LTD Broadband Files Lawsuit Against Iowa Utilities Board To Reverse Decision Denying Expanded ETC Designation
UPDATE: FCC Rejects LTD Broadband’s Long-Form Application For Rural Digital Opportunity Fund Support
August 10, 2022 – The Federal Communications Commission (FCC) has announced it is rejecting LTD Broadband LLC’s long-form application to receive Rural Digital Opportunity Fund (RDOF) auction support. The announcement was made in an FCC News Release.
December 7, 2021 – LTD Broadband, LLC has filed a Petition for Judicial Review with the District Court for Polk County, Iowa, asking the court to review and reverse the Iowa Utilities Board’s November 5, 2021, order denying LTD Broadband’s Eligible Telecommunications Carrier (ETC) application.[1] LTD had sought designation as an ETC in certain areas of Iowa where it won Digital Opportunity Fund (RDOF) Phase I auction support.
The Details Of LTD Broadband’s ETC Designation Request In Iowa
LTD Broadband, one of the biggest winners in the FCC’s RDOF Phase I auction, was awarded $23,184,786.30 in ten-year RDOF support to serve 12,916 locations in Iowa.[2]
Under the RDOF program rules, a winning bidder that was not already an ETC in the areas where it won RDOF support was given 180 days from the release of the FCC’s Auction 904 Closing Public Notice to obtain any necessary ETC designations.[3] The 180-day ETC deadline for RDOF Phase I auction winners was June 7, 2021.
LTD, for whatever reason, did not seek ETC designation in the areas of Iowa where it won RDOF support until May 7, 2021, approximately five months after the release of the Auction 904 Closing Public Notice. This was 121 days after the RDOF “good faith” presumption for ETC applications.[4]
At the time, LTD Broadband had been designated as an ETC by the Iowa Utilities Board in 2019, but only for areas in Iowa where it won support in the FCC’s Connect America Fund (CAF) Phase II auction. LTD’s May 7 application asked the Iowa Utilities Board to expand LTD’s ETC designation to include the areas where it won RDOF support.
Later, when it was clear LTD would not receive the expanded ETC designation prior to the May 7 ETC deadline, it filed a petition with the FCC seeking a waiver of the deadline in Iowa, as well as seven other states where it won support.[5]
On October 20, 2021, the FCC’s Wireline Competition Bureau issued an Order denying LTD Broadband’s petition for waiver of the ETC requirement in areas of Iowa, which resulted in the loss of $23 million in 10-year RDOF support LTD was awarded in the state.[6]
On November 5, 2021, the Iowa Utilities Board issued an Order denying LTD’s ETC application. Among other thing, the Iowa Utilities Board provided the following reasoning for its decision:
The Board’s decision in this Application, however, is not based on that initial impression nor isolated acts of noncompliance. It is that inconsistent history of compliance, coupled with LTD’s representations to the Board and FCC about that history for purposes of this Application, as well as the scale of the additional responsibility LTD seeks to take on, that the Board finds more concerning from a public interest standpoint. The record in this docket does not merit the expansion of a credential that signals to the public that LTD has evidenced the technical and financial capabilities required to carry out the public interest obligations of those entrusted with federal funds. LTD’s responses and actions lack the candor that the Board would expect from a carrier seeking to evidence the expertise to take on this degree of expansion. The Board notes that a decision to deny expansion of the credential does not disturb LTD’s current designation; however, the record developed may suggest a need for additional compliance monitoring of LTD’s existing designation.[7]
On November 19, 2021, LTD Broadband filed a Petition For Reconsideration of the Wireline Competition Bureau’s Order denying LTD’s ETC waiver petition.[8]
On December 3, 2021, LTD Broadband filed its Petition for Judicial Review with the District Court for Polk County, Iowa, asking the court to review and reverse the Iowa Utilities Board’s Order denying LTD Broadband’s ETC application.
LTD Broadband’s Petition For Judicial Review
In its Petition For Judicial Review, LTD ultimately requests that the Court reverse the decision of the Board, and makes the following claims for relief:
The Board’s delay and denial of LTD’s request to amend its ETC territory was arbitrary and capricious, and inconsistent with how the Board treated applicants making similar application.
The Board’s delay and denial failed to take into account the magnitude of the loss of potential investment in Iowa’s underserved communities and the public policy interests in timely action to facilitate the implementation of RDOF and the FCC’s decision to award LTD additional territories.
The Board’s apparent application of standards closer to those for an initial ETC application misinterprets the Board’s own rules, and used standards that were wholly subjective in violation of LTD’s due process. Moreover, if the FCC or the Iowa Legislature allowed and intended for the Board to use unclear, subjective standards without notice, such delegation of authority is an unconstitutional delegation beyond the scope of an administrative agency.
LTD Broadband, LLC respectfully requests that the Court reverse the decision of the Board, and enter such other relief as it finds proper on the facts and law before it.
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[1] See Supplement To Petition For Reconsideration Of LTD Broadband LLC, The Rural Digital Opportunity Fund Auction (Auction 904), AU Docket No. 20-34, Rural Digital Opportunity Fund, WC Docket No. 19-126 (filed Dec. 7, 2021) (LTD Supplement), https://ecfsapi.fcc.gov/file/12072145608362/LTD%20Broadband%20Supplement%20to%20Petition%20for%20Reconsideration.pdf.
[2] Rural Digital Opportunity Fund Phase I Auction (Auction 904) Closes; Winning Bidders Announced; FCC Form 683 Due January 29, 2021, AU Docket No. 20-34, WC Docket 19-126, WC Docket No. 10-90, Public Notice, DA 20-1422, (Dec. 7, 2020) (RDOF Closing PN), https://docs.fcc.gov/public/attachments/DA-20-1422A1.pdf. A list of the winning bidders is available here. An interactive map of the RDOF auction results is available on the Auction 904 web page. A summary of the results by state is available here.
[3] 47 C.F.R. § 54.804(b)(5).
[4] Often, it takes a state public utility commission longer than 180 days to review and grant an ETC application. In those cases, an RDOF winning bidder can ask the FCC to waive the ETC deadline. When the FCC reviews such a waiver request, it will “presume that an applicant acted in good faith if it filed its ETC application with the relevant state authority within 30 days of the release of the public notice identifying Auction 904 winning bidders.” Rural Digital Opportunity Fund, WC Docket No. 19-126, Connect America Fund, WC Docket No. 10-90, Report And Order, FCC 20-5, ¶ 81 (Feb. 7, 2020). For RDOF, this “good faith” presumption deadline was January 6, 2021.
[5] LTD Broadband LLC Petition of for Waiver of Section 54.804(b)(5) of the Commission’s Rules, AU Docket No. 20-34, WC Docket No. 10-90, WC Docket No. 19-126 (filed June 7, 2021), https://ecfsapi.fcc.gov/file/106070476913071/LTD%20Broadband%20ETC%20Waiver%20Request.pdf.
[6] The Rural Digital Opportunity Fund Auction (Auction 904), AU Docket No. 20-34, Rural Digital Opportunity Fund, WC Docket No. 19-126, Order, DA 21-1311 (Oct. 20, 2021) (2nd LTD Broadband Waiver Denial Order), https://docs.fcc.gov/public/attachments/DA-21-1311A1.pdf.
[7] In Re: LTD Broadband, LLC, Docket No. ETA-2019-0001, Order Denying Request To Amend Eligible Telecommunications Carrier Designation, State Of Iowa Department Of Commerce Utilities Board, at p. 16 (Nov. 5, 2021); LTD Supplement at p. 61.
[8] Petition For Reconsideration Of LTD Broadband LLC, The Rural Digital Opportunity Fund Auction (Auction 904), AU Docket No. 20-34, Rural Digital Opportunity Fund, WC Docket No. 19-126 (filed Nov. 10, 2021), https://www.fcc.gov/ecfs/filing/1119996800777.
