What is the BEAD challenge process, and is participating worth the effort?

As part of the Broadband Equity, Access, and Deployment (BEAD) Program, the National Telecommunications and Information Administration (NTIA) requires all Eligible Entities (i.e., U.S. states and territories) to conduct a statewide challenge process, based on a prescribed model. The BEAD challenge process finalizes which broadband serviceable locations (BSLs) and community anchor institutions (CAIS) in the Fabric are eligible for BEAD funding in each state or territory

Some eligible entities have already completed the challenge process, but a majority are preparing to start in the next couple of months. As state broadband offices ramp up outreach across the country, community leaders will need to decide if and how to participate in the process.

BEAD challenge process overview

Nonprofits, local and Tribal governments, and ISPs can submit challenges through their state/territory broadband office’s online portal. Each challenge can take anywhere from 90 to 120 days and includes the following steps:

1. The state/territory broadband office submits a list of BSLs with enforceable commitments from federal, state/territory, and local funding sources to the NTIA and removes them from the locations eligible for BEAD funding (called “funding deduplication”).
2. The state/territory broadband office publishes the locations deemed eligible for BEAD funding as well as locations considered served.
3. Challengers have 30 calendar days to submit their availability/performance challenge and supporting evidence through the broadband office’s online challenge portal.
4. The applicable ISP or CAI is notified of the challenge and has 30 calendar days to provide a rebuttal with supporting evidence, or the challenge will be sustained.
5. The state/territory broadband office makes the final determination — declaring the challenge sustained or rejected — within 30 calendar days.

What are valid reasons to challenge state broadband data?

The NTIA permits entities to challenge BSL eligibility based on the following factors:

• Availability of a specific service at the BSL
• Speed of service at the BSL
• Latency of service at the BSL
• Data caps on all service tiers
• Technology delivered at the BSL
• BSL only has access to business service
• BSL is subject to an enforceable commitment
• Service will be deployed to the BSL (i.e., planned service)
• CAI designation of the BSL

States and territories must use the FCC’s National Broadband Map as the basis for their BEAD challenge process. They may not add or remove BSLs from the Fabric, but they may propose modifications to the list of BEAD-eligible locations to reflect missing data (e.g., fixed wireless and DSL changes).

Not all states accept all the allowed challenges. For example, Louisiana did not allow speed test submissions during their challenge process. Detailed information on allowable evidence and challenge types is available in Volume 1 of each eligible entity’s initial proposal.

Engaging in the challenge process

Being successful in challenging the eligibility of a BSL requires submitting data that is considered valid. In most cases, this data can include:

• Credible field documentation of the existence or lack of infrastructure
• Screenshots of provider websites indicating data caps, speed tiers, or lack of availability at a particular address
• Three different speed tests, taken by customers who subscribe to the highest tier of service, taken on consecutive days, within the “immediate proximity of the residential gateway.”

Keep in mind, the challenge process was designed to be difficult. In most cases, it will require time-intensive community outreach — and even door-to-door canvassing — due to the complexity of proof required to change a location to unserved or underserved. Finally, given the ISPs are permitted a rebuttal period, there is also no guarantee that the challenge data submitted will result in a change on the map.

Entities eligible to participate (nonprofits, local and Tribal governments and ISPs) need to determine, rather quickly, whether it is worth expanding the resources to challenge BSL service or eligibility.

Here are some questions that communities should consider when deciding the best way to proceed.

Have communities in other states/territories had success with their submitted challenges, or not?

Researching whether other state/territory broadband offices sustained or rejected challenges from non-profits or government entities can indicate if it’s worth the time and effort.

Virginia, for example, shared downloadable challenge determination data after their initial review, during which they rejected challenges lacking the minimum level of evidence (MLE) before moving challenges to the rebuttal phase. According to this data, 90% of all non-ISP submitted challenges were immediately rejected, most likely because the evidence required presented a significant obstacle to resource-constrained counties and non-profits.

If a community decides to mount a challenge campaign, they need to be strategic with their time and effort, devoting their resources to either submitting types of challenges that are easier to prove, or partnering with entities that have the expertise to submit a successful challenge, like a local ISP.

Which types of challenges are most likely to be sustained?

In almost all states, the burden of proof is on the consumers — who often do not have technical expertise — rather than the ISPs. For this reason, it can be helpful to think about what types of challenges are the most successful and therefore worth the effort.

In Virginia, 50% of all challenge types were rejected due to a lack of sufficient evidence. Speed and availability challenges made up about 82% of the submitted challenges, and no speed challenges made it past the initial MLE screening.

Depending on the evidence the broadband office requires, submitting an availability challenge might be a better option than focusing on speed challenges. In Virginia, about 60% of availability challenges were approved or marked as pending, which means they had sufficient evidence to prove a lack of broadband and progressed to the rebuttal phase.

Availability challenges could be easier to prove without high community engagement. For example, an ISP or community member with technical expertise could drive around the county and document where fiber infrastructure starts and stops in aerially built areas to target households that could mount a successful challenge. This could significantly decrease the amount of community outreach required compared to other evidentiary actions like collecting proof of high installation costs or documenting a lack of available service through letters or the provider’s website.

Is there value in engaging in the challenge process, regardless of submission success?

The short answer is yes.

Although the BEAD program will not solve all connectivity issues, putting the time and effort into creating an accurate, local data set will help communities prepare for solving connectivity gaps in the long term. If the data you are collecting will be useful for planning purposes outside of BEAD, make sure you store and own the data for future projects. g, There is also value in building coalitions that care about broadband improvement and that will continue working through BEAD and beyond. _________________________________________________________________

If you’re still wondering if (and how) your community can challenge BEAD eligibility, the Center on Rural Innovation (CORI) offers 25-hour broadband technical assistance sprints to rural communities at no cost. Please fill out this short form to get in touch or email us at broadband@ruralinnovation.us.