On Halloween afternoon, the FCC released its recently-approved Order on Reconsideration on the much-maligned broadband testing rules. While the Order provides more flexibility than the original Performance Measures Order from two years ago, it still does not grant all of the requests to ease burdens, submitted by the many rural associations. In our previous e-Lert about the draft Order on Reconsideration, we reviewed the delayed time frames for implementing the testing and reporting results. It included a one-year pre-testing period for Rural Broadband Experiment (RBE) awardees, rate-of-return companies, and recipients of CAF Phase II auction support where no penalties would be imposed for results below the FCC’s requirements. Now, with the release of the Order, the earliest that any RBE, rate-of-return or CAF Phase II provider will be required to report results that could cause penalties will be January 2022, with the majority not being required to report results until January 2023.

ETCs receiving high-cost support will still be required to test speed and latency metrics to ensure that the services for which they get support are meeting the technical standards required for the receipt of that support.

The following points summarize some of the key rules established in the Performance Measures Order, whether a rural broadband association sought reconsideration, and how the FCC ultimately decided in the Order on Reconsideration.

End Points for Testing
Original rule: Speed and latency should be measured on each ETC’s access network from a customer-side interface to the nearest Internet access point (IXP), which is the closest peering point between the broadband provider and the public Internet. The FCC designated 16 metropolitan areas as IXPs.

Recon petition: Testing to an FCC-designated IXP point can create conditions beyond the ILEC’s control that might impact the speed and latency tests. At the very least, the FCC should provide a “safe harbor” to protect carriers from adverse test results caused by other networks.

Order decision: The FCC denies the petitions but revised its definition of what it considers an IXP after finding that designating metropolitan areas was too vague. Under the revised definition, the FCC has now identified 44 specific locations and listed them in Appendix B of the Reconsideration Order. The FCC also states that small carriers “do have some influence and control over the type and quality of Internet transport they purchase,” but that carriers can seek waiver if the only transport option available would certainly degrade the testing results. Additionally, the FCC clarifies that testing should be conducted from the customer side of any network equipment that is being used.

Number of Test Locations
Original rule: Carriers must test a maximum of 50 subscribers per funded service tier offering per state, with some scaled flexibility for especially small providers, those with fewer than 500 customers in a state and service tier or those with fewer than 50 subscribers.

Recon petition: Testing even 10 percent of fewer than 500 subscribers might be too difficult, and the FCC’s rules require small providers to test a significantly higher proportion of customers than large providers’ tests.

Order decision: The FCC will not modify the testing sample size for speed and latency because the FCC has determined a margin of error whereby reducing the sample size could make the test results less of an accurate representation of the network’s performance. The FCC leaves an option for providers with particularly special circumstances to file a waiver. Additionally, carriers may use the same subscriber locations to test both speed and latency in order to avoid the burden of having two separate sets of subscriber locations.

Quarterly Testing Requirement
Original rule: To capture “seasonal effects” and differing conditions throughout the year, providers are required to test for speed and latency quarterly.

Recon petition: Quarterly testing is a substantial burden for small providers, and there is no certainty that quarterly testing would produce any more accurate information than a single week per year.

Order decision: The FCC maintains that quarterly testing is necessary to account for different conditions throughout the year based on changes in foliage, weather, and customer usage patterns.

Standards for Full Compliance
Original rule: To achieve full compliance with latency and speed standards, 95% of latency measurements during the testing windows must fall below 100ms round-trip time and 80% of speed measurements must be at 80% of the required network speed.

Recon petition: There is a significant disparity in compliance thresholds for speed and latency and, therefore, the ETCs’ latency measurements should be changed to meet 175ms at least 95% of the time to better align the latency standard with the speed standard.

Order decision: The FCC declines to modify the standards for full compliance and maintains the longstanding latency standard requiring that 95% of round-trip measurements be at or below 100ms, in addition to the speed standard that 80% of speed measurements must be at 80% of the required network speed. However, the Order clarifies that carriers are not required to provide speeds beyond what they are already obligated to deploy as a condition of their receipt of high-cost support.

Remedies for Non-Compliance
Original rule: Established a four-level framework that calls for reductions in support if performance testing shows that carriers have failed to meet the required speed and latency standards.

Recon petition: The non-compliance with speed and latency requirements is subject to support withholding under the established framework that is more severe than non-compliance with build-out milestones and should, therefore, be adjusted.

Order decision: FCC generally declines to revise the established compliance and certification framework, but will more narrowly tailor end-of-term non-compliance provisions, as follows. If a carrier cannot demonstrate compliance at the end of the support term, the FCC will only withhold support for the amount of time since the carrier’s network performance was last fully compliant. However, if a carrier has never complied with performance testing requirements at any time during the testing period, then the carrier will have the appropriate amount of support withheld at the end of the support term for the entire term. Additionally, in response to concerns regarding the fairness of potentially reducing carriers’ support amounts for both lack of deployment and non-compliance with speed and latency standards, the FCC clarifies that it will ensure that the total amount of support withheld from the carrier because of failure to meet deployment milestones and performance requirements does not exceed a certain limit. Finally, the FCC also has prescribed a remedy for carriers that fail to meet their deployment obligations at the end of the term as a result of failing to meet their speed and latency requirements.

Schedule to Commence Testing
Original rule: Established a deadline of July 1, 2020, for carriers to report the results of testing, with an accompanying certification, for the third and fourth quarters of 2019.

Recon petition: The testing schedule is too burdensome and does not provide carriers with enough time to figure out how to conduct testing and meet the requirements.

Order decision: The FCC has decided that it is appropriate to modify the scheduled start of performance testing to link speed and latency testing to the deployment obligations for carriers receiving support from each of the various high-cost support mechanisms. Pushing back testing will provide carriers with more time to develop solutions for how to undertake the required testing. Additionally, the FCC will implement a pre-testing period that will occur prior to the beginning of each carrier’s testing start date. The pre-testing period will also line up with the carrier’s deployment obligations for the specific high-cost program under which it receives support and will require the carrier to file data regarding pre-testing results. Under pre-testing, carriers will be required to conduct testing, using a USAC-determined random sample of subscribers, and submit their results to USAC within one week of the end of each quarter (i.e., by April 7 for the first quarter, July 7 for the second quarter, etc.). However, carriers are not at risk at having their support reduced during the pre-testing period, as long as each carrier actually undertakes pre-testing and reports their results. If a carrier fails to conduct pre-testing and submit timely results, they will be considered as Level 1 non-compliance. The random sample for pre-testing can be used by the carrier for a total of two years, meaning that carriers will need to obtain a new random sample after two years of pre-testing/testing. The FCC adopts the following rolling testing schedule:

Type of Company Pre-Testing Start Date Testing Start Date
CAF Phase II (Price Cap carriers) January 1, 2020 July 1, 2020
Rural Broadband Experiment Winners January 1, 2021 January 1, 2022
Alaska Plan Companies January 1, 2021 January 1, 2022
A-CAM I Companies January 1, 2021 January 1, 2022
A-CAM I Revised Companies January 1, 2021 January 1, 2022
A-CAM II Companies January 1, 2022 January 1, 2023
Legacy Rate of Return Companies January 1, 2022 January 1, 2023
CAF Phase II Auction Winners January 1, 2022 January 1, 2023
New NY Broadband Program Carriers January 1, 2022 January 1, 2023

Please contact John Kuykendall, Valerie Wimer or Cassandra Heyne in JSI’s Maryland office at 301-459-7590 with any questions you have regarding the broadband testing requirements.