When Should States Initiate Their State Challenge Process?
By Justin Fazzari, Senior Broadband Strategist –
This is the second in a two-part series that analyzes the question, When Should States Initiate Their State Challenge Process? Click here to return to Part 1.
If the term “Challenge Process” has become confusing, you’re right. In this blog, I discuss some issues states should be considering before deciding when to initiate their State Challenge Process.
The purpose of the State Challenge Process is to give state stakeholders an opportunity to challenge the classification of every unserved or underserved location that is eligible for BEAD funds, eligibility and determination of Community Anchor Institutions, enforceable commitments and planned service.
When mapping out the timing of the State Challenge Process, some parameters to keep in mind are that states can initiate their State Challenge Process once the Initial Proposal Volume 1 is approved, and Volume 2 is submitted to NTIA. However, states do not have to immediately initiate their State Challenge Process, so when is the best time to do so? In my view, the answer is; it depends.
What are Some Scenarios and Criteria for Initiating the State Challenge Process Sooner?
There are several reasons that a state may want to initiate their State Challenge Process as soon as possible. States may simply want to adopt the map that their allocation was based on. Political leadership may favor expediency to move the BEAD program ahead as quickly as possible. States may feel comfortable that the current map is accurate enough in reflecting the universe of broadband serviceable locations and their status as unserved, underserved and served locations. States may also have had most of their Fabric and BDC Challenges adjudicated.
If states did not submit many Fabric or BDC Challenges and thus are not waiting for challenges to be adjudicated, there would be little reason to delay. Finally, if states did submit a significant number of challenges but are not winning enough of those challenges, it may not be worth waiting for more challenge adjudication.
There are also opportunity costs as all of the unserved and underserved areas will have to wait longer for infrastructure work to get underway. There are cost inflation considerations such as supply chain, labor and material prices. We are already seeing RDOF winners suggesting remedies to the FCC for the increasing deployment cost estimates as they report that the winning RDOF bids are no longer sufficient. There is also the risk of unobligated funds being clawed back in future federal budget negotiations.
We have been discussing that there are scenarios where a future version of the National Broadband Map creates less favorable conditions for a state, such as a large number of locations that were serviceable through BEAD are no longer serviceable because of new provider availability data. The effect being a reduction in the locations that a state can service with BEAD funding and reducing how many BSLs can be serviced with future-proof technology solutions such as fiber to the home. We have seen this exact scenario play out in states we are supporting.
What are Some Scenarios and Criteria for Initiating the State Challenge Process at a Later Date?
The State Challenge Process requires states to develop a public-facing “challenge portal,” which, based on the guidance, needs to be developed to accommodate the challenges and rebuttals from eligible entities. Note that eligible entities are limited to local and tribal governments, non-profit organizations, and ISPs. This will require development time, expertise, testing and validation. We recommend that states allow adequate time for a challenge portal to be developed and tested so that sufficient time is available to handle all aspects of the challenge process, including additional requirements that states may choose to build into their State Challenge Process. One example is the inclusion of public speed tests that must be conducted under defined circumstances, per the NTIA guidance.
States should also consider issues relating to Community Anchor Institutions (CAIs) since states need to do their own research to define and map CAI locations. Much of this data will need to be compiled from authoritative state sources as there are not many comprehensive nationwide sources.
If states are thinking that they want to wait until the Initial Proposal submission deadline, this may be so they have time to review and compare the next semiannual FCC map release. There is an argument to be made that each version of the map should increase in accuracy through adding and removing serviceable locations based on the four FCC BSL Fabric change criteria. The map should also be improved with updated BDC Availability data filed with the FCC by providers. States may also want to conduct more data analysis on the results of additional challenges to the Fabric and the BDC data.
Broadband serviceable locations still missing at this point, including those that are awaiting challenge adjudication, are likely to be some of the harder types to validate, such as poorly addressed locations on tribal lands or very rural locations and could therefore be high priority locations for BEAD funding. If so, waiting for the adjudication to be completed may be an important consideration. If these high-priority location challenges are rejected, states may want to gather additional evidence and resubmit FCC challenges.
When Should States Initiate the State Challenge Process?
The sooner states believe that the existing FCC map reflects actual broadband availability in their communities, the sooner they may want to initiate the State Challenge Process.
There are a few steps states can take to hone in on the best timing to initiate their State Challenge Process. These can include audits of challenges to date, in order to answer a few key questions like how many challenges have been submitted, how many were accepted, rejected and awaiting adjudication? There is also the potential for new challenges or the resubmission of rejections. States that were highly engaged in the FCC Challenge processes will likely be more comfortable conceptualizing, developing and testing their own State Challenge Process and thus may be able to move faster.
Engaging in a Comprehensive, Data Driven, Strategic Approach to the State Challenge Process
With the level of funding that is available through BEAD, states should be focusing on comprehensive, data driven, strategic approaches to inform decision making about the best State Challenge Process for their state in light of the NTIA BEAD Model Challenge Process Guidance. The most useful Challenge Process portals will be agile and flexible to allow states to manage their State Challenge Process in a way that aligns with NTIA guidelines, but also ensures the state is able to include their own unique criteria where applicable.
While the focus here has been on the timing of the State Challenge Process, a comprehensive, data driven, strategic approach should also be applied to management of the BEAD program and any other broadband focused programs. This approach will help ensure states have a good understanding of potential/existing gaps in availability across the state and what populations they represent demographically/economically. It will also help support states’ digital equity efforts and tribal outreach.
And Then There is Cost Modeling…
While the State Challenge Process will be a big lift, states should also be developing cost models to analyze the potential cost of delivering broadband across existing and newly adjudicated unserved and underserved BSLs. Of course the CostQuest Cost model is in the forefront of many people’s minds but other models like the RDOF reverse auction model and other proprietary models will help provide a range of prices to assist states in better managing their subgrantee selection process. In the spirit of the BEAD program, states will want to develop and implement an approach to make sure the highest cost and hardest to connect locations are not left behind. An investment in these types of analytics will improve the ultimate outcomes of the BEAD program.
Now that states have a framework for thinking about the timing of the BEAD State Challenge Process and what version of the National Broadband Map to use (see blog #1 in this series), they will need to look at defining their State Challenge Process, building out their Challenge Portal and developing their state cost model.