Proposed Rule2023-21476
Establishing a 5G Fund for Rural America
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 28, 2023
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission or FCC) makes proposals and seeks comment on a limited set of issues to refresh the record and continue its implementation of the 5G Fund for Rural America.
Full Text
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<title>Federal Register, Volume 88 Issue 187 (Thursday, September 28, 2023)</title>
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[Federal Register Volume 88, Number 187 (Thursday, September 28, 2023)]
[Proposed Rules]
[Pages 66781-66795]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-21476]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[GN Docket No. 20-32; FCC 23-74; FR ID 175020]
Establishing a 5G Fund for Rural America
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) makes proposals and seeks comment on a limited set
of issues to refresh the record and continue its implementation of the
5G Fund for Rural America.
DATES: Comments are due on or before October 23, 2023; reply comments
are due on or before November 21, 2023.
ADDRESSES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated on the first page of
this document. All comments must be filed in GN Docket No. 20-32.
Comments may be filed using the Commission's Electronic Comment Filing
System (ECFS). See Electronic Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998). You may submit comments, identified by
GN Docket No. 20-32, by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: <a href="https://www.fcc.gov/ecfs/">https://www.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
[cir] Commercial Overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Dr.,
Annapolis Junction, Annapolis, MD 20701.
[cir] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19.
<bullet> People with Disabilities: To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format) send an email to <a href="/cdn-cgi/l/email-protection#f3959090c6c3c7b3959090dd949c85"><span class="__cf_email__" data-cfemail="274144441217136741444409404851">[email protected]</span></a> or call
the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice),
(202) 418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: Kelly Quinn of the Office of Economics
and Analytics, Auction Division, at (202) 418-0660 or
<a href="/cdn-cgi/l/email-protection#a7ecc2cbcbde89f6d2cec9c9e7c1c4c489c0c8d1"><span class="__cf_email__" data-cfemail="84cfe1e8e8fdaad5f1edeaeac4e2e7e7aae3ebf2">[email protected]</span></a>, Valerie Barrish of the Office of Economics and
Analytics, Auction Division, at (202) 418-0354 or
<a href="/cdn-cgi/l/email-protection#6137000d041308044f23001313081209210702024f060e17"><span class="__cf_email__" data-cfemail="e4b2858881968d81caa68596968d978ca4828787ca838b92">[email protected]</span></a>, or Mary Lovejoy of the Office of Economics and
Analytics, Auction Division, at (202) 418-2024 or <a href="/cdn-cgi/l/email-protection#612c0013184f2d0e17040b0e18210702024f060e17"><span class="__cf_email__" data-cfemail="f1bc908388dfbd9e87949b9e88b1979292df969e87">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking (FNPRM) in GN Docket No. 20-32,
FCC 23-74, adopted on September 21, 2023 and released on September 22,
2023. The full text of this document is available for public inspection
at the following internet address: <a href="https://www.fcc.gov/document/fcc-seeks-further-comment-5g-fund-rural-america">https://www.fcc.gov/document/fcc-seeks-further-comment-5g-fund-rural-america</a>.
Synopsis
I. Introduction
1. Armed with the new, granular, and improved mobile coverage data
obtained in the Broadband Data Collection (BDC) and reflected on its
new National Broadband Map, the Commission continues the implementation
of the 5G Fund for Rural America (5G Fund) and advance its efforts to
ensure the deployment of high-speed, 5G mobile service in areas of the
country where, absent subsidies, it will continue to be lacking. The
Commission undertakes this effort in recognition that those living,
working, and travelling in unserved areas must have access to high-
speed, 5G mobile service. The need for high-speed mobile services has
never been more critical, yet there are many areas of its country that
continue to lack access to 5G service. In fact, some areas continue to
lack access to any mobile broadband service at all. Moreover, moving
forward with the 5G Fund will allow the Commission to proceed with its
plan to transition from mobile legacy high-cost support, which
continues to be distributed inefficiently.
2. Accordingly, with this narrowly tailored Further Notice of
Proposed Rulemaking (FNPRM), the Commission seeks to refresh the record
and reignite the Commission's plan to expand the deployment of 5G
service to those rural communities that remain trapped on the wrong
side of the digital divide. To that end, the Commission seeks comment
on a limited set of issues that are critical to the 5G Fund's success,
namely: (1) defining the areas that will be eligible for 5G Fund
support; (2) reassessing the budget for the 5G Fund; (3) potentially
reconsidering the use of adjusted square kilometers as the metric for
accepting bids and identifying winning bids in a 5G Fund auction; (4)
aggregating areas eligible for 5G Fund support to minimum geographic
areas for bidding; (5) measuring a 5G Fund support recipient's
compliance with its public interest obligations and performance
requirements based on any modified metric for accepting bids and
identifying winning bids; (6) modifying the schedule for transitioning
from mobile legacy high-cost support to 5G Fund support consistent with
recent legislative amendments; (7) a proposal to require each 5G Fund
Phase I auction applicant to certify, under penalty of perjury, that it
has read the public notice adopting procedures for the auction, and
that it has familiarized itself with those procedures and any
requirements related to the support made available for bidding in the
auction; (8) whether to require 5G Fund support recipients to implement
cybersecurity and supply chain risk management plans; and (9)
determining whether and how this proceeding might create an opportunity
to support further deployment of Open Radio Access Network (Open RAN)
technologies.
3. The entire country benefits when everyone, including those
living and working in rural areas, can communicate and innovate equally
through access to high-speed, mobile broadband services. Access to
high-speed, mobile services allows connections to essential civic,
economic, and social opportunities. It touches almost all aspects of
daily life, including work and education, access to news and
entertainment, public safety information and services, and healthcare,
and allows interconnection in times of national crisis. The importance
of expanding access to high-speed, 5G services in rural communities
cannot be overstated. The Commission therefore issues this Further
Notice of Proposed Rulemaking (FNPRM) mindful that full participation
in American society requires us to make 5G service available to
everyone, no matter where they live.
II. Background
4. In its October 2020 5G Fund Report and Order, 85 FR 75770 (Nov.
25, 2020), the Commission established the 5G Fund as a replacement for
Mobility Fund Phase II. The 5G Fund would use
[[Page 66782]]
multi-round reverse auctions to distribute up to $9 billion, in two
phases, to retarget mobile universal service in the high-cost program
to bring voice and 5G broadband service to rural areas of the country
unlikely to otherwise see unsubsidized deployment of 5G-capable
networks. The Commission decided that it would use new, more precise,
verified mobile coverage data gathered through the BDC to determine the
areas eligible for support in a 5G Fund auction. The Commission defined
the areas eligible for support in the 5G Fund Phase I auction as those
that lack unsubsidized 4G LTE and 5G broadband service by at least one
service provider based on BDC data. The Commission also decided that it
would accept bids and identify winning bids in a 5G Fund auction using
a support price per adjusted square kilometer. Under this approach,
each eligible area will have an associated number of square kilometers
that will be adjusted by an adjustment factor that will assign a weight
to each geographic area and apply that adjustment factor to bidding for
support amounts, and support amounts for an area will be determined by
multiplying an area's associated adjusted square kilometers by the
relevant price per square kilometer. For example, an area with 100
square kilometers and an adjustment factor of 1.2 would have 100x1.2 or
120 adjusted square kilometers.
5. The Commission recognized from the outset that waiting for the
collection of new, more precise, verified mobile coverage data obtained
in the BDC would not be the fastest path to holding a 5G Fund auction,
but reasoned that this would allow the Commission to better target 5G
Fund support to those areas of the country where support is most needed
and where the funds could be spent most efficiently. The Commission
explained that waiting for the development of a National Broadband Map
was critical to the success of the 5G Fund, even though at the time it
lacked the congressional appropriation necessary to implement the BDC.
The Commission also reasoned that any risk of delay in holding a 5G
Fund auction was further mitigated by the public interest obligations
it was adopting for competitive eligible telecommunications carriers
(ETCs) to continue receiving legacy high-cost support for mobile
wireless services.
6. In this regard, the Commission adopted requirements for both
competitive ETCs receiving legacy high-cost support for mobile wireless
service and 5G Fund auction support recipients to meet public interest
obligations to provide voice and 5G broadband service, and to satisfy
distinct, measured performance requirements as a condition of receiving
support. Pursuant to the rules adopted in the 5G Fund Report and Order,
recipients of both legacy mobile high-cost support and 5G Fund auction
support are required to meet minimum baseline performance requirements
for data speed, latency, and data allowance, including: (1) deploying
5G networks that meet at least the 5G-NR (New Radio) technology
standards developed by the 3rd Generation Partnership Project with
Release 15 (or any successor release that may be adopted by the Office
of Economics and Analytics (OEA) and Wireline Competition Bureau (WCB)
after appropriate notice and comment) with median download and upload
speeds of at least 35 Mbps and 3 Mbps with minimum cell edge download
and upload speeds of 7 Mbps and 1 Mbps; (2) meeting end-to-end round
trip data latency measurements of 100 milliseconds or below; and (3)
offering at least one service plan that includes a minimum monthly data
allowance that is equivalent to the average United States subscriber
data usage. The Commission explained that these performance
requirements, along with public interest obligations for reasonably
comparable rates, collocation, and voice and data roaming, will ensure
that rural areas receive service reasonably comparable to high-speed,
mobile broadband service available in urban areas.
7. To make certain that 5G Fund support recipients meet their
public interest obligations and performance requirements in areas where
they receive support, the Commission adopted interim and final service
deployment milestones along with reporting requirements to monitor
their progress. Specifically, the Commission adopted milestones
requiring a 5G Fund support recipient to offer 5G service meeting
established performance requirements to at least 40% of the total
square kilometers associated with the eligible areas for which it is
authorized to receive 5G Fund support in a state by the end of the
third full calendar year following authorization of support, to at
least 60% of the total square kilometers by the end of the fourth full
calendar year, and to at least 80% of the total square kilometers by
the end of the fifth full calendar year. Moreover, the Commission
adopted a final service deployment milestone that would require a 5G
Fund support recipient to offer 5G service that meets the established
5G Fund performance requirements to at least 85% of the total square
kilometers associated with the eligible areas for which it is
authorized to receive 5G Fund support in a state by the end of the
sixth full calendar year following authorization of support.
Additionally, a 5G Fund support recipient is required to demonstrate by
the end of the sixth full calendar year following authorization of
support that it provides service that meets the established 5G
performance requirements to at least 75% of the total square kilometers
within each of its individual biddable areas.
8. In May 2023, the Commission released the latest version of its
new National Broadband Map, which reflects the most granular and
accurate mobile coverage data it has gathered through the BDC to date.
The Commission will release major updates to this map twice a year,
overlaying available data from service providers in these updates to
ensure that the National Broadband Map is current. Based on the mobile
coverage data the Commission has collected in the BDC, its
understanding of where mobile service remains lacking has improved
significantly, and therefore, the Commission is proceeding with its
plans for the 5G Fund. Accordingly, the Commission seeks comment on a
limited set of issues in the FNPRM to ensure that it meets its
obligation of ensuring that those in rural America have access to
services reasonably comparable to those provided in urban areas and to
achieve its policy goal of ensuring that everyone who lives, works, and
travels throughout the country experiences the benefits of high-speed,
mobile 5G technology.
III. Identifying Areas Eligible for 5G Fund Support
A. Defining the Areas Eligible for 5G Fund Support
9. In the 5G Fund Report and Order, the Commission decided to
determine the areas eligible for support in the 5G Fund Phase I auction
based on where new mobile coverage data submitted in the BDC show a
lack of both unsubsidized 4G LTE and unsubsidized 5G broadband service
by at least one service provider. The Commission noted in the 5G Fund
Report and Order that while most providers were then still in the early
stages of deploying their 5G networks in rural areas, it expected that
the data collected in the BDC would show significant 5G broadband
deployments. The Commission concluded that consistent with its
longstanding policy of avoiding overbuilding competitive networks, it
would exclude areas with unsubsidized
[[Page 66783]]
5G broadband deployment from eligibility for 5G Fund support. At the
time it established the 5G Fund, the Commission noted that because
nationwide providers had already begun to deploy 5G service in more
populated parts of the country, many urban and suburban areas had
already benefitted from the evolution to 5G networks, and that even
more widely-available 5G service was expected in the near future. The
Commission also decided to exclude from eligibility for 5G Fund support
those areas where BDC data show the deployment of unsubsidized 4G LTE
networks, reasoning that subsidizing 5G deployments where unsubsidized
4G LTE networks already have been deployed would be unnecessary and
risk preempting 5G deployments the Commission expected in those areas.
The Commission based this belief on the combination of the then-rapid
state of competitive deployment in the marketplace and T-Mobile's
enforceable transaction commitments. Moreover, the Commission adopted
restrictions on the use of 5G Fund support to fulfill enforceable
commitments to deploy 5G, concluding that it would be inefficient to
allow any provider with enforceable 5G deployment obligations to use
universal service support to fund those deployments. In light of T-
Mobile's extensive rural 5G deployment commitments relating to its
acquisition of Sprint, the Commission said it would allow T Mobile to
make binding pre-auction commitments to identify the areas in which it
will deploy 5G to fulfill its transaction commitments so that such
areas can be removed from the auction inventory. The Commission
directed OEA and WCB to establish specific procedures for making such
pre-auction binding commitments that would cover, as appropriate,
qualifications and restrictions on participating in the pre-selection
process.
10. Throughout this proceeding, some parties have taken issue with
the definition of areas eligible for 5G Fund support. These parties
maintain that the Commission incorrectly presumed that an area that has
unsubsidized 4G LTE service will see the deployment of 5G service
without the need for subsidies, and/or ask the Commission to define the
areas eligible for 5G Fund support as those where BDC mobile coverage
data show a lack of unsubsidized 5G broadband service. Furthermore, the
Commission received two petitions seeking reconsideration of its
decision to exclude from eligibility for 5G Fund support areas where
BDC mobile coverage data show the existence of unsubsidized 4G LTE or
5G broadband service by at least one provider, each of which asks us to
instead define as eligible for 5G Fund support any area that lacks
unsubsidized 5G broadband service. See 86 FR 6611 (Jan. 22, 2021).
11. Today, the Commission's new National Broadband Map reflects the
most recently available data concerning mobile broadband service
availability and provides the Commission with a substantially improved
understanding of where service is available and where it remains
lacking. The Updated National Broadband Map released on May 30, 2023,
shows the Fabric Version 2 location data and broadband availability
data as of December 31, 2022. The new map provides an improved picture
of where mobile broadband service is available, the type(s) of service
available, the speeds available, and the environment(s) in which
service is available. Historically, mobile data collected in FCC Form
477 suffered from a lack of any standardized parameters for the
submission of propagation maps. The Commission remedied this issue in
the BDC Second Report and Order, 85 FR 50886 (Aug. 18, 2020), by
adopting certain uniform minimum parameter values that it believed to
be equally important for demonstrating 3G and 5G NR coverage as well as
voice coverage, as recommended by the Rural Broadband Auctions Task
Force in the Mobility Fund Phase II Coverage Maps Investigation Staff
Report. The Commission stated that in addition to requiring mobile
broadband providers to use propagation modeling to generate and to
submit maps showing their 4G LTE coverage, such providers are
additionally required to submit information, data, and coverage maps
for existing 3G networks and next-generation 5G-NR networks. The new
map allows the Commission to more accurately target universal service
funding to expand broadband to unserved and underserved areas.
12. Figure 1 in the FNPRM, titled ``Areas Without Unsubsidized
Mobile Broadband Service,'' shows areas where mobile coverage data
submitted in the BDC show a lack of unsubsidized 5G mobile broadband
service at speeds of at least 7/1 Mbps by at least one service
provider, and areas where the data show a lack of unsubsidized 5/1 Mbps
4G LTE mobile broadband service or higher by at least one service
provider. Figure 1 was created using overlapping provider-reported BDC
mobile availability data as of December 31, 2022 (updated August 16,
2023), depicting coverage based on an outdoor stationary environment.
Figure 2 in the FNPRM, titled ``USAC Mobile CETC Service Area
Boundaries Map,'' shows a picture of the USAC's online map delineating
the boundaries of the subsidized service areas of each competitive ETC
receiving mobile legacy high-cost support used in determining which
areas are subsidized for this purpose. The Commission stated in the 5G
Fund Report and Order that it will use Geographic Information Systems
(GIS) data from the USAC delineating the boundaries of the subsidized
service areas of each competitive ETC receiving mobile legacy high-cost
support in determining which areas are subsidized for this purpose. The
FNPRM notes that California, Connecticut, Delaware, Florida, Hawaii,
Indiana, Maryland, Massachusetts, Minnesota, New Jersey, Ohio,
Pennsylvania, Rhode Island, Vermont, and Washington, DC do not have any
mobile legacy high-cost support service areas.
13. Figure 3 in the FNPRM, titled ``Percent of a State's Total Area
Within a Subsidized CETC Area and the Percent of Total High-Cost
Subsidy Directed to That State,'' and Figure 4 in the FNPRM, titled
``Percent of a State's Total Area Within the Subsidized Area of 1, 2,
3, or 4 CETCs,'' provide more detail about the distribution of mobile
legacy high-cost support by state.
14. With data collected in the BDC and currently reflected on the
National Broadband Map, the Commission is better able to assess where
mobile broadband services are--and are not--available. In the nearly
three years since the adoption of the 5G Fund Report and Order, the
deployment of high-speed 5G mobile services has significantly expanded.
However, even with this expansion of 5G coverage, the digital divide
remains, and numerous ``broadband deserts'' continue to exist. Indeed,
based on BDC data as of December 2022, the Commission estimates that
there are over 14 million broadband serviceable locations (locations)
that lack mobile 5G coverage at speed thresholds of at least 7/1 Mbps
in an in-vehicle environment. This estimate is based on overlapping
provider-reported BDC mobile availability data as of December 31, 2022,
depicting coverage based on in-vehicle, mobile environment, on
broadband serviceable locations. The Broadband Serviceable Location
Fabric (Fabric) is a dataset of all locations in the United States and
its Territories where fixed broadband internet access service can be
installed. Specifically, service providers express fixed broadband
availability in the BDC in terms of which particular Fabric
[[Page 66784]]
locations can be served. The Fabric therefore represents the universe
of locations to which fixed broadband service can be provided, and the
semi-annual BDC tells us which locations have fixed broadband service
available, and which do not. Locations are treated as lacking coverage
if they fall outside (the latitude/longitude coordinates are not
covered by) the areas reported by providers as having coverage
available with the relevant technology, speed, and environment. Mobile
availability based on coverage in an outdoor stationary environment
results in a smaller number of locations, 6 million, that lack 5G
coverage at speed thresholds of 7/1 Mbps. Given how mobile broadband
coverage has evolved over the past three years and the Commission's
improved understanding of mobile coverage based on data gathered
through the BDC, the Commission seeks comment on how to ensure that the
5G Fund most efficiently promotes the deployment of 5G mobile broadband
service in areas where it would not be offered absent subsidies. To
that end, the Commission seeks comment on whether it should continue to
use the definition adopted by the Commission in the 5G Fund Report and
Order to determine areas eligible for the 5G Fund Phase I auction, or
whether it should modify the definition to base the determination of
eligible areas on where mobile coverage data submitted in the BDC show
a lack of unsubsidized 5G broadband service by at least one service
provider.
15. As the map in Figure 1 in the FNPRM shows, the Commission
expects that using the definition of eligible areas adopted in the 5G
Fund Report and Order would result in fewer areas being eligible for
support in the 5G Fund Phase I auction than if the Commission modified
the definition to be based on areas that lack unsubsidized 5G coverage.
Given its objective of ensuring that it targets its finite budget to
where it is most needed to promote the deployment of 5G mobile
broadband service, the Commission seeks comment on whether using an
eligible areas definition that is more likely to limit, or more likely
to expand, the number of areas that would be eligible for support in
the 5G Fund Phase I auction serves the public interest. If the
Commission modifies the definition of eligible areas as discussed
above, would 5G Fund support be more likely to end up in areas that do
not have 5G service but do have unsubsidized 4G LTE service?
16. The Commission seeks comment on what motivations there are for
unsubsidized providers of 4G LTE service to upgrade their networks to
5G technology in rural areas. Does the provision of unsubsidized 4G LTE
service in rural areas serve as an indicator that 5G mobile broadband
service will be deployed in those areas absent subsidies? What metrics
can the Commission consider to reliably identify rural areas that will
not see unsubsidized 5G mobile broadband service? Over what time period
should the Commission expect to see an unsubsidized 4G LTE network be
replaced by 5G technology in rural areas, absent subsidies? Commenters
should specifically address why subsidies are, or are not, necessary in
areas that already have unsubsidized 4G LTE coverage. The Commission
also seeks comment on how it can balance its objective to provide
support for the provision of 5G mobile broadband service in all areas
where people live, work, and travel with its obligation to be a
fiscally responsible steward of its limited universal service funds and
the Commission's commitment to prevent overbuilding. What are the costs
and benefits of deployment of 5G mobile broadband service in areas
lacking both 4G LTE and 5G mobile broadband service relative to
deployment of 5G to areas lacking only 5G service? The Commission seeks
comment on which definition of eligible areas best ensures that the
Commission will not subsidize areas that will otherwise see
competitive, market-based deployments of 5G mobile broadband networks.
17. The Commission also seeks comment on the appropriate 4G LTE and
5G speed thresholds to use as the benchmark for determining areas
eligible for support in the 5G Fund Phase I auction under either the
previously adopted or a modified definition of eligible areas.
Specifically, the Commission seeks comment on using speed thresholds of
5/1 Mbps with respect to 4G LTE service and 7/1 Mbps for 5G service as
the benchmark when determining areas eligible for support in the 5G
Fund Phase I auction. The BDC collects 4G LTE coverage areas based on
speed thresholds of 5/1 Mbps in accordance with the Broadband DATA Act,
and collects 5G coverage areas based on speed thresholds of both 7/1
Mbps and 35/3 Mbps. In the 5G Fund Report and Order, the Commission
adopted a minimum baseline performance requirement for 5G Fund support
recipients to deploy 5G-NR service with median speeds of at least 35/3
Mbps and speeds of 7/1 Mbps at the cell edge. Consistent with the
Commission's rationale in the Mobility Fund Phase II Report and Order
with respect to determining eligible areas, the Commission does not
believe it would be advisable to use the same 35/3 Mbps speed
thresholds for determining areas eligible for 5G Fund support that it
will require of 5G Fund support recipients for determining compliance
with their performance requirements. Moreover, the Commission expects
that a speed threshold of 7/1 Mbps reflects the minimum desired typical
mobile user experience across broad 5G coverage areas. Under this
approach, if the Commission continues to use the definition of eligible
areas adopted in the 5G Fund Report and Order, it would exclude from
eligibility for 5G Fund support areas where unsubsidized 4G LTE service
and unsubsidized 5G service is available at speed thresholds of at
least 5/1 Mbps and at least 7/1 Mbps, respectively. Or, if the
Commission modifies the definition of eligible areas to be those that
lack unsubsidized 5G service, it would exclude from eligibility for 5G
Fund support areas where unsubsidized 5G service is available at speed
thresholds of at least 7/1 Mbps. The Commission seeks comment on using
these speed thresholds.
18. The Commission requires that the coverage maps submitted by
providers in the BDC predict 4G LTE and 5G coverage based on both
outdoor stationary and in-vehicle mobile environments. An outdoor
stationary environment typically results in a larger coverage footprint
than an in-vehicle mobile environment. The Commission seeks comment on
which environment to use when determining the areas eligible for 5G
Fund support under whichever definition it uses to determine areas
eligible for the 5G Fund Phase I auction.
19. Because it seeks to direct 5G Fund Phase I support to areas
where people live, work, and travel, regardless of the definition used
to identify the areas eligible for the 5G Fund Phase I auction, the
Commission seeks comment on limiting eligible areas to those that
contain locations and/or roads. The Commission would determine the
areas that contain locations using the Fabric; having the Fabric
through the BDC enables the Commission to do this at a granular level.
The Commission seeks comment on limiting eligible areas to those that
contain locations as identified through the BDC and/or roads. Under
this approach, the Commission would use road data from OpenStreetMap,
and seeks comment on which categories of roads should be considered in
determining eligible areas. The Commission also seeks comment on
whether it should use an alternate source of road data and why. In
order to limit eligible areas in this manner, the
[[Page 66785]]
Commission would need to designate the geographic areas that contain
locations and/or roads.
20. Under this approach, the Commission would use the H3 hexagonal
geospatial indexing system (H3 system) to identify specific geographic
areas eligible for 5G Fund support. H3 is an open-source GIS dataset
developed by Uber Technologies, Inc., that overlays the globe with
hexagonal cells of different sizes at various resolutions, from 0 to
15. The smallest hexagonal cells are at resolution 15, in which the
average hexagonal cell has an area of approximately 0.9 square meters,
and the largest are at resolution 0, in which the average hexagonal
cell has an area of approximately 4.25 million square kilometers. The
H3 system is designed with a nested structure wherein a lower
resolution cell (the ``parent'' hexagon) contains approximately seven
hexagonal cells at the next higher resolution (its ``children'' where
each ``child'' is a smaller, nested hexagon), which fit approximately
within the ``parent'' hexagon. In the BDC Mobile Technical Requirements
Order, 87 FR 21476 (Apr. 11, 2022), the Wireless Telecommunications
Bureau (WTB), OEA, and the Office of Engineering and Technology (OET)
adopted the H3 system to identify geographic areas where a challenge to
a provider's mobile BDC availability data can be created based on the
point locations of on-the-ground challenger speed tests. The H3 system
has also been adapted to the Commission's National Broadband Map to
divide the map into specific geographic areas and show the percentage
of a hexagon that is ``covered'' (i.e., where a provider has claimed it
can make broadband available) at different resolutions and levels of
granularity as a user zooms in or out on the map. Mobile broadband
coverage is displayed down to the resolution-9 hexagon level (hex-9) on
the map, and data on such coverage is made available for download based
on hex-9s. Because of its nested structure, using the H3 system allows
the Commission to categorize geographic areas at multiple levels of
granularity.
21. The Commission would then convert the areas eligible for 5G
Fund support to, and make them available in the form of, H3 hexagonal
units, specifically as hexagons at resolution 9. As opposed to ``raw''
coverage footprints based on propagation model output, which do not
conform to any defined boundary, hex-9s are standardized and can be
clearly identified and referenced. Because hex-9s are relatively small,
with an average area of approximately 0.1 square kilometer, any
reduction in map resolution when converting from raw propagation model
output (as filed by providers) to hex-9s is minimal. The Commission
believes the use of hex-9s can strike the appropriate balance between
the benefits of their use and this loss in granularity, particularly
given that the data as filed are based on models of coverage. As is the
case with the data available on the National Broadband Map, if any part
of the hex-9 is overlapped by the relevant mobile coverage area, then
the Commission would consider the entire hex-9 as covered or served by
that coverage area for purposes of generating the areas eligible for 5G
Fund support. The Commission seeks comment on this approach, as well as
the use of the H3 geospatial indexing system generally, and the hex-9
resolution specifically, as the basis for identifying specific
geographic areas that are eligible for 5G Fund support.
22. The Commission also seeks comment on other factors it should
consider in determining the areas eligible for 5G Fund support, such as
whether to include Urbanized Areas, water-only areas, and/or
inaccessible areas.
23. Regardless of how the Commission defines eligible areas, it
proposes to use as the basis for the final eligible areas the version
of the mobile availability data published on the National Broadband Map
no later than 30 days prior to the start of bidding. This version will
reflect updates filed by providers as the result of resolved challenges
and other corrections and published on the map by that date.
B. Puerto Rico and the U.S. Virgin Islands
24. As a result of the devastation to the communication networks in
Puerto Rico and the U.S. Virgin Islands caused by Hurricanes Irma and
Maria in September 2017, the Commission took immediate steps to make
emergency funding available for the restoration of mobile
communications on these islands, and subsequently adopted funding
mechanisms to restore and rebuild mobile networks there. In the 5G Fund
Report and Order, the Commission therefore excluded areas in Puerto
Rico and the U.S. Virgin Islands from eligibility for 5G Fund support
because the Commission was already providing high-cost support,
including support for 5G mobile broadband, through the Bringing Puerto
Rico Together Fund and the Connect USVI Fund.
25. In its 2019 PR-USVI Stage 2 Order, 84 FR 59937 (Nov. 7, 2019),
the Commission adopted a three-year funding period and budgets for
Stage 2 of the Bringing Puerto Rico Together Fund and the Connect USVI
Fund pursuant to which carriers could elect to receive up to 75% of the
support for which they are eligible to restore, harden, and expand
their networks using 4G LTE or better technology capable of providing
service at speeds of at least 10/1 Mbps, and up to 25% of the support
for which they are eligible to deploy 5G mobile networks capable of
providing service at speeds of at least 35/3 Mbps. The Commission noted
that it expected to establish a competitive funding mechanism for the
long-term expansion of advanced telecommunications access and next
generation wireless services for Puerto Rico and the U.S. Virgin
Islands by the conclusion of Stage 2. Stage 2 mobile support under the
Bringing Puerto Rico Together Fund and the Connect USVI Fund was
scheduled to conclude at the end of June 2023; however, in its April
2023 Transitional Support Report and Order, 88 FR 28993 (May 5, 2023),
the Commission adopted a transitional support period of up to 24 months
to allow eligible mobile carriers currently receiving Stage 2 mobile
support to continue receiving support to harden their networks as the
Commission works to develop a long-term funding mechanism. The
Commission stated in the Transitional Support Report and Order that
transitional support would end sooner than 24 months if such a long-
term funding mechanism were established before the transition period
ends.
26. At the time of Hurricanes Irma and Maria, the Mobility Fund
Phase II auction had not yet taken place. Moreover, the Commission has
since replaced Mobility Fund Phase II with the 5G Fund. Accordingly,
now, as the Commission transitions from providing restorative support
to mobile carriers in Puerto Rico and the U.S. Virgin Island to repair
and harden their networks to offering support to mobile carriers to
deploy high-speed 5G mobile services in areas that that would otherwise
not see such services absent subsidies, the Commission seeks comment on
whether to make 5G Fund support available to areas in Puerto Rico and
the U.S. Virgin Islands meeting the eligible areas definition, subject
to the same terms and conditions as 5G Fund support awarded in other
eligible areas. Alternatively, should the Commission instead explore a
dedicated long-term funding mechanism for support for mobile
[[Page 66786]]
services on these islands? Commenters should explicitly explain
whether, having been provided support under a dedicated mechanism for
the last several years, it is now appropriate to view the funding needs
for support for mobile broadband services in Puerto Rico and the U.S.
Virgin Islands through the same lens as other areas eligible for mobile
support.
IV. 5G Fund Budget
27. In the 5G Fund Report and Order, the Commission adopted a
budget of $9 billion for the 5G Fund, which incorporated and repurposed
the $4.53 billion originally budgeted for Mobility Fund Phase II. In
establishing the 5G Fund budget, the Commission recognized that
extending deployment of 5G networks would require significant
expenditures. Nonetheless, the Commission was mindful of its obligation
to balance the objectives of the 5G Fund with its obligation to
exercise fiscal responsibility by avoiding excessive subsidization,
recognizing that the cost of subsidies distributed under the 5G Fund
would ultimately be borne by consumers and businesses. Accordingly, the
Commission adopted a reverse auction mechanism to ensure that funds
from the available budget would be spent as efficiently and effectively
as possible.
28. The Commission takes this opportunity to ask if there are
significant reasons to modify the budget, and if so, by how much. The
Commission notes that none of the parties that commented on the 5G Fund
NPRM, 85 FR 31616 (May 26, 2020), proposed an alternative amount for
the 5G Fund budget, and no party sought reconsideration of the $9
billion budget that the Commission adopted. Some commenters, however,
suggested that the 5G Fund budget should be increased to an amount that
would be sufficient to deploy 5G networks to all eligible areas.
Subsequently, other parties, in ex parte communications and other
filings, echoed the assertion that the budget was insufficient, with
several citing to a 5G mobility cost model placed in the record by the
Competitive Carriers Association.
29. The Commission asks those commenting on the budget to keep in
mind the reasons underlying the Commission's adoption of a reverse
auction--the auction uses competition across areas and within areas to
determine which areas will receive support, in what amounts, and which
entities will receive that support, all within the available budget.
This ensures that as many units as possible can be covered within the
budget at prices the winning bidders have agreed to accept, consistent
with the Commission's fiscal responsibilities. As a threshold matter,
basing the budget on the estimated cost of serving all areas (however
estimated, according to a model such as that submitted in the record or
any other method) conflicts with the rationale for using a reverse
auction--that is, of spending available funds cost-effectively. Even if
the Commission was willing to increase universal service contributions
to raise such funds--and it is not--establishing a budget based on
total estimated costs would not result in support amounts that are
competitive but still acceptable to the providers, as a reverse auction
does. With respect to using a cost model to determine reserve amounts,
i.e., maximum bid amounts, also as suggested in the record, the
Commission does not believe such a process is needed to determine a
uniform starting clock price in dollars per adjusted square kilometer
that would apply to all areas. Moreover, the Commission disagrees with
the assertion in the record that a reverse auction without area-
specific reserve prices is likely to provide excessive support in areas
with few applicants. The reverse auction format previously used by the
Commission and adopted for the 5G Fund incorporates competition across
areas, which lowers the support price for all areas before assigning
support to any areas. Further, even if there is only one other bidder
for a given area, the support price will be lowered still further. That
is, under the basic reverse auction format, the support clock price
applicable to all areas would begin high and descend in discrete
rounds. In each round, bidders will indicate their willingness to
accept support for an area at iteratively lower clock prices. When the
total amount of support requested by bidders (counting an area only
once) falls to an amount that can be accommodated within the budget,
the areas that still have bids will receive support. Areas with a
single remaining bidder will be supported at the ``clearing price.'' If
there are areas where more than one bidder is still competing, the
support clock price will continue descending until a single bidder
remains, which will be supported at that price.
30. In seeking comment on the budget, the Commission asks
commenters to provide specific examples of any fundamental factors that
have changed since the 5G Fund Report and Order was adopted. Commenters
should also explain how any such factors are significant enough to
warrant allocating more Universal Service Fund (USF) monies to the 5G
Fund. Should any change in the budget affect both phases of the 5G
Fund, and if so, how? The Commission also asks, if the budget is
modified, whether the size of the Tribal reserve budget as previously
adopted should also change, and if so, how.
31. The Commission reminds those commenting on the 5G Fund budget
that the Commission is obligated to distribute universal service funds
in the most cost-efficient way possible and that arguments that focus
solely on estimates do not take into account the Commission's
obligation to balance the cost of subsidies with the additional burden
that such increased expenditures would impose on the consumers and
businesses that fund the subsidies. Therefore, commenters advocating
for an increased budget should consider and address the source of any
funds potentially allocated to the 5G Fund.
32. The Commission also seeks comment on whether any adjustments to
the 5G Fund budget would be necessary if the 5G Fund were to become the
long-term funding mechanism for Puerto Rico and the U.S. Virgin Islands
and areas in Puerto Rico and the U.S. Virgin Islands meeting the
eligible areas definition are eligible for 5G Fund support.
V. Accepting Bids and Identifying Winning Bids
A. Metric for Accepting Winning Bids and Identifying Winning Bids
33. In the 5G Fund Report and Order, the Commission decided that it
would accept bids and identify winning bids in the 5G Fund auctions
using a support price per adjusted square kilometer. Under this metric,
each eligible area would be associated with a number of units equal to
the square kilometers of the area multiplied by an adjustment factor
based on a number of area-specific characteristics, including terrain
and elevation, and demand-related factors, such as income, gross
domestic product (GDP), and population density. Adjustment factor
values adopted in the Adjustment Factor Values Public Notice, 86 FR
11149 (Feb. 24. 2021), ranged from 1 to 3.8, with higher adjustment
factors associated with more sparsely populated areas and/or forested
and mountainous areas and lower average incomes. However, the
Commission also determined that the 5G Fund auction would wait for the
more precise data on ``areas of the country where support is most
needed and will be spent most efficiently'' that would be forthcoming
from the BDC.
[[Page 66787]]
34. The Commission seeks comment in the FNPRM on limiting eligible
areas to resolution-9 H3 hexagons that have locations and/or roads. If
the Commission were to limit eligible areas to resolution-9 H3 hexagons
that have locations and/or roads, it would use a bidding and support
price metric based on dollars per square kilometer for those eligible
areas. Accordingly, the support amount for an area would be determined
as the number of square kilometers associated with the area times the
price at which support is assigned. The Commission seeks comment on
whether to use the adjustment factor as previously adopted. The
adjustment factor was designed to equalize the cost of serving all
areas, so that it would be equally likely that particularly costly
areas (defined, in part, by low population density and difficult
terrain) and areas that can be served more cost-effectively would win
support. Moreover, he Commission seeks comment on whether a support
unit in terms of square kilometers alone--absent the adjustment that
would have given priority to areas with low incomes, low population
density, and costly terrain--would, to the greatest extent possible,
promote its goal of providing 5G coverage to places where people live,
work, and travel. The Commission also seeks comment on whether it
should adopt an alternative approach that would provide some advantage
to particularly costly areas that nonetheless are areas with a
considerable number of homes, business, and other locations, and/or
roads that are frequently travelled. Could parameters for an
alternative approach be determined without unduly delaying the auction?
35. As an alternative to using dollars per square kilometer as the
bidding and support price metric, the Commission also seeks comment on
using a bidding and support price metric based on the number of
locations in the eligible areas. If the Commission were to adopt this
metric, eligible areas would be associated with a number of such
locations in the area; the clock would announce prices in terms of
dollars per location; and support amounts would be calculated as the
number of locations in the area times the support price per location.
36. The Commission also seeks comment on potentially incorporating
the number of unserved road miles in an area, as well as the number of
locations, into the bidding and support price metric. What source of
road data and which road categories should the Commission use? How
could the Commission do so in a way that would appropriately balance
unserved road miles and unserved locations in a single metric? For
example, could the Commission adjust the number of locations upward by
a fraction, e.g., 25%, in an area with a moderate number of unserved
road miles, and by a larger fraction, e.g., 40%, if the area has a
large number of unserved road miles? Or, would a metric that is a
weighted sum of unserved locations and unserved road miles be
appropriate? For example, a metric might be the total of the number of
unserved locations and one half of the number of unserved road miles.
If the Commission were to use such a hybrid metric, would covering an
unserved road mile be more or less preferred than covering a location?
How would the Commission determine the appropriate weights? Commenters
should keep in mind that the weights would not have to be precisely
calculated, but simply represent the extent to which the auction
mechanism would put a ``finger on the scale.''
37. Limiting eligible areas to those areas that have unserved road
miles and/or unserved locations would reflect the Commission's goal of
providing support to areas where people live, work, and travel. If the
Commission uses a bidding and support metric of dollars per square
kilometer, are there other ways to incorporate incentives to bid for
areas covering unserved locations and road miles, such as by requiring
winning bidders' support obligations to include unserved locations and
road miles? A bidder would know the extent of its obligations in
advance of the auction and could adjust accordingly the amount of
support in terms of dollars per square kilometer that it is willing to
accept. Are there other ways to encourage coverage of locations and
road miles without explicitly incorporating them into the metric?
Commenters should consider that a suggested approach should be
transparent and straightforward to measure.
38. The Commission also seeks comment on a possible metric based on
predicted usage from serving eligible areas. This metric would consider
all measurable factors that can affect mobile usage, such as unserved
locations, road miles, and areas with parks or wilderness where devices
are likely to be used. For such an approach, the Commission would need
to consider what data are available that would enable us to make useful
predictions of usage. If the Commission were to use this usage-based
approach, how should usage be measured? One possible measure of usage
would be the average number of connected 5G devices in 15-minute
periods throughout the day. Another possible measure of usage would be
total megabytes of data usage during a reporting period. Similar to the
approaches used to generate the adjustment factor that was adopted in
the 5G Fund Report and Order, such data could be used in a regression
or another modeling approach to generate weights for each eligible area
based on predicted usage.
B. Minimum Geographic Area for Bidding
39. In the 5G Fund Report and Order, the Commission concluded that
``the minimum geographic area for bidding--i.e., the geographic area by
which areas eligible for support for 5G Fund support will be grouped
for bidding--in a 5G Fund auction will be no larger than a census tract
and no smaller than a census block group, as designated by the U.S.
Census Bureau.'' Census tracts and census block groups are practical
units for aggregation when starting with census blocks, as, for
example, in the Rural Digital Opportunity Fund. As discussed in the
FNPRM, the Commission would convert the areas eligible for the 5G Fund
to, and make them available in the form of, hex-9s. The Commission
could then group the eligible hex-9s into larger geographic areas for
purposes of bidding. For example, the Commission could have the
geographic bidding unit be all of the eligible hex-9s that overlap a
census tract or census block group. Alternatively, eligible hex-9s
could be aggregated to another geographic area, such as the H3
hexagonal geospatial indexing system resolution-5 hexagon level (hex-
5s). The Commission seeks comment on what aggregation scheme would be
an efficient and appropriate way to group eligible hex-9s for bidding.
VI. Compliance With 5G Fund Public Interest Obligations and Performance
Requirements
A. Metric for Measuring Compliance With 5G Fund Public Interest
Obligations and Performance Requirements
40. The Commission adopted interim and final service deployment
milestones for 5G Fund support recipients in the 5G Fund Report and
Order to ensure that they meet their public interest obligations and
performance requirements in areas where they receive support. The
Commission's proposal to use dollars per square kilometer as the
bidding and support price metric is consistent with this approach. If
the Commission decides to modify the bidding and support price
[[Page 66788]]
metric for the 5G Fund auctions to use a metric that targets locations
(and possibly road miles), as discussed above, the Commission would
need to make corresponding modifications to the rules adopted in the 5G
Fund Report and Order concerning the metric that would be used to
measure a 5G Fund support recipient's compliance with its public
interest obligations and performance requirements.
41. Under this approach, if the Commission adopts a different
bidding and support price metric, it would likely adopt the same metric
for measuring compliance. For example, if the Commission were to use a
locations-based metric without a road miles component, the Commission
would measure compliance based on a support recipient deploying service
that meets the 5G Fund performance requirements to a specified
percentage of the total locations within the eligible areas for which
it is authorized to receive 5G Fund support in a state by the relevant
interim service milestone and the final service milestone. Or, if the
Commission were to use a hybrid metric that incorporates locations and
road miles, it would measure compliance based on a support recipient
deploying service that meets the 5G Fund performance requirements to a
specified percentage of the total unserved locations and a specified
percentage of the total unserved road miles within the eligible areas
for which it is authorized to receive 5G Fund support in a state by the
relevant interim service milestone and the final service milestone.
However, an exception to the approach of adopting the same metric for
measuring compliance if the Commission adopts a different bidding and
support price metric would be if the Commission were to adopt an
alternative approach to encouraging coverage of unserved road miles by
using a metric based on locations alone, but require coverage of road
miles as well as locations as part of the winner's obligations.
42. The Commission seeks comment on its approach to harmonizing the
metric it uses to measure a 5G Fund support recipient's compliance with
its public interest obligations and performance requirements should the
Commission decide to modify the bidding and support price metric
adopted in the 5G Fund Report and Order.
43. The Commission also seeks comment on whether, in determining
the metric it uses to measure a 5G Fund support recipient's compliance
with its public interest obligations and performance requirements, the
Commission should also consider how any such metric might allow us to
account for the impact of the Broadband Equity, Access, and Deployment
(BEAD) Program and other Federal and state broadband infrastructure
investments, if any, on the deployment of mobile broadband. Given that
the BEAD Program does not provide funding for mobile broadband
deployment, the Commission seeks comment on whether its proposals
herein, together with the rules and procedures already adopted for the
5G Fund, are sufficient to ensure that the Commission efficiently and
effectively facilitates the deployment of mobile broadband service to
those areas where support is most needed. Furthermore, the Commission
seeks comment on whether the use of a metric that targets locations
and/or road miles to measure a 5G Fund support recipient's compliance
with its public interest obligations and performance requirements
provides us with the ability to determine if, and how, mobile broadband
deployment supported through the 5G Fund complements other federally
funded buildout efforts and investments in broadband infrastructure.
Finally, the Commission seeks comment on steps it can take to ensure
that any final decision here is taken in coordination and with due
consideration for the other various broadband infrastructure funding
initiatives underway.
B. Methodologies for Demonstrating Compliance With 5G Fund Performance
Requirements
44. In the 5G Fund Report and Order, the Commission decided to
generally align the framework for 5G Fund support recipients'
demonstration of compliance with their 5G Fund interim and final
performance requirement milestones with the BDC, concluding that
standardizing the data required for compliance reporting was likely to
ease the burden on support recipients throughout universal service
programs, while collecting sufficient data to confirm that the 5G
Fund's requirements have been met. To that end, the Commission adopted
a requirement that 5G Fund support recipients certify at the
established interim and final service deployment milestones that their
5G mobile broadband coverage data reflects deployments in the eligible
areas for which they are authorized to received 5G Fund support, and
also adopted a requirement that 5G Fund support recipients conduct on-
the-ground measurement tests to substantiate their 5G broadband
coverage data pursuant to methodologies for conducting such testing and
validating the test results and file that data in the BDC portal.
Rather than adopting customized 5G Fund testing requirements, the
Commission decided to adopt test metrics, data specifications, and
permitted testing applications that are at least as stringent as those
adopted for governmental and third party challenges in the BDC as a
minimum for the on-the ground tests required for the 5G Fund. With
respect to the methodologies for conducting on-the-ground tests, the
Commission decided that a 5G Fund support recipient must submit on-the-
ground measurement tests with at least three tests conducted per square
kilometer, measured by overlaying a uniform grid of one square
kilometer (1 km by 1 km) on its submitted 5G coverage maps within the
area for which 5G Fund support was awarded in a percentage of all
drive-testable grid cells where the recipient reports deployment of 5G
service by the applicable service deployment milestone. The minimum
percentage of drive-testable grid cells tested must equal the minimum
percentage of coverage required for each service buildout milestone
(i.e., 40%, 60%, 80%, 85%).
45. The Commission proposes to modify the methodologies that
support recipients would use to substantiate their 5G broadband
coverage certifications in the areas for which they receive 5G Fund
support in order to be consistent with both its proposal to use
hexagonal areas as the basis for the areas eligible for 5G Fund support
and the Commission's decision in the 5G Fund Report and Order to
generally align the framework for demonstrating compliance with 5G Fund
performance requirement milestones with the BDC. Specifically, the
Commission proposes requiring 5G Fund support recipients to use the
methodologies adopted for the BDC mobile verification process as the
basis for substantiating coverage and demonstrating compliance with the
5G Fund interim and final deployment milestones adopted in the 5G Fund
Report and Order. Under the requirements for the BDC mobile
verification process, mobile providers can submit either on-the-ground
test data or infrastructure data to verify coverage in response to a
mobile verification request from the Commission. The Commission may
then use the infrastructure data to generate a predicted coverage area
using propagation modeling software. The Commission seeks comment on
this proposal and, in particular, whether 5G Fund support recipients
should be required to submit on-the-ground test
[[Page 66789]]
data for areas that are accessible and infrastructure data for areas
that are inaccessible. Should they submit infrastructure data
sufficient to generate a ``core coverage area,'' as defined in the BDC
mobile verification process, and on-the-ground test data for areas
outside of such a core coverage area? Alternatively, should providers
be allowed to submit either type of data regardless of the type of area
in which they are deploying service?
46. If a provider chooses to submit on-the-ground test data in
response to a BDC mobile verification request, it must provide such
data based on a sample of on-the-ground tests that is statistically
appropriate for the area tested. The sampled area is based on H3
resolution-8 hexagonal areas, and the provider must submit the results
of at least two tests within each hexagon, and the time of the tests
must be at least four hours apart, irrespective of date. The BDC rules
provide that a provider must submit the results of at least two tests
``unless, for any sampled hexagon, the provider has and submits
alongside its speed tests actual cell loading data for the cell(s)
covering the hexagon sufficient to establish that median loading,
measured in 15-minute intervals, did not exceed the modeled loading
factor for the one-week period prior to the verification inquiry, in
which case the provider is required to submit only a single test for
the sampled hexagon.'' See 47 CFR 1.7006(c). The tests are then
evaluated to confirm, using a one-sided 95% statistical confidence
interval, that the cell coverage is 90% or higher. The Commission
proposes to use a methodology for support recipients to demonstrate
compliance with their 5G Fund performance requirement milestones that
is similar to that adopted for the BDC mobile verification process,
except that 5G Fund support recipients would not submit speed data
based on a sample of areas, but for all supported areas subject to the
on-the-ground testing requirement, and the area would be hex-9 instead
of a hex-8. Under this approach, a 5G Fund support recipient's
cumulative test data will be required to show that at least 90% of
measurements report 5G service at download and upload speeds of at
least 7/1 Mbps and median download and upload speeds of at least 35/3
Mbps, and that at least 90% of tests record data latency of 100
milliseconds or less at the cell edge, as adopted in the 5G Fund Report
and Order for each of the support recipient's interim and final
deployment milestones. The Commission seeks comment on this approach.
Do commenters believe that more tests or fewer tests should be required
within a hexagonal area? Should the tests be spaced further than four
hours apart or closer together?
47. If a provider chooses to submit infrastructure data in response
to a BDC mobile verification request, it must submit additional
information beyond what is submitted as part of its biannual BDC
availability data (propagation modeling details, as well as link budget
and clutter data), including cell-site and antenna data for the
targeted area. The Commission proposes to require 5G Fund support
recipients to submit the same additional infrastructure data as is
required in the BDC mobile verification process to substantiate
coverage in the areas for which they receive 5G Fund support. The
Commission seeks comment on this approach.
VII. Schedule for Transitioning From Mobile Legacy High-Cost Support to
5G Fund Support
48. In the 5G Fund Report and Order, as part of its determination
that the 5G Fund constitutes a comprehensive mechanism for mobile high-
cost support that would serve as the alternative to Mobility Fund Phase
II, the Commission concluded that it would commence the phase down of
legacy mobile high-cost support in areas that are ineligible for 5G
Fund support as soon as those areas were finalized. In the Consolidated
Appropriations Act of 2023, Public Law 117-328, Div. E, Title VI 624,
136 Stat. 4459, 4702, however, Congress amended the language that
allowed the Commission to consider support mechanisms as alternatives
to Mobility Fund Phase II to further provide that any such alternative
mechanism maintain existing high-cost support to competitive eligible
telecommunications carriers until support under such mechanism
commences. Accordingly, the Commission proposes to treat the release of
the public notice announcing the close of the 5G Fund Phase I auction
to be the point at which support under the 5G Fund commences. The
Commission seeks comment on this proposal. The Commission also seeks
comment on whether the appropriations rider requires the Commission to
modify or consider any other changes to aspects of its plan for
transitioning from mobile legacy high-cost support to 5G Fund support.
Commenters should provide support for any interpretation they offer and
how the public interest is best served by any such interpretation.
VIII. Certification of Notice of 5G Fund Phase I Auction Requirements
and Procedures
49. The Commission proposes to adopt a requirement for the 5G Fund
Phase I auction that each auction applicant certify, under penalty of
perjury, that it has read the public notice adopting procedures for the
auction, and that it has familiarized itself with those procedures and
any requirements, terms, and conditions associated with receipt of 5G
Fund support. As with other required certifications, an auction
applicant's failure to make the required certification in its short-
form application by the applicable filing deadline would render its
application unacceptable for filing, and its application would be
dismissed with prejudice.
50. Prior to the deadline by which an interested party must submit
a short-form application to participate in a given auction, a public
notice is released announcing the procedures for the auction. This
``Procedures Public Notice'' describes in detail both the requirements
for participating in the auction and the procedures that will be used
to conduct all stages of the auction. The Commission has a longstanding
policy that expressly places a burden upon each applicant to be
thoroughly familiar with the procedures, terms, and conditions
contained in the relevant Procedures Public Notice and any future
public notices that may be released in the auction proceeding. In
recent spectrum auctions the Commission and OEA, in conjunction with
the WTB and the Media Bureau, have reinforced this policy by adopting,
as part of the procedures for those auctions, a requirement that each
auction participant certify, under penalty of perjury, that it has read
the Procedures Public Notice for the auction in question, and that it
has familiarized itself with the auction procedures and with the
requirements related to the licenses made available for bidding. In
adopting this certification requirement for prior Commission auctions,
the Commission noted that it was intended to bolster applicants'
efforts to educate themselves to the greatest extent possible about the
procedures for auction participation and to ensure that, prior to
submitting their short-form applications, applicants understood their
obligation to stay abreast of relevant, forthcoming information. The
Commission further reasoned that familiarity with the Commission's
rules and procedures governing the auctions would help bidders avoid
the consequences to them associated with
[[Page 66790]]
defaults, which also cause harm to other applicants and the public by
reducing the efficiency of the auction process and reducing the
likelihood that the license or construction permit will be assigned to
the bidder that values it the most. The Commission has also previously
expressed in the context of spectrum auctions that the certification
requirement will help ensure that an auction applicant has investigated
and evaluated those technical and marketplace factors that may have a
bearing on its potential use of any licenses won at auction.
51. The Commission believes that applicants for universal service
support in the 5G Fund Phase I auction would benefit from a similar
certification because, as is the case with its spectrum auctions,
familiarity with the rules and procedures governing the 5G Fund Phase I
auction would help bidders avoid the consequences to them associated
with defaults, which also cause harm to other applicants and the public
by reducing the efficiency of the auction process. The Commission also
believes that such certification would promote the integrity of and
public confidence in the Commission's auction processes as well as
ensure that 5G Fund Phase I support recipients are aware of and better
prepared to comply with their public interest obligations and
performance requirements. The Commission therefore proposes to adopt
this requirement for the 5G Fund Phase I auction and seeks comment on
this proposal. The Commission seeks comment on any alternative
procedures that could be implemented that would better ensure that an
applicant has thoroughly reviewed the auction's procedures and
considered all relevant factors that may affect its participation in
the auction and use of any support for which it is the winning bidder.
IX. Cybersecurity and Supply Chain Risk Management
52. The Commission seeks comment on whether to require 5G Fund
support recipients to implement cybersecurity and supply chain risk
management plans as a condition of receiving 5G Fund support. In the
Enhanced Alternative Connect America Cost Model Report and Order, 88 FR
55918 (Aug. 17, 2023) (Enhanced A-CAM Report and Order), the Commission
adopted a requirement that wireline providers receiving funds through
the Enhanced Alternative Connect America Cost Model (Enhanced A-CAM)
program implement such plans prior to the start of the program's
support term, and that they submit their plans to USAC and certify that
they have done so by the established deadline; a failure to submit the
plans and make the certification will result in 25% of monthly support
being withheld until the carrier comes into compliance. The Commission
sought comment in the Enhanced Alternative Connect America Cost Model
Notice of Proposed Rulemaking, 87 FR 36283 (June 16, 2022), on whether
to adopt cybersecurity and supply chain risk management requirements
for Enhanced A-CAM carriers or, alternatively, for all carriers
receiving high-cost support, but decided the to adopt cybersecurity and
supply chain risk management requirements only for Enhanced A-CAM
carriers in the Enhanced A-CAM Report and Order because the record
contained sparse comment on whether to extend these requirements to
other high-cost programs. In adopting this requirement for Enhanced A-
CAM carriers, the Commission stated that its actions emphasize the
critical importance of cybersecurity and supply chain risk management
in modern broadband networks, consistent with broader initiatives
across the Federal Government, and reasoned that a risk management
requirement was necessary to ensure that the program does not deprive
rural consumers in high-cost areas of broadband service that is as
secure as the service deployed pursuant to other Federal funding
initiatives. Specifically, the Commission seeks comment on whether 5G
Fund support recipients should be required to implement a cybersecurity
risk management plan that reflects the latest version of the NIST
Framework for Improving Critical Infrastructure Cybersecurity, and that
reflects an established set of cybersecurity best practices, such as
the standards and controls set forth in the Cybersecurity &
Infrastructure Security Agency (CISA) Cybersecurity Cross-sector
Performance Goals and Objectives or the Center for internet Security
Critical Security (CIS) Controls. The Commission also seeks comment on
whether these carriers should be required to implement supply chain
risk management plans that incorporate the key practices discussed in
NISTIR 8276, Key Practices in Cyber Supply Chain Risk Management
Observations from Industry, and related supply chain risk management
guidance from NIST 800-161. Would it be appropriate for 5G Fund
recipients to submit to USAC their updated cybersecurity and supply
chain risk management plans within 30 days of making a substantive
modification thereto, as Enhanced A-CAM recipients must? What are the
differences (if any) between 5G Fund recipients and Enhanced A-CAM
recipients that might warrant different approaches to ensuring
cybersecurity?
X. Use of Open Radio Access Network Technologies in 5G Fund Supported
Networks
53. The Commission seeks comment on whether it should use the 5G
Fund to encourage the deployment of Open RAN, and if so, how. In its
March 2021 Open RAN NOI, 86 FR 16349 (Mar. 29, 2021), the Commission
sought input on whether, and if so, how, deployment of Open RAN-
compliant networks could further the Commission's policy goals and
statutory obligations, advance legislative priorities, and benefit
American consumers by making state-of-the-art wireless broadband
available faster and to more people in additional parts of the country.
Soon after the Open RAN NOI was adopted, the President signed Executive
Order 14036, E.O. 14036, 86 FR 36987 (Jul. 14, 2021), which encouraged
the Commission to consider providing support for the continued
development and adoption of 5G Open Radio Access Network protocols and
software. The Commission has since sought comment in its Enhanced
Competition Incentive Program Further Notice of Proposed Rulemaking, 86
FR 74024 (Dec. 29, 2021), on whether and how the Commission should
factor the use of Open RAN technologies into the Enhanced Competition
Incentive Program, noting that Open RAN has the potential to allow
carriers to promote the security of their networks while driving
innovation, in particular in next-generation technologies like 5G,
lowering costs, increasing vendor diversity, and enabling more flexible
network architecture.
54. The Commission considers here whether and if so, how, this 5G
Fund proceeding should promote the continued deployment of Open RAN
technologies in networks built with 5G Fund support. The Radio Access
Network (RAN) is the portion of the wireless telecommunication system
that connects user devices (e.g., mobile phones) with the core network
that performs routing or delivery of content. Open RAN is a term that
describes a general disaggregation of RAN functionality built using
open interface specifications between elements instead of proprietary
specifications. Open RAN can be implemented in vendor-neutral hardware
and software-defined technology based on open interfaces and community-
developed standards providing a flexible and interoperable deployment
architecture across multiple
[[Page 66791]]
vendors. As noted above, the Commission seeks comment on whether it
should use the 5G Fund to encourage the deployment of Open RAN, and if
so, how. The Commission also seeks comment on whether the 5G Fund could
be an appropriate vehicle by which to further the goals outlined in
Executive Order 14036 and if so, what the best mechanism(s) for doing
so might be. For example, would deploying Open RAN networks require
more time such that the Commission should afford a 5G Fund support
recipient an extension of the interim and/or final service milestone
deadlines if it demonstrates that it is using Open RAN in its network
deployment? If the Commission does adopt such an incentive to encourage
the use of Open RAN technologies, how would a support recipient
demonstrate compliance with a requirement to implement those
technologies, and how would the Commission measure a support
recipient's continued compliance with such a requirement? Would
supporting the deployment of Open RAN be consistent with the
Commission's objective to efficiently and effectively distribute finite
universal service support?
XI. Promoting Digital Equity and Inclusion
55. The Commission, as part of its continuing effort to advance
digital equity for all, including for people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comment on any
equity-related considerations and benefits (if any) that may be
associated with the proposals and issues discussed herein. The term
``equity'' is used here consistent with Executive Order 13985, E.O.
13985 (Jan. 20, 2021), as the consistent and systematic fair, just, and
impartial treatment of all individuals, including individuals who
belong to underserved communities that have been denied such treatment,
such as Black, Latino, and Indigenous and Native American persons,
Asian Americans and Pacific Islanders and other persons of color;
members of religious minorities; lesbian, gay, bisexual, transgender,
and queer (LGBTQ+) persons; persons with disabilities; persons who live
in rural areas; and persons otherwise adversely affected by persistent
poverty or inequality. Specifically, the Commission seeks comment on
how its proposals may promote or inhibit advances in diversity, equity,
inclusion, and accessibility, as well the scope of the Commission's
relevant legal authority to address any such issues.
XII. Procedural Matters
56. Paperwork Reduction Act. This FNPRM does not contain proposed
new or modified information collection requirements subject to the
Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition,
therefore, this FNPRM does not contain any new or modified information
collection burden for small business concerns with fewer than 25
employees, pursuant to the Small Business Paperwork Relief Act of 2002,
44 U.S.C. 3506(c)(4).
57. Regulatory Flexibility Act. As required by the Regulatory
Flexibility Act of 1980, as amended (RFA), 5 U.S.C. 603, the Commission
has prepared a Supplemental Initial Regulatory Flexibility Analysis
(Supplemental IRFA) of the possible significant economic impact on a
substantial number of small entities from the policies and rules
proposed in the FNPRM to supplement the Commission's Regulatory
Flexibility Analyses completed in the 5G Fund NPRM and 5G Fund Report
and Order. The Commission requests written public comment on this
Supplemental IRFA. Comments must be identified as responses to the
Supplemental IRFA and must be filed by the deadlines for comments on
the FNPRM. The Commission will send a copy of the FNPRM, including the
Supplemental IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, the FNPRM and Supplemental
IRFA (or summaries thereof) will be published in the Federal Register.
58. The new, granular, and more accurate mobile coverage data
obtained in the BDC and reflected on the Commission's new National
Broadband Map allows the Commission to continue the implementation of
the 5G Fund and advance its efforts to ensure the deployment of high-
speed 5G service in areas of the country where, absent subsidies, it
will continue to be lacking. The Commission undertakes this effort in
the FNPRM in recognition that those living, working, and travelling in
unserved and underserved areas must have access to high-speed 5G
service. Mobile services that may have once been considered a luxury by
some have become a necessity for all Americans. The need for such
services has never been more critical, yet not only are there people in
many areas of the country that continue to lack access to 5G services,
Americans in some rural areas still lack access to any broadband
service at all.
59. In its narrowly tailored FNPRM, the Commission seeks to refresh
the record and reignite the Commission's plan to expand the deployment
of 5G service to those rural communities that remain trapped on the
wrong side of the digital divide. The Commission seeks comment on a
limited set of proposals and other issues that are critical to the 5G
Fund's success, including: (1) defining the areas that will be eligible
for 5G Fund support; (2) reassessing the budget for the 5G Fund; (3)
potentially reconsidering the use of adjusted square kilometers as the
metric for accepting bids and identifying winning bids in a 5G Fund
auction; (4) aggregating areas eligible for 5G Fund support to minimum
geographic areas for bidding; (5) measuring a 5G Fund support
recipient's compliance with its public interest obligations and
performance requirements based on any modified metric for accepting
bids and identifying winning bids; (6) modifying the schedule for
transitioning from mobile legacy high-cost support to 5G Fund support
consistent with recent legislative amendments; (7) a proposal to
require each 5G Fund Phase I auction applicant to certify, under
penalty of perjury, that it has read the public notice adopting
procedures for the auction, and that it has familiarized itself with
those procedures and any requirements related to the support made
available for bidding in the auction; (8) whether to require 5G Fund
support recipients to implement cybersecurity and supply chain risk
management plans; and (9) determining whether and how this proceeding
might create an opportunity to support further deployment of Open RAN
technologies.
60. Based on data obtained in the BDC and currently reflected on
the National Broadband Map, the Commission's understanding of where
mobile service remains lacking has improved significantly and it now
seeks comment on whether to modify the definition of eligible areas
adopted in the 5G Fund Report and Order. Specifically, the Commission
seeks comment on whether it should continue to use the definition
adopted by the Commission in the 5G Fund Report and Order to determine
areas eligible for the 5G Fund Phase I auction, or whether it should
modify the definition to base the determination of eligible areas on
where mobile coverage data submitted in the BDC show a lack of
unsubsidized 5G broadband service by at least one service provider.
Regardless of how the Commission defines the areas eligible for 5G Fund
support, it proposes to use as the basis for the final eligible areas
the version of
[[Page 66792]]
the mobile availability data published on the National Broadband Map
approximately 30 days prior to the start of bidding. Because the
Commission seeks to direct 5G Fund support to areas where people live,
work, and travel, regardless of the definition used to identify the
areas eligible for the 5G Fund Phase I auction, it seeks comment on
limiting eligible areas to those that contain locations and/or roads
that lack unsubsidized 5G service. The Commission would then use the H3
hexagonal geospatial indexing system (H3 system) to identify specific
geographic areas eligible for 5G Fund support, limiting eligible areas
to resolution-9 H3 hexagons that have locations and/or roads. If the
Commission were to limit eligible areas to resolution-9 H3 hexagons
that have locations and/or roads, it would use a bidding and support
price metric based on dollars per square kilometer for those eligible
areas and seek comment on whether to use the adjustment factor as
previously adopted.
61. The Commission also proposes to modify the methodologies that
support recipients would use to substantiate their 5G broadband
coverage certifications in the areas for which they receive 5G Fund by
requiring 5G Fund support recipients to use the methodologies adopted
for the BDC mobile verification process as the basis for substantiating
coverage and demonstrating compliance with the 5G Fund interim and
final deployment milestones. Finally, the Commission proposes to treat
the release of the public notice announcing the close of the 5G Fund
Phase I auction to be the point at which support under the 5G Fund
commences. The Commission believes these proposals make the best use of
its National Broadband Map and will facilitate its policy goals of
achieving ubiquitous high-speed broadband coverage, providing rural
areas with access to mobile services reasonably comparable to those
provided in urban areas, and ensuring that all Americans have access to
5G service where they live, work, and travel.
62. Additionally, the Commission proposes to require each 5G Fund
Phase I auction applicant to certify, under penalty of perjury, that it
has read the public notice adopting procedures for the auction, and
that it has familiarized itself with those procedures and any
requirements related to the support made available for bidding in the
auction. The Commission believes that such a certification would
promote the integrity of and public confidence in the Commission's
auction processes as well as ensure that 5G Fund Phase I support
recipients are aware of and better prepared to comply with their public
interest obligations and performance requirements.
63. Access to high-speed, mobile services touches almost all
aspects of daily life and is essential to civic, economic, and social
opportunities for those living and working in rural areas as well as in
big cities and suburban areas. The ability to communicate and innovate
through access to high-speed, mobile broadband services is a necessity
for work, education, healthcare, news and entertainment, public safety
information and services, and communication during a national emergency
or other crisis. Thus, the importance of expanding access to high-speed
5G services in rural communities cannot be overstated. With this in
mind, the Commission issued the FNPRM cognizant that full participation
in American society requires us to make 5G service available to
everyone no matter where they live.
64. The legal basis for any action that may be taken pursuant to
the FNPRM is authorized pursuant to sections 4(i), 214, 254, 303(r),
and 403 of the Communications Act of 1934, as amended, 47 U.S.C.
154(i), 214, 254, 303(r), and 403, and Sec. Sec. 1.1 and 1.421 of the
Commission's rules, 47 CFR 1.1 and 1.421.
65. The RFA directs agencies to provide a description of, and,
where feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act. A ``small-business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
66. Regulatory Flexibility Analyses were incorporated into the 5G
Fund NPRM and 5G Fund Report and Order. In those analyses, the
Commission described in detail the small entities that might be
significantly affected. In this Supplemental IRFA, the Commission
hereby incorporates by reference the descriptions and estimates of the
number of small entities from the previous Regulatory Flexibility
Analyses in the 5G Fund NPRM and 5G Fund Report and Order.
67. Possible modification to some of the compliance requirements
adopted in the 5G Fund Report and Order that may be necessary based on
the proposals and/or the other issues on which the Commission seeks
comment in the FNPRM could impact the reporting, recordkeeping, and
other compliance requirements for small and other providers that
receive 5G Fund support.
68. In the 5G Fund Report and Order, the Commission decided that it
would accept bids and identify winning bids in the 5G Fund auctions
using a support price per adjusted square kilometer, and adopted
interim and final service deployment milestones for small and other 5G
Fund support recipients to ensure that all support recipients meet
their public interest obligations and performance requirements in areas
where they receive support. If the Commission decides to modify the
bidding and support price metric for the 5G Fund auctions to use a
metric other than square kilometers and makes corresponding
modifications to the rules adopted in the 5G Fund Report and Order
concerning the metric that would be used to measure a 5G Fund support
recipient's compliance with its public interest obligations and
performance requirements, small and other providers that receive 5G
Fund support will be required to use a different metric than what was
adopted in the 5G Fund Report and Order for purposes of measuring and
reporting compliance with the 5G Fund public interest obligations and
performance requirements.
69. The Commission decided to generally align the framework for 5G
Fund support recipients' demonstration of compliance with their 5G Fund
interim and final performance requirement milestones with the BDC in
the 5G Fund Report and Order, concluding that standardizing the data
required for compliance reporting was likely to ease the burden on
support recipients throughout universal service programs, while
collecting sufficient data to confirm that the 5G Fund's requirements
have been met. With respect to the methodologies for conducting on-the-
ground tests, the Commission decided in the 5G Fund Report and Order
that a 5G Fund support recipient must submit on-the-ground measurement
tests with at least three tests conducted per square kilometer,
measured by overlaying a uniform grid of one square kilometer (1 km by
1 km) on its submitted 5G coverage maps within the area for which 5G
Fund support was awarded in a percentage of all drive-testable grid
cells where the recipient reports deployment of 5G service by the
applicable service deployment milestone. The minimum
[[Page 66793]]
percentage of drive-testable grid cells tested must equal the minimum
percentage of coverage required for each service buildout milestone
(i.e., 40%, 60%, 80%, 85%). In the FNPRM, the Commission proposes to
modify the methodologies that support recipients would use to
substantiate their 5G broadband coverage certifications in the areas
for which they receive 5G Fund support in order to be consistent with
both its proposal to use hexagonal areas as the basis for the areas
eligible for 5G Fund support and the Commission's decision in the 5G
Fund Report and Order to generally align the framework for
demonstrating compliance with 5G Fund performance requirement
milestones with the BDC. If this proposal is adopted, small and other
providers that receive 5G Fund support will be required to use
different methodologies than were adopted in the 5G Fund Report and
Order for purposes of demonstrating compliance.
70. The FNPRM also seeks comment on whether to adopt a requirement
that each 5G Fund support recipient implement cybersecurity risk
management and supply-chain risk management plans as a condition of
receiving 5G Fund support, similar to the requirement adopted for the
Enhanced Alternative Connect America Cost Model program. In that
program, support recipients are required to implement such plans prior
to the start of the program's support term, and to submit the plans to
the USAC and certify that they have done so.
71. In assessing the cost of compliance for small entities, at this
time the Commission is not in a position to determine whether small
entities will be required to hire professionals, and cannot quantify
the cost of compliance with its proposals related to the above-
described possible modifications to the metric and methodologies for
demonstrating and reporting compliance with the 5G Fund public interest
obligations and performance requirements. The Commission anticipates,
however, that the comments it receives will discuss any potential
changes to compliance costs and/or administrative burdens for small
entities, and may help the Commission identify and evaluate other
relevant issues for small entities associated with the matters
discussed in the FNPRM.
72. The FNPRM also seeks comment on a proposal to add to the
existing certifications that are required under the Commission's
competitive bidding rules a requirement that each applicant in the 5G
Fund Phase I auction certify, under penalty of perjury, that it has
read the public notice adopting procedures for the auction, which will
be released in advance of the auction's short-form deadline, and it has
familiarized itself both with the auction procedures and with any
requirements related to the authorizations or support made available
for bidding in the auction. Consistent with other certifications
required in an auction application, a failure to make these
certifications would render an application unacceptable for filing, and
the applicant will not be found qualified to bid.
73. Typically, the auction procedures inform prospective applicants
that they should familiarize themselves with the Commission's general
competitive bidding rules, Commission decisions regarding competitive
bidding procedures, application requirements, obligations of Commission
licensees, construction permit holders, and support recipients, and the
Commission's service rules for the frequency band available in the
auction or for construction permits or universal service support, and
that they must be thoroughly familiar with the procedures, terms, and
conditions contained in the public notice adopting procedures for the
auction. The Commission therefore does not expect that the
certification requirement proposed in this FNPRM will increase the need
for small entities to hire attorneys, engineers, consultants, or other
professionals because it does not increase the level of education or
due diligence beyond what was required of applicants prior to the
adoption of the certification requirement, and thus it should not
increase an applicant's burden in complying with the additional
certification requirement. Additional public notices adopting the
procedures for any auction will be released before the auction's short-
form filing deadline and made publicly available on each auction's web
page. The Commission believes that this is sufficient to ensure that
applicants in each auction can certify truthfully that they have read
the auction procedures and familiarized themselves with the relevant
rules and requirements.
74. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include (among others) the
following four alternatives: (1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance or
reporting requirements under the rule for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.
75. The Commission believes that the proposed modification to the
metric for measuring compliance that may be necessary depending on the
metric that it will use to accept bids and identify winning bids will
also benefit small entities as corresponding changes to the metric that
will be used to measure compliance will ensure that small entities
would not be required to undertake separate analyses to determine how,
and where they wish to bid, to identify the areas for which they are
awarded support, and to measure and report compliance with their public
interest obligations.
76. In the FNPRM, an alternative the Commission considered to its
proposal to use dollars per square kilometer as the bidding and support
price metric, which it seeks comment on, is whether to adopt an
alternative approach that would provide some advantage to particularly
costly areas that nonetheless are areas with a considerable number of
homes, businesses, and other locations, and/or roads that are
frequently travelled. The Commission inquires whether parameters for
such an alternative approach could be determined without unduly
delaying the auction. Another alternative considered is to use a
bidding and support price metric based on the number of locations in
the eligible areas. Additionally, the Commission seeks comment on
potentially incorporating the number of unserved road miles in an area,
as well as the number of locations, into the bidding and support price
metric. The Commission inquires whether there is an approach that would
appropriately balance unserved road miles and unserved locations in a
single metric. For example, the Commission asks whether it could adjust
the number of locations upward by a fraction, e.g., 25%, in an area
with a moderate number of unserved road miles, and by a larger
fraction, e.g., 40%, if the area has a large number of unserved road
miles, or whether a metric that is a weighted sum of unserved locations
and unserved road miles would be appropriate, such as a metric that is
the total of the number of unserved locations and one half of the
number of unserved road miles. The Commission also considered and seeks
comment on a possible metric based on predicted usage from serving
eligible areas. This metric would consider all measurable factors that
can affect mobile usage,
[[Page 66794]]
such as unserved locations, road miles, and areas with parks or
wilderness where devices are likely to be used. Possible options the
Commission raises for discussion to measure usage are using the average
number of connected 5G devices in 15-minute periods throughout the day
or the total megabytes of data usage during a reporting period.
77. The discussion of the approach the Commission should take to
harmonize the metric it uses to measure a 5G Fund support recipient's
compliance with its public interest obligations and performance
requirements should the Commission decide to modify the bidding and
support price metric adopted in the 5G Fund Report and Order looked at
two potential options upon which the FNPRM seeks comment. If the
Commission was to use a locations-based metric without a road miles
component, it would measure compliance based on a support recipient
deploying service that meets the 5G Fund performance requirements to a
specified percentage of the total locations within the eligible areas
for which it is authorized to receive 5G Fund support in a state by the
relevant interim service milestone and the final service milestone.
Alternatively, if the Commission was to use a hybrid metric that
incorporates locations and road miles, it would measure compliance
based on a support recipient deploying service that meets the 5G Fund
performance requirements to a specified percentage of the total
unserved locations and a specified percentage of the total unserved
road miles within the eligible areas for which it is authorized to
receive 5G Fund support in a state by the relevant interim service
milestone and the final service milestone.
78. With respect to the proposed certification requirement for
short-form auction applications, the Commission has taken steps to
minimize any economic impact of the certification requirement on small
entities through the many free resources the Commission provides to
potential auction participants. The public notice adopting the
procedures for each auction will be posted to the auction's website
prior to the opening of the application window, and other relevant
orders are available through EDOCS, the Commission's online document
database (<a href="http://www.fcc.gov/edocs">www.fcc.gov/edocs</a>). The Commission believes that reading
these materials will be sufficient for applicants to certify that they
have familiarized themselves with the relevant auction procedures and
other requirements. The Commission also makes available additional
educational materials to help potential auction participants understand
the auction process, including short-form filing instructions and a
tutorial. The Commission makes this information publicly available and
easily accessible and without charge to benefit all potential auction
applicants, including small entities, thereby lowering their
administrative costs to comply with the Commission's competitive
bidding rules.
79. Small entities and other auction participants also may seek
clarification of, or guidance regarding, auction procedures, the
competitive bidding rules, and any requirements related to the
authorizations or support to be made available through the auction from
Commission staff prior to the auction's application window.
Additionally, an FCC Auctions Hotline provides small entities one-on-
one access to Commission staff for information about the auction
process and procedures. The FCC Auctions Technical Support Hotline is
another resource that provides technical assistance to applicants,
including small entities, on issues such as access to or navigation
within the electronic short-form application and use of the bidding
system.
80. Additionally, in the FNPRM the Commission also considered and
seeks comment whether, and to what extent, if any, it can or should use
the 5G Fund to encourage the deployment of Open RAN, and if so, how.
The Commission considered, as an example, whether deploying Open RAN
networks requires more time such that it should afford a 5G Fund
support recipient an extension of the interim and/or final service
milestone deadlines if it demonstrates that it is using Open RAN in its
network deployment. This approach could benefit small providers by
allowing them the flexibility to choose an option that may provide an
extension of compliance deadlines.
81. The issues on which the Commission seeks comment in the FNPRM
are designed to ensure the Commission has a complete understanding of
the costs, benefits, and potential burdens associated with the
different actions and methods. The Commission seeks to continue to
learn from the experience of small entities so that it can balance its
responsibility to monitor the use of universal service funds with
minimizing administrative and compliance costs and burdens on 5G Fund
participants. The Commission expects to more fully consider the
economic impact on small entities, as identified in comments filed in
response to the FNPRM and this Supplemental IRFA, in reaching its final
conclusions and taking final action in this proceeding.
82. There are no Federal rules that duplicate, overlap, or conflict
with the rules proposed herein.
83. Ex Parte Rules--Permit-But-Disclose. This proceeding shall be
treated as a ``permit-but-disclose'' proceeding in accordance with the
Commission's ex parte rules. Persons making ex parte presentations must
file a copy of any written presentation or a memorandum summarizing any
oral presentation within two business days after the presentation
(unless a different deadline applicable to the Sunshine period
applies). Persons making oral ex parte presentations are reminded that
memoranda summarizing the presentation must (1) list all persons
attending or otherwise participating in the meeting at which the ex
parte presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b), 47 CFR 1.1206(b). In
proceedings governed by rule 1.49(f), 47 CFR 1.49(f), or for which the
Commission has made available a method of electronic filing, written ex
parte presentations and memoranda summarizing oral ex parte
presentations, and all attachments thereto, must be filed through the
electronic comment filing system available for that proceeding, and
must be filed in their native format (e.g., .doc, .xml, .ppt,
searchable .pdf). Participants in this proceeding should familiarize
themselves with the Commission's ex parte rules.
XIII. Ordering Clauses
84. Accordingly, it is ordered, pursuant to the authority contained
in sections 4(i), 214, 254, 303(r), and 403 of the Communications Act
of 1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), and 403, and
Sec. Sec. 1.1 and 1.421 of the Commission's rules, 47 CFR 1.1 and
[[Page 66795]]
1.421, that this Further Notice of Proposed Rulemaking is adopted.
85. It is further ordered that, pursuant to the authority contained
in sections 4(i), 214, 254, 303(r), and 403 of the Communications Act
of 1934, as amended, 47 U.S.C. 154(i), 214, 254, 303(r), and 403, and
Sec. Sec. 1.1 and 1.421 of the Commission's rules, 47 CFR 1.1 and
1.421, notice is hereby given of the proposals described in this
Further Notice of Proposed Rulemaking.
86. It is further ordered that, pursuant to applicable procedures
set forth in Sec. Sec. 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments on the Further
Notice of Proposed Rulemaking in the captioned docket on or before the
date shown on the first page of this document, and reply comments on or
before the date shown on the first page of this document.
87. It is further ordered that the Office of the Secretary,
Reference Information Center, shall send a copy of this Further Notice
of Proposed Rulemaking, including the Supplemental Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2023-21476 Filed 9-27-23; 8:45 am]
BILLING CODE 6712-01-P
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</html>Indexed from Federal Register on September 28, 2023.
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