chose to use the challenge process like their BDC filing. Note to providers: please don’t do this.?

Kansas had a dearth of nonprofit and local government participation in the Challenge Process, despite robust outreach and technical assistance on the frontend. Two nonprofits, four local governments, and one Tribal Nation participated. This probably deserves its own post.

Below is a map/list of challenge locations by challenger.

There are 13 types of challenges. The most common challenge by number of locations was type P for planned/existing build.?

Again, the P challenge location numbers were skewed by one provider that logged 502 challenges, most of them containing the maximum 500 locations per challenge. Again, note to providers: don’t do this.?

The most common challenge by type and second most common challenge by location number was Q - or CAI challenges. Most of these challenges were from providers with CAIs showing as underserved.?

Remember that CAIs must have access to symmetrical gigabit speeds or they are BEAD eligible. After broadband deployment to all unserved (25/3) and underserved (100/20) premises, CAIs with less than 1000/1000 speeds are next in line. Providers that reported 1000/50 speeds to CAIs, for instance, did not meet the upload requirement. Kansas received more than 1,100 challenges in this category, primarily from two providers. A summary of challenges by type is below.?

SURVIVAL TIPS

Approaching the Challenge Process with a collaborative spirit versus an adversarial one can help make it less painful for both sides. A few tips on how to get through it:

Providers*

• Engage early with your SBO - Attend pre-challenge webinars and other opportunities to learn and ask questions about the process. Kansas held twice-monthly industry roundtables in addition to how-to webinars and in-person presentations to help prepare challengers.
• Read your state’s IPV1 - Many states are using NTIA’s model process with various modifications.
• Understand evidence thresholds - if you aren’t sure what qualifies as adequate evidence, ask your SBO.
• Use location specific evidence - The most common reason for rejection in Kansas was that the submitter did not provide location specific evidence demonstrating that qualifying service was available. For instance bills were provided as evidence, but with addresses redacted.??
• Register early - If pre-registration is allowed, create an account in the challenge portal and test it out to ensure you know how to operate it.
• Submit challenges early - Waiting until the last minute adds stress to your staff and to ours. Those who submitted challenges in Kansas early were allowed to submit additional evidence to meet thresholds based on feedback that their initial submission was lacking. We emphasized repeatedly that we would do this, but that we would not have staff capacity to offer this opportunity during the final 48 hours of challenge. Unfortunately many providers waited until the last day and did not get that opportunity. The final 24-48 hours brought five times more challenges than the previous 28 days combined.
• Include dates on type P challenges - Providing construction contracts or similar evidence of a planned build is great, but is not sufficient without a date for expected deployment. In Kansas planned challenges must have an expected completion date before June 30, 2024. Some states have extended these dates. Look at the evidence and review approach outlined in each state’s IPV1 for details.
• Provide speed data for your covered CAIs - Remember some CAIs don’t have availability data in the FCC map because they aren’t all listed as BSLs. This has been cleaned up considerably in version 3 of the map, but we went to Challenge under version 2. Kansas created a spreadsheet of all the CAIs we identified in the state and sent it to providers with a request that they indicate on the spreadsheet which locations they serve and at which speeds. We took that information in good faith and included in it our data. Not everyone responded, however. ISPs that did not respond to the initial request had to submit a lot of CAI challenges.
• Don’t submit unnecessary challenges - Please don’t dump your entire network into the challenge portal like it’s your BDC filing. This adds a ton of extra work for SBOs and does nothing to protect you further.?

*I have thoughts for local/Tribal governments and nonprofits, but I’m focusing on #ISP challengers because this is getting too long ??

State Broadband Offices

• Outreach like never beforeSBOs are excellent at outreach, but this requires a different level. You cannot over communicate about this process. Even if you’ve administered other grant programs and have been through challenge processes, treat this like it’s new to everyone.?
• Nontraditional participants need extra consideration - Local governments and nonprofits are not as accustomed to participating in these sorts of affairs as ISPs are. Kansas tried to educate nontraditional challenge participants through presentations at city, county, and other association events, and by offering webinars specific to these groups. Ultimately, our efforts were not as successful as I would have liked. I don’t have the answer here, but bear in mind that our approach did not produce the best results.
• Gather CAI data in advance? - For reasons listed above, you may want to offer providers the ability to report in advance on speed availability for CAIs in their network. Happy to share our spreadsheet if you want a template.
• Limit the number of locations allowed per challenge - As noted earlier, Kansas limited our locations to 500. This may have been too many per challenge, as SBOs are forced to review evidence on an individual location basis anyway and we had a ton of manual verification. Make this decision carefully.
• Provide evidence samples - You might consider producing a deck or webinar for challengers that granularly outlines what does and does not qualify as sufficient evidence. Kansas did not do this and a few providers struggled.?
• Watch early states? - Learn from our pain and avoid it! IPV1 requires a transparency plan. Use that info as states release it. Kansas is waiting on clarification from NTIA before we publish our Challenge Process results on our website. I’ll be sure to share it when it’s posted.?Call me if you want a debrief meeting with other insights that I won’t put on blast on LinkedIn. I’ve already conducted two meetings, and I’ll be open for mentoring hours at SBLN next week.

To summarize, Kansas is not a state with a BEAD slush fund. Adding BSLs to our BEAD list that aren’t clearly eligible does nothing but make it harder for us to reach our universal connectivity goal. We are interested solely in producing the most accurate, data-driven universe of BEAD eligible locations so applicants can begin planning as soon as project funding areas are released. We acknowledge your overbuilding concerns and will do everything possible to avoid overbuilding in our program.?

#connectingallkansans #internetforall