Blueprints for BEAD: Stakeholders May Use Rebuttal Power to Prevent New Errors in BEAD Maps

Blueprints for BEAD is a series of short notes and analysis on nuances of BEAD that might otherwise get lost in the volume of material published on this federal funding program. Click the “Blueprints for BEAD” tag at the bottom of this story for other posts.
 

By mid June, we will have blown past the halfway mark in the BEAD challenge process - with more than thirty states having completed their “challenge windows” and another handful set to close imminently. But the “challenge window” is only part of the overall challenge process, and there are reasons for communities to stay engaged with the process even after that window closes. Communities - don’t sleep on the rebuttal window!

Where We Sit Today

Each state must conduct a challenge process prior to opening up BEAD grants to verify that the data on the National Broadband Map is accurate. That process will have three stages: the challenge window, the rebuttal window, and the determination window. During the challenge window, eligible challengers (local and Tribal governments, nonprofits, and ISPs) can present evidence that locations are incorrectly categorized as served, underserved, or served. According to the NTIA’s Challenge Process Policy Notice, those same eligible entities can participate in the rebuttal window, where they supply evidence refuting a challenge that was made by someone else. After both of these periods are over, the state weighs all of the evidence and makes a final determination (determination window). 

Why might this rebuttal period be important for communities? In short, not all challenges are created equally. While we might primarily think of challenges that make the map more accurate, some challenges could, in fact, make the map less accurate. Some ISPs might make questionable challenges about the level of service they can or will provide.

The BEAD process will distribute more than $42 billion nationally in new infrastructure to places where existing connections fall short, and the ISPs that operate those existing networks have a vested interest in protecting that territory. In fact, ISPs have so far dominated the challenge process around the country (see Kentucky’s data for instance), and there are plenty of signs that some are acting aggressively to protect their service areas from potential future competitors (irrespective, of course, of the ultimate impact to homes and businesses that need better connectivity).

The bottom line: it may be up to communities to rebut those challenges.

Local governments, Tribes, and nonprofits should monitor the challenges being filed in their areas to ensure that they align with on-the-ground realities. Below we highlight three types of challenges that may warrant a community’s attention:

Planned Service

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These appear to be relatively common challenges (again, see Kentucky’s data). With this challenge, a provider would claim that a buildout is already planned to provide qualifying broadband available within a certain time frame (each state’s time frame may be slightly different, but this is usually within a year). By definition, planned service challenges are bound to make whole areas currently without broadband ineligible for BEAD funding, because a provider expects to serve those areas imminently.

Communities should be sure to examine these challenges closely and lodge a rebuttal if they have reason to believe that the provider is not likely to achieve the planned buildout in the time frame required. Have the necessary permits or rights-of-way not been secured? Have they indicated a different timeline in correspondence with you? Share this information with the state so that they can better evaluate the claims being made by the provider.

Enforceable Commitments
These are among the most complex challenge types. A provider is considered to have an enforceable commitment where they have recently received federal or state funds to build out broadband infrastructure at qualifying speeds, even though they have not actually completed the buildout. NTIA does not honor these enforceable commitments on Tribal lands if the provider has not obtained a legally binding agreement in the form of a Tribal Government Resolution of support. Even though this would appear to be cut and dry, some confusion remains, especially regarding the Tribal consent requirements.

Rebuttals of this challenge type are likely to be rare, but communities should keep their eyes out for a couple of details. First, is an enforceable commitment challenge accurate in classifying locations covered by the commitment? In some cases, a broadband grant covered 100 percent of the locations in a given geography, but in other cases, only selected locations. If the latter is the case, you will want to make sure that only those locations officially covered by the grant are being claimed by the provider. Second, though details vary among states, the challenge process does offer a mechanism for calling into question the validity of the underlying enforceable commitment by supplying compelling evidence that the provider is likely unable to meet the commitment (in the promised timeframe, financially, or technologically).

Gigabit Service at CAI
Only some states anticipate having the funds to spend on boosting connections to Community Anchor Institutions (CAIs) because BEAD rules stipulate that states must first ensure they can reach every unserved or underserved location. In those states where there may be funding for CAIs, it is especially important that there is accurate information about which CAIs do not have gigabit service (the threshold established by BEAD for these locations).

CAIs that are correctly listed as lacking access to gigabit service should keep an eye out to ensure that fact is not erroneously challenged by a provider. NTIA’s Policy Notice indicates that a CAI can rebut a challenge from a provider that claims to offer them gigabit service. It won’t always be possible for state offices to contact each CAI directly to verify that the claim is legitimate, so CAIs will need to take the initiative. Local or Tribal governments and nonprofits can help by monitoring this process and ensuring that questionable challenges don’t go unnoticed.

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Worth the Hassle

As with the challenge process writ large, participating in the rebuttal window may be a complicated task. Each state should have documentation on what types of challenges local governments and nonprofits can rebut (check out Pennsylvania’s challenge process resource guide as an example), how they will be notified of such challenges through the challenge portal, and any other guidelines they must follow. A community wishing to take part in the rebuttal process will need to register for the state’s challenge portal and understand the evidence requirements for each type of challenge. (In some cases, entities wishing to participate in the rebuttal phase must register for the portal before the challenge window closes, so check with your state office for deadlines.) ILSR has released a BEAD challenge guide that offers high-level resources and information on the challenge process.

In short, even if your state’s challenge window is complete, don’t pack it in just yet. Communities may still have an important role to play. Don’t assume that all challenges to the map are good ones and be prepared to push back if anything looks awry.

We also want to make clear that a community’s engagement with the BEAD process should not stop at the end of the challenge process as a whole. Transparency rules will require states to publish application and project areas later in the BEAD process, and many states also plan to do a final check on the validity of locations after the challenge process. Though this might feel like a quixotic process, we encourage communities to be in contact with their state broadband office with information, evidence, or data you may have about the reality of Internet access in your community.

Note
The challenge process will look different across the country, with states granted latitude to adjust certain aspects of the rules. Some state documentation is not clear about permitting local or Tribal governments or nonprofits to participate in the rebuttal process. However, the text of the “BEAD Challenge Process Design Requirements” listed in NTIA’s Policy Notice on the Challenge Process reads as follows:

“Eligible Entities must adhere to the requirements outlined below when designing their challenge processes…If a provider claims gigabit service availability for a CAI or a unit of local government disputes the CAI status of a location, the CAI may rebut. All types of challengers may rebut planned service (P) and enforceable commitment (E) challenges.”

We encourage communities to reach out to state broadband offices for clarification if the challenge portal guidance is not clear on this issue.
 

Header image via flaticon by Freepik.