TMCnews Featured Article

Those who’ve been following this column know that one of my pet rants has been against the backdoor incumbent challenge clause in the NOFA rules, the one that allows incumbents in an area to challenge an app claiming they already service the proposed coverage area. It looks like the tide has turned in favor of applicants in this area.

 

Asst. Sec Lawrence Strickling, head of NTIA, stated unequivocally in a recent Congressional hearing that “incumbents do not have a veto” over NOFA applications.
 

Strickling and Jonathan Adelstein, Administrator for RUS, were responding to Congresswoman Anna Eshoo, who was just as unequivocal. “I want to make sure there’s competition. If the incumbents can just knock out people because they don’t want any to come in, I don’t really think that’s the way for us to go.”

 

Strickling laid out a fairly good picture of how this process will run. Applications with infrastructure proposals have proposed to cover areas where there isn’t adequate or any broadband service. Maps are being generated for these areas through a publicly accessible database so you can see the proposed coverage area. During the review period anyone, including incumbents, can submit a message on the site saying they agree or not that the areas currently are not receiving adequate broadband.

 

Because applicants had to provide detailed information to justify their claim that these areas need broadband, “incumbents have to provide a lot of information to overcome the presumptions that have been established by the applicants,” Strickling said. NTIA will evaluate the challenge if it feels the challenge and supporting material throws the proposal into dispute, but NTIA and not the incumbent will have final say in determining whether the app moves to final review.

 

Adelstein added, “We will demand real substantiation with any challenge. But also, we want to be sure that what applicants present is accurate. Claims have to be verified and substantiated.” Furthermore, RUS has over 400 offices across the U.S. and they will send people into the field to areas that incumbents challenge to test and assess the validity of any challenges.

 

You can read my Fighting the Next Good Fight blog to see how we can proceed now that it seems we have a leg up on this challenge issue. But there are also a couple of issues we can’t afford to lose sight of as we move into the second NOFA funding round. The incumbents are still trying to tilt the playing field in their favor.

 

The day applications were due, there was a wave of statements from the big incumbents that they weren’t going to play in the NOFA sandbox because they didn’t like the rules, and their supporters hinted the stimulus program was subsequently going to fail. Then it was revealed that NTIA/RUS has 2,200 applications. Now that it’s apparent we really don’t need the incumbents to participate to bring broadband to underserved areas, the incumbents are demanding that the rules be changed so they can play. <sigh> The battles never end.

 

For community broadband advocates, we must keep pushing back on several rule changes that incumbents want, while encouraging some new ones that are more community-friendly. Net neutrality (News - Alert) and open access are two rules to preserve. Luckily, with today’s resounding endorsement by FFC Chairman Genachowski of these principles, it should be easier to hold the line here. Conversely we need rules changes that allow public-owned and public/private partnership networks to project return on investment based not just on profit margin, but also on intangible benefits such as improving government operations advancing the public good.

 

Next week I’ll present some rule changes that can benefit the drive for community broadband.