Minn. PUC Urged to End RDOF Winner's ‘Regulatory Purgatory’
LTD Broadband said there’s no urgent need for the Minnesota Public Utilities Commission to resume proceedings on revoking LTD Broadband’s eligible telecom carrier (ETC) designation. The Rural Digital Opportunity Fund (RDOF) winner disagreed with state industry groups and Minnesota Attorney General Keith Ellison (D) in reply comments filed Monday in docket 22-221. "The contention of these parties that LTD’s FCC application could suddenly spring to life and result in LTD obtaining immediate authorization for [RDOF] support, thereby barring others from seeking alternative funding for broadband deployment, has no basis in fact," the ISP said.
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The Minnesota PUC is weighing whether it should lift a Jan. 18 stay meant to give time for the FCC to rule on LTD’s appeal of agency staff's denial of the company’s RDOF long-form application. The Minnesota Telecom Association (MTA) and the Minnesota Rural Electric Association (MREA) are seeking to suspend LTD’s ETC designation while the PUC considers revoking it altogether. About seven months since the Minnesota stay, the FCC hasn’t reached a decision on LTD’s appeal. The PUC received initial comments earlier this month (see 2308140032 and 2308150029).
“Allowing LTD to remain in regulatory purgatory interferes with the efforts of local governments, nonprofits, and other providers to make investments with reasonable certainty and secure federal subsidies,” replied Ellison, representing the state commerce department. Reject the company’s attempts to reduce the PUC's role "from an independent regulator to a rubberstamp,” said the AG: The FCC “deliberately involved state commissions” by requiring RDOF winners to get ETC designations.
Need for Minnesota PUC action "has only grown more remote and attenuated in the fifteen months following the initial filing” by MTA and MREA, disagreed LTD. Minnesota Commerce complains that parties can't work on the case while it's stayed but fails to explain why they should "when there is no active consideration of LTD’s RDOF application and any potential change in that status is, at best, speculative,” it said. “There has been no showing that any further discovery, case preparation or investigation is required now, or ever will be required.”
MTA and MREA disagreed that the situation isn’t urgent. "Immediacy is inherent in the fact that LTD currently retains the ETC Designation it needs to quickly obtain authorization for [RDOF] support if the FCC grants LTD the relief it seeks,” the state industry associations said. “Such an authorization would trigger ineligibility" for NTIA's broadband equity, access and deployment program. In the meantime, possible FCC reversal or modification of the staff decision “will likely chill competent providers from pursuing funding that would bring broadband deployment to residents in LTD's ETC area,” they said.
LTD pooh-poohed fresh facts other commenters raised as "entirely findings of FCC staff that currently remain subject to full commission review at the FCC or untested claims of hired 'experts' that have not been qualified as such.” Besides, there's no need for the Minnesota PUC to consider them unless the FCC first reverses its rejection of the RDOF winner's long form, said LTD: Until then, the company won't be able to receive any RDOF funding, "effectively mooting the concerns that the other commenters assert." LTD added "it would be entirely prejudicial" for the PUC to consider the motion to suspend its ETC designation. "The Commission should not, based on allegations to which LTD has not responded and for which no standards are established, suspend a designation that the Commission granted based on a full and complete record.”
The PUC "has the legal authority and responsibility to suspend" the RDOF winner's ETC designation based on petitioners’ presentations "showing LTD is unable to perform its ETC obligation to provide the supported broadband services throughout its Minnesota ETC area,” MTA and MREA said. They disagreed the PUC must defer to the FCC, arguing the state commission has "independent responsibility to determine whether LTD can provide the supported broadband services, and that responsibility is ongoing." MTA and MREA said they’re not arguing FCC staff-level findings are dispositive but rather "further evidence of LTD's inability to perform its ETC obligations.”
"The federal government is making a generational investment in broadband through" RDOF and the Infrastructure Investment and Jobs Act, said Ellison. "It is essential that these public subsidies only flow to providers capable of deploying broadband and delivering on their applicable [ETC] commitments. LTD Broadband, however, does not appear up to these tasks."