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State of Indiana Indiana Utility Regulatory Commission Application of Ltd Broadband Llc for ) Designation As an Eligible ) Tele

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State of Indiana Indiana Utility Regulatory Commission Application of Ltd Broadband Llc for ) Designation As an Eligible ) Tele STATE OF INDIANA INDIANA UTILITY REGULATORY COMMISSION APPLICATION OF LTD BROADBAND LLC FOR ) DESIGNATION AS AN ELIGIBLE ) TELECOMMUNICATIONS CARRIER FOR THE ) Docket No. 41052 ETC-96 PURPOSE OF PROVIDING SERVICES SUPPORTED ) BY THE FCC’S RURAL DIGITAL OPPORTUNITY ) FUND ) INDIANA EXCHANGE CARRIER ASSOCIATION, INC. D/B/A INDIANA RURAL BROADBAND ASSOCIATION’S REQUEST FOR ADMINISTRATIVE NOTICE Indiana Exchange Carrier Association, Inc. d/b/a Indiana Rural Broadband Association (“INRBA”), by counsel, pursuant to 170 IAC 1-1.1-21.5, respectfully requests that the Indiana Utility Regulatory Commission (“Commission”) take administrative notice of the following facts as set forth in the referenced attached documents: 1. LTD Broadband LLC was notified by the Federal Communications Commission (“FCC”) of its apparent liability for forfeiture in the amount of $3,563 for its willful violation of Section 1.21004(a) of the FCC’s rules and the procedures established specifically for Auction 903 in the FCC’s Phase II Auction Procedures Public Notice. This fact is set forth in the Notice of Apparent Liability for Forfeiture, attached hereto as Exhibit A. 2. As recently as February 25, 2019, LTD Broadband LLC requested a waiver of the CAF Phase II Auction deadline for filing audited financial statements on the grounds that it was a small business with a limited number of employees and administrative resources, that it was not audited in the ordinary course of business, and that its efforts to retain and engage accountants within the required time frame were unsuccessful. This fact is set forth in the Connect America Fund Phase II Auction release, attached hereto as Exhibit B. 3. With respect to the Rural Digital Opportunity Fund (“RDOF”) auction (“Auction 904”), the FCC has established four performance tiers (minimum, baseline, above baseline and gigabit), and RDOF recipients must provide broadband service to meet specifications of the performance tier in which they bid during Auction 904. Specifically, Auction 904’s gigabit performance tier requires the provision of broadband service with speeds of at least 1Gbps downstream and 500Mbps upstream and at least 2TB of monthly usage allowance. Additionally, the FCC has established two latency tiers (high and low), and RDOF recipients must provide broadband service to meet the latency tier in which they bid during Auction 904. Specifically, the low-latency tier requires latency less than or equal to 100ms. These facts are set forth in the RDOF Order attached hereto as Exhibit C. 4. With respect to Auction 904, the FCC has established service milestones that RDOF recipients must meet in order to receive RDOF support. Specifically, the FCC requires that RDOF recipients commercially offer voice and broadband service to 40 percent of their awarded locations in a state by the end of the third full calendar year following funding authorization, and 20 percent each year thereafter. This fact is set forth in the RDOF Order attached hereto as Exhibit C. 5. The FCC presumes that an entity seeking designation as an eligible telecommunications carrier (“ETC”) for purposes of being eligible to receive RDOF support acted in good faith in pursuing said designation if it filed its ETC application within thirty (30) days of the release of the FCC’s public notice announcing that it is a winning bidder. This fact is set forth in the RDOF Order attached hereto as Exhibit C. 6. The Minnesota Department of Commerce (“MDC”) noted in comments filed January 8, 2021 in the Minnesota Public Utilities Commission’s (“MPUC”) Docket No. P999/CI-20-747 (Inquiry into Advertising, Outreach and Offering of Lifeline by High Cost ETCs) that LTD had no information on its website concerning Lifeline services even though it was obligated to do so as the recipient of federal funds as a winner in the Connect America Fund Phase II auction and that LTD had not filed comments or provided information in response to the MPUC’s Lifeline Inquiry. This fact is set forth in the MDC’s comments attached hereto as Exhibit D. 7. The FCC announced that LTD was a winning bidder in Auction 904, including with respect to certain census blocks in Indiana, on December 7, 2020. This fact is set forth in the FCC’s RDOF winning bidders release attached hereto as Exhibit E. 8. The attached documents are true and correct copies of materials of record and in the FCC’s official files, and therefore, all are appropriately subject to administrative notice pursuant to 170 IAC 1-1.1-21.5. Notice of this request is being provided to all parties in this proceeding, and copies of the referenced materials have been attached to the present motion. WHEREFORE, INRBA respectfully requests that the Commission take administrative notice of the facts described herein, as set forth in the attached documents, admit those facts and documents as part of the record in this proceeding, and provide such further relief as may be appropriate. Respectfully submitted, By: __/s/ Jeremy L. Fetty_______________ Jeremy L. Fetty (26811-06) Erin C. Borissov (27745-49) Aleasha J. Boling (31897-49) PARR RICHEY FRANDSEN PATTERSON KRUSE LLP 251 N. Illinois Street, Suite 1800 Indianapolis, Indiana 46204 Telephone: (317) 269-2500 Facsimile: (317) 269-2514 Email: [email protected] [email protected] [email protected] Attorneys for Indiana Exchange Carrier Association, Inc. d/b/a Indiana Rural Broadband Association CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing has been electronically served upon the following on May 3, 2021: Indiana Office of Utility Consumer Counselor Nikki G. Shoultz 115 W. Washington Street, Suite 1500 South Bose McKinney & Evans Indianapolis, Indiana 46204 111 Monument Circle - Suite 2700 [email protected] Indianapolis, IN 46204 [email protected] Kristopher Twomey Corey Hauer Law Offices of Kristopher E. Twomey LTD Broadband LTD 1725 I Street, NW Suite 300 69 Teahouse Street Washington, D.C. 20006 Las Vegas, NV 89138 [email protected] [email protected] /s/ Jeremy L. Fetty Jeremy L. Fetty (26811-06) 1645394 Exhibit A OUCC Admin Notice 1 Federal Communications Commission DA 19-950 Before the Federal Communications Commission Washington, DC 20554 ) In the Matter of ) ) LTD Broadband LLC ) File No.: EB-IHD-19-00029977 ) FRN No.: 0020926788 ) NAL/Acct. No.: 202032080009 Applicant for Phase II Connect America Fund ) ) ) NOTICE OF APPARENT LIABILITY FOR FORFEITURE Adopted: October 11, 2019 Released: October 11, 2019 By the Chief, Enforcement Bureau: I. INTRODUCTION 1. The Connect America Fund (CAF) Phase II (CAF-II) 1 Auction (Auction 903) was conducted to award financial support to service providers who committed to increasing broadband services in areas of great need. The Federal Communications Commission (FCC or Commission) took steps to protect the integrity and proper functioning of Auction 903 by advising auction participants to diligently prepare to meet all auction requirements and by establishing a penalty for default. LTD Broadband LLC (LTD Broadband or Company),2 was a winning bidder in Auction 903, but withdrew its application for support before receiving its award. By defaulting on its winning bids, the Company hindered the disbursement of funds that could have otherwise been productively used to increase broadband access to unserved or underserved areas. Accordingly, we propose a penalty of $3,563 on the Company for apparently defaulting on its winning bids. II. BACKGROUND 2. LTD Broadband, formed as a Nevada Limited Liability Company in 2011, provides broadband service to rural and non-rural areas in the Midwest.3 The Company has over 1,500 tower sites in Iowa, Minnesota, Nebraska, and South Dakota.4 1 The Connect America Fund Phase II is part of the Commission’s reform and modernization of its universal service support programs. 2 Any entity that is a “Small Business Concern” as defined in the Small Business Act (Pub. L. 85-536, as amended) may avail itself of rights set forth in that Act, including rights set forth in 15 U.S.C. § 657, “Oversight of Regulatory Enforcement,” in addition to other rights set forth herein. 3 See LTD Broadband, About Us, https://ltdbroadband.com/about (last visited Sep. 24, 2019). 4 Id. OUCC Admin Notice 1 Federal Communications Commission DA 19-950 3. The Commission conducted Auction 903 between July 24, 2018 and August 21, 2018, to allocate CAF-II monetary support to certain eligible areas5 across the United States. Auction 903 was slated to award up to $198 million in annual support, a total of $1.98 billion over ten years, in ongoing high-cost universal service support to service providers that committed to offering voice and broadband services in unserved areas.6 Using a multiple-round, reverse auction, Auction 903 was intended to close the digital divide for all Americans, including those in the rural areas of our country.7 4. In establishing procedures for Auction 903, the Commission was explicit as to the requirements a bidder must meet and the consequences for falling short of those requirements, including the penalties for default.8 In a February 1, 2018 Public Notice (Phase II Auction Procedures Public Notice), the Commission established a bidding process with clear dates and deadlines.9 Each bidder was first required to file FCC Form 183 (Short-Form Application) no later than March 30, 2018.10 Bidders were required to provide information in the Short-Form Application that demonstrated their baseline financial qualifications and technical capabilities in order to establish eligibility.11
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