LTD Broadband, which was the largest winning bidder in last year’s FCC Rural Digital Opportunity Fund (RDOF) auction, has asked the commission to reconsider its decision involving the carrier’s application for eligible telecommunications carrier (ETC) status in California, alleging “egregious misconduct” on the part of the attorney that handled the filing. Unless reversed, the FCC decision will prevent LTD Broadband from obtaining RDOF funding for the state.
Last month, the FCC said LTD Broadband failed to act in a timely manner to obtain ETC status in California and two other states, a requirement for obtaining RDOF funding. But according to an LTD Broadband filing with the FCC this week, the company puts responsibility for the late filing on the attorney that the company was using at that time to handle ETC applications.
The RDOF auction tentatively awarded funding to cover some of the costs of deploying broadband to unserved rural areas, with funding for an area going to the company that committed to deploying service for the lowest level of support. LTD Broadband was tentatively awarded $1.3 billion for deployments in multiple states.
LTD Broadband ETC Status
California law requires companies seeking ETC status to first obtain a certificate of public convenience and necessity (CPCN), LTD states in its filing with the FCC this week.
According to the filing, the lawyer that the company engaged to handle ETC applications told the company that he had submitted the California ETC application and CPCN application in April. That filing was made by mail without confirmation whether such applications were being accepted by mail amid the COVID-19 pandemic, LTD Broadband says.
LTD also states that the lawyer admitted to fabricating a confirmation receipt dated April 26, 2021 from the receipt for the electronic filing that he subsequently made on June 3. To do this, he used a PDF editing function to alter the date and substituted a docket number based on what he believed to be the next number in sequence in the California Public Utilities Commission system.
That June 3 filing is what the FCC took issue with, as RDOF winners were expected to obtain ETC status by June 7.
The commission did give some companies extra time to obtain ETC status and LTD Broadband argues that the company’s California application should have been included with those exceptions.
The company states that obtaining CPCN certification in California can take 18 months. It also notes that some other RDOF winning bidders that were required to obtain both CPCN and ETC certification were not able to obtain ETC certification in time to meet the FCC deadline.
LTD argues that the “critical factor” in the company failing to obtain California ETC status before the deadline is not the timing of the submission of the ETC application but the fact that the company had not yet received CPCN certification.
LTD Broadband asks the FCC to reconsider its decision about the company on California because the company “cannot reasonably be imputed with the gross misconduct and deception engaged in by its then-newly-retained and since dismissed counsel” and because “the actual filing of LTD’s California ETC/CPCN applications . . . leaves LTD in the same position as other RDOF auction winners that also filed their ETC applications before June 7, 2021.”
Other Hurdles
California ETC status is not the only hurdle LTD Broadband must face before receiving RDOF funding. The FCC also has not yet approved the company’s long-form application, which has generated considerable controversy. Critics argue that the company can’t economically deploy the fiber networks it has committed to building at the level of support won and that the company doesn’t have the resources to undertake buildouts for all the areas where it had winning bids.
The number of buildouts the company would have to make are declining, however. The company did not protest the FCC’s decision to disqualify winning bids in Kansas and Oklahoma, where the company also did not obtain ETC status before the deadline. The company also has opted not to pursue deployments in areas where it had winning bids but which, according to other stakeholders, already have broadband service or are not appropriate for deployment.
