Establishing a 5G Fund for Rural America

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 1 and 54

[GN Docket No. 20-32; FCC 20-150; FRS 17211]

Establishing a 5G Fund for Rural America

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission or FCC) acts on its proposal to retarget universal service funding for mobile broadband and voice in the high-cost program to support the deployment of 5G services by establishing the 5G Fund for Rural America as a replacement for the Mobility Fund Phase II and adopting the basic framework for implementing the 5G Fund.

DATES:

Effective December 28, 2020, except for §§ 1.21001(b)(1), 1.21001(b)(2), 1.21001(b)(3), 1.21001(b)(4), 1.21001(b)(5), 1.21001(b)(6), 1.21001(b)(7), 1.21001(b)(8), 1.21001(b)(9), 1.21001(b)(10), 1.21001(b)(11), 1.21001(b)(12), 1.21001(b)(13), 1.21001(e), 1.21002(e), 1.21002(f), 54.313(n), 54.322(b), 54.322(c)(4), 54.322(g), 54.322(h), 54.322(i), 54.322(j), 54.1014(a), 54.1014(b)(2), 54.1016(b), 54.1018(a), 54.1018(b), 54.1018(c), 54.1019(a)(1), 54.1019(a)(2), 54.1019(a)(3), 54.1019(a)(4), 54.1020(a), 54.1020(b), 54.1020(c)(1), and 54.1020(c)(2), which are delayed and for which we will publish a document in the

Federal Register

announcing the effective date.

ADDRESSES:

Federal Communications Commission, 45 L Street NE, Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT:

Valerie M. Barrish, Office of Economics and Analytics, Auctions Division, (202) 418-0660 or

Valerie.Barrish@fcc.gov.

For information regarding the PRA information collection requirements contained in this PRA, contact Cathy Williams, Office of Managing Director, at (202) 418-2918 or

Cathy.Williams@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's

5G Fund Report and Order

in GN Docket No. 20-32, FCC 20-150, adopted on October 27, 2020 and released on October 29, 2020. The full text of this document is available on the Commission's website at

https://www.fcc.gov/document/fcc-establishes-5g-fund-rural-america-0.

To request materials in accessible formats for people with disabilities, send an email to

FCC504@fcc.gov

or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Synopsis

I. Introduction

1. Our nation is at the dawn of the 5G era of wireless connectivity. Recently, nationwide mobile wireless providers have deployed 5G networks covering more than 200 million Americans. And today we ensure that all Americans benefit from the country's 5G future, no matter where they live. We act on our proposal to replace the Mobility Fund Phase II with the 5G Fund for Rural America and make certain that our limited Universal Service Fund dollars are directed to support the deployment of state-of-the art wireless networks that are more responsive, more secure, and faster than today's 4G LTE networks. Moreover, by establishing the 5G Fund, we further secure our nation's leadership in 5G, which will promote technological innovation in the United States, enhance our economic prosperity and protect our national security.

2. Many urban and suburban areas of our nation are already benefiting from the evolution to 5G networks. Nationwide providers have begun deploying 5G service in more populated parts of our country, with even more widely-available 5G service expected in the near future. For example, T-Mobile has made enforceable commitments to the Commission as part of its acquisition of Sprint to deploy 5G service covering 85% of the population in rural areas and 97% of all Americans within three years, with coverage rising to 90% of the population in rural areas and 99% nationwide within six years. Moreover, it committed to deploy 5G service meeting minimum download speed performance benchmarks of at least 50 Mbps available to 90% of the rural population, with two-thirds of rural Americans able to receive download speeds of at least 100 Mbps. Late last year, T-Mobile announced that it switched on its 5G network across the nation using low-band spectrum.

3. 5G networks will improve the lives of Americans living and working in rural areas by providing much needed access to telehealth, telework, remote learning opportunities, precision agriculture, and other services and applications. We anticipate that the deployment of 5G-capable networks in rural areas will drive job creation and have a powerful impact on the nation's economy. The framework for the 5G Fund that we adopt today will bring technological innovation and economic benefits to the parts of our country that need them the most. We embark on this new 5G era recognizing that the next decade and beyond hold significant promise for rural America, and we envision that the 5G Fund will be an important catalyst to propel the nationwide deployment of networks capable of closing the digital divide, once and for all.

4. The 5G Fund for Rural America will use multi-round reverse auctions to distribute up to $9 billion, in two phases, bringing voice and 5G broadband service to those rural areas of our country that, absent subsidies, would be unlikely to see the deployment of 5G-capable networks. Based on lessons learned from the Mobility Fund, and overwhelming record support, we adopt our proposal to determine which areas will be eligible for 5G Fund support through improved mobile broadband coverage data that will be gathered through the Commission's Digital Opportunity Data Collection proceeding. Although this approach will not be the fastest possible path to the Phase I auction, it will allow us to identify with greater precision those areas of the country where support is most needed and will be spent most efficiently.

II. Background

5. Since 2011, the Commission has taken numerous steps to comprehensively reform the universal service program to focus our limited funds on ensuring access to fixed and mobile broadband for unserved Americans living in rural, insular, and high cost areas of the country. As part of these efforts, in the

USF/ICC Transformation Order,

76 FR 73830, Nov. 29, 2011, the Commission froze high-cost support being provided to competitive eligible telecommunications carriers (ETCs), commenced a process to phase down this high-cost support over five years, and established a two-phased Mobility Fund to ensure that universal service support for mobile services would be targeted in a cost-effective manner. The Commission determined it would pause the phase down of the frozen “legacy” high-cost support for competitive ETCs to provide mobile wireless service at the 60% frozen support level in the event that the second phase of the Mobility Fund was not operational by July 1, 2014.

1

However, the Commission

planned to adopt additional mobile broadband public interest obligations as a condition for the continued receipt of such support if the legacy support phase down was paused at any point.

1

We use the term “legacy high-cost support” and “legacy support” herein to refer specifically to the high-cost support that was frozen in the

USF/ICC

Transformation Order

and is disbursed to competitive ETCs to provide mobile wireless service.

6. In Mobility Fund Phase I, the Commission awarded almost $300 million, along with an additional $50 million for Tribal Mobility Fund Phase I, in one-time universal service support through two reverse auctions. Before adopting rules for Phase II of the Mobility Fund, Commission staff conducted a review of mobile wireless providers' FCC Form 477 submissions to identify the specific areas of the country that were lacking 4G LTE coverage as well as to examine the efficiency of the distribution of legacy high-cost support. Staff analysis revealed that almost 75% of legacy high-cost support was being distributed to carriers in areas where 4G LTE service was already being provided by an unsubsidized provider. Furthermore, according to the report, only approximately 20% of the land area of the United States outside of Alaska either lacked 4G LTE service entirely or had 4G LTE service provided only by a subsidized carrier. Mobile wireless carriers were therefore receiving approximately $300 million or more each year in subsidies that were unnecessary to ensure the continued availability of 4G LTE service in those areas.

7. Recognizing the need to redirect universal service funds to target areas of the country that were unlikely to receive 4G LTE service without subsidies, in its 2017

Mobility Fund Phase II Report and Order,

82 FR 15422, Mar. 28, 2017, the Commission adopted rules to move forward with Mobility Fund Phase II, and established the framework for a challenge process to resolve disputes about areas that were found to be presumptively ineligible for support. Mobile wireless providers were required to submit 4G LTE coverage maps by January 4, 2018, to be followed by a process in which parties could challenge the submitted coverage maps. In December 2018, after questions over the accuracy of the submitted coverage maps arose, the Commission launched an investigation into the 4G LTE coverage data submitted by some providers and suspended the response phase of the Mobility Fund Phase II challenge process pending the investigation.

8. On December 4, 2019, the Rural Broadband Auctions Task Force released a staff report on the results of that investigation. Staff determined that the Mobility Fund Phase II coverage maps submitted by certain carriers overstated actual coverage and did not reflect on-the-ground performance in many instances. The staff report recommended that the Commission terminate the challenge process, concluding that the coverage maps were not a sufficiently reliable or accurate basis upon which to complete the challenge process as designed.

9. On April 23, 2020, we adopted the

5G Fund NPRM,

85 FR 31616, May 26, 2020, which proposed to terminate the planned Mobility Fund Phase II auction and replace it with a 5G Fund for Rural America, using multi-round reverse auctions to distribute up to $9 billion to bring voice and 5G broadband service to rural areas of our country that are unlikely to see unsubsidized deployment of 5G-capable networks. We further proposed to modernize frozen mobile legacy support in order to ensure that advanced networks are deployed in areas served by providers continuing to receive legacy support.

III. Discussion

10. To meet our obligation of ensuring that all Americans have access to services reasonably comparable to those in urban areas and to achieve our goal of ensuring that all Americans experience the benefits of next-generation 5G technology, we now adopt a path forward for the 5G Fund for Rural America. The rapid pace of deployment of 5G networks in many parts of the country, combined with T-Mobile's commitment to cover 90% of rural Americans with its 5G network, supports our conclusion that it is no longer the time to begin a 10-year support program to deploy 4G LTE networks. We adopt our proposals to replace Mobility Fund Phase II with the 5G Fund for Rural America and to distribute up to $9 billion in universal service support to bring mobile voice and 5G broadband service to rural areas of our country. In adopting our proposal to replace Mobility Fund Phase II with the 5G Fund, we terminate the Mobility Fund Phase II challenge process and dismiss as moot several petitions for waiver in that proceeding which are unnecessary to address given the termination of the Mobility Fund Phase II challenge process. We also adopt our proposals to impose 5G public interest obligations and performance requirements on carriers continuing to receive legacy mobile high-cost support to help ensure that the areas they serve enjoy the benefits that 5G promises. Our actions here will ensure that rural communities can connect to the digital economy and benefit from the opportunities for enhanced education, employment, healthcare, and civic and social engagement that access to advanced mobile broadband communications can provide.

A. Collecting New Mobile Coverage Data Before Funding 5G Rural America

11. We adopt our proposal, known in the

5G Fund NPRM

as Option B, to award 5G Fund support based on new, more precise, verified mobile coverage data collected through the Commission's Digital Opportunity Data Collection. While the Commission continues to lack a congressional appropriation necessary to implement the new data collection, we believe—and the record supports our view—that the risk of any delay in holding an auction is outweighed by the ability to target auction support with greater precision. That risk is further mitigated by the public interest obligations we adopt for competitive ETCs that receive legacy high-cost support for mobile wireless services.

12. In proposing to establish a 5G Fund for Rural America, we sought comment on two different options to determine the areas that would be eligible for support in the Phase I auction: One would be based upon existing governmental data on the ruralness of an area and allow us to proceed more quickly to the auction, and the other would be based upon new mobile coverage data but would, by necessity, delay the start of the auction. These two approaches represented a fundamental tradeoff between more precisely targeting support to areas that need it and the time required to collect, process, and analyze the data necessary for such precision. In the

5G Fund NPRM,

we estimated that basing 5G Fund eligibility on the new collection of mobile coverage data would add 18-24 months to the process of preparing for an auction, even if Congress were to appropriate funds sufficient to implement the statute, which it still has not done.

13. Most commenters urge us to collect new mobile coverage data prior to holding the 5G Fund Phase I auction, with some citing in particular the findings of the

Mobility Fund Phase II Investigation Staff Report.

We agree that requiring new mobile coverage data will result in a better understanding of the unserved areas most in need of our limited universal service funds than existing data.

14. We disagree with those comments arguing that the Broadband Deployment Accuracy and Technological Availability (Broadband DATA) Act

expressly prohibits the award of 5G Fund support until after collecting new mobile coverage data, precluding Option A. The Broadband DATA Act requires the Commission to collect mobile coverage data generated using standardized parameters and, from these data, release mobile broadband deployment maps. “[A]fter creating the maps[,]” the statute requires the Commission to use those maps when awarding new funding to deploy broadband service. We agree with RWA that the language of the Broadband DATA Act does not prevent us from awarding support prior to creating the mobile broadband deployment maps in the Digital Opportunity Data Collection. As RWA notes, the plain wording of the statute is clear that the Commission “is required to use new maps to award funding, but only `after' such maps are created.” We therefore conclude that the statute does not yet impose any limitations on the data we may use to award new funding.

15. Several commenters support moving forward quickly with the 5G Fund Phase I auction based on existing U.S. Census Bureau and U.S. Department of Agriculture data under our Option A proposal, or some variant of it. We recognize the pressing need to bring 5G to unserved rural areas; however we agree with the concerns raised by some commenters that reliance upon 10-year-old U.S. Department of Agriculture data as a proxy for rurality and to award funding that will continue for an additional 10 years risks both directing support to areas where support is not needed and also missing areas where support is needed. Option B will allow us to more efficiently allocate 5G Fund support by identifying areas that are already served by an unsubsidized provider and thus should not be ineligible for support. Establishing eligibility under Option A using a degree of rurality would not have allowed us target funds in this manner. We conclude, therefore, that on balance it is not in the public interest to follow the Option A approach. We also decline to adopt the 5G Fund Supporters' proposal for an “Initial Tranche” of support targeted at particular historically disadvantaged communities that this commenter contends should be given priority because of similar concerns about the accuracy of available data. We will take all appropriate steps to implement Option B as quickly as we can without jeopardizing the quality or accuracy of the new data we will collect.

16. While urging us to first collect new mobile coverage data, many commenters supporting Option B make various suggestions for expediting the Phase I auction. We agree on the need to move quickly toward an auction and will take steps to minimize the delay caused by our decision. However, we disagree with suggestions that we should collect new mobile coverage data prior to implementation of the Digital Opportunity Data Collection. We are unconvinced that those approaches would provide reliable coverage data in a shorter timeframe. In particular, while carriers may have experience generating and submitting mobile coverage data as part of their required FCC Form 477 filings, or as part of the one-time collection of 4G LTE coverage data for Mobility Fund Phase II, we would need to develop the processes and IT systems necessary to allow for the submission and verification of mobile coverage data and allow for a public-facing challenge process regardless of whether or not the collection is implemented through the Digital Opportunity Data Collection. Although we have recently adopted new requirements for the Digital Opportunity Data Collection stemming from the Broadband DATA Act, the Commission still lacks funding to implement the statute's requirements. Implementation of any alternative data collection and public challenge process would run into the same logistical and funding hurdles, and staff estimates it would take at least as long to complete. Such arguments also overlook the fact that we originally tasked the Universal Service Administrative Company (USAC) with implementation of the Digital Opportunity Data Collection, work which came to a halt when Congress expressly prohibited the Commission from delegating responsibility for these tasks to USAC in the Broadband DATA Act.

B. Determining Eligible Areas Using Updated Mobile Coverage Data

17. We will determine the areas eligible for support in the 5G Fund Phase I auction based upon where new mobile coverage data submitted in the Digital Opportunity Data Collection show a lack of unsubsidized 4G LTE and 5G broadband service by at least one service provider, broadly in line with our Option B proposal. In determining which areas are subsidized for this purpose, we will use Geographic Information Systems (GIS) data from USAC delineating the boundaries of the subsidized service areas of each competitive ETC receiving mobile legacy high-cost support. While most providers are still in the early stages of deploying their 5G networks in rural areas, we expect that a new collection of mobile coverage data in 2021 or 2022 will show significant 5G broadband deployments. Because these areas will have already seen deployment of 5G without subsidy, we will exclude such areas from eligibility consistent with our longstanding policy of avoiding overbuilding competitive networks. Moreover, we will also exclude from eligibility those areas where new coverage data gathered in the Digital Opportunity Data Collection show unsubsidized 4G LTE networks have been deployed. Given the rapid state of competitive 5G deployment in the marketplace, combined with enforceable merger commitments from T-Mobile, we believe that subsidizing 5G deployments where unsubsidized 4G LTE networks have been deployed is unnecessary and risks preempting reasonably near-term 5G deployments we could expect in those areas.

18. Commenters that support Option B also generally support our proposal to define as eligible those areas where new coverage data show a lack of 4G LTE broadband service. However, one commenter suggests also making eligible under Option B those areas that historically lacked 4G LTE service. Given the potential for allocating inefficient support to areas more likely to see competitive 5G deployments and concerns over the accuracy of historical FCC Form 477 and Mobility Fund Phase II 4G LTE mobile coverage data, we are unconvinced that there is a meaningful basis upon which to allocate support to some areas otherwise served by unsubsidized 4G LTE networks. We likewise decline to prioritize any areas based upon historical 3G and 4G LTE coverage data. While we proposed a similar approach in the context of Option A, we conclude that such prioritization is unnecessary in light of our decision to base eligibility on more precise Digital Opportunity Data Collection maps. Moreover, our concerns with developing a meaningful way to incorporate less reliable historical data sources into our eligibility determinations are equally applicable. There is likely significant overlap between areas that have historically lacked 3G or 4G LTE service and the areas that currently lack unsubsidized 4G LTE service, more than 10 years after the technology was first deployed. Moreover, we believe that use of an adjustment factor that considers terrain and potential business case will provide adequate prioritization to ensure historically underserved or unserved areas will receive support in the Phase I auction.

19. We adopt our proposal to exclude from eligibility for the 5G Fund those areas in Alaska, for which high-cost

support is provided via the mobile portion of the Alaska Plan, as well as areas in Puerto Rico and the U.S. Virgin Islands where the Commission has already provided high-cost support, including support for 5G mobile broadband, a proposal that RWA supports. We disagree with commenters suggesting that the Commission include Alaska in the roll out of the 5G Fund. The Commission established the Alaska Plan in 2016 for a 10-year term, apart from earlier efforts to reform the mobile high-cost program due to the “`uniquely challenging operating conditions'” in Alaska. The Commission explained in the

Mobility Fund Phase II Report and Order

that because it “adopt[ed] the Alaska Plan for mobile carriers as an Alaska-specific substitute mechanism for mobile high-cost support, . . . there will be no support provided under Mobility Fund Phase II or Tribal Mobility Fund Phase II for mobile services within Alaska.” Since we today establish the 5G Fund to replace Mobility Fund Phase II, we similarly conclude that the Alaska Plan should remain the sole high-cost support mechanism for mobile carriers in Alaska. Moreover, we do not believe the framework that we adopt for the 5G Fund is appropriate for Alaska given the unique circumstances faced by carriers deploying mobile services in that state, and because it would undermine the comprehensive support mechanism the Commission adopted to address those challenges.

C. Framework for the 5G Fund

20. We adopt the basic framework we proposed for the 5G Fund for Rural America, with a few specific modifications to the requirements we proposed for competitive ETCs receiving legacy high-cost support for mobile wireless service. We will require both legacy high-cost support recipients and 5G Fund auction support recipients to meet public interest obligations to provide voice and 5G broadband service, and to satisfy distinct, measured performance requirements as a condition of receiving support. Recipients of both legacy high-cost support and 5G Fund auction support must meet minimum baseline performance requirements for data speed, latency, and data allowance, including: (1) Deploying 5G networks that meet at least the 5G-NR (New Radio) technology standards developed by the 3rd Generation Partnership Project with Release 15 (or any successor release that may be adopted by the Office and Bureau after appropriate notice and comment) with median download and upload speeds of at least 35 Mbps and 3 Mbps with minimum cell edge download and upload speeds of 7 Mbps and 1 Mbps; (2) meeting end-to-end round trip data latency measurements of 100 milliseconds or below; and (3) offering at least one service plan that includes a minimum monthly data allowance that is equivalent to the average United States subscriber data usage. We adopt performance goals and measures for the 5G Fund similar to those that the Commission has implemented in recent high-cost support proceedings and direct the Office and Bureau to adopt others. Designing and adopting oversight and accountability measures when adopting a new or modified universal service program not only ensures that the Commission meets its obligations under the Act, but also facilitates our compliance with government-wide obligations for the efficient and effective design and implementation of federal programs.

21. These performance requirements, along with public interest obligations for reasonably comparable rates, collocation, and voice and data roaming, will ensure that rural areas receive service comparable to high-speed, mobile broadband service available in urban areas. We also adopt interim and final 5G service deployment milestones for 5G Fund auction support recipients, and reporting requirements to monitor the progress of all recipients in meeting the distinct performance requirements that we adopt.

1. Establishing a Two-Phased 5G Fund for Rural America

22. We adopt our proposal to award support from the 5G Fund for Rural America through a competitive reverse auction in two phases. In Phase I, we will target support nationwide to all eligible rural areas that lack unsubsidized 4G LTE and 5G broadband service, and in Phase II we will focus support to specifically target the deployment of technologically innovative 5G networks that facilitate precision agriculture.

23. We conclude that a reverse auction is the appropriate mechanism for allocating scarce universal service resources to the carriers that will use them most efficiently. The Commission has long endorsed competitive bidding for distributing support. In the

USF/ICC Transformation Order,

the Commission recognized the value of competitive bidding for awarding award high-cost support, both fixed and mobile, noting that a reverse auction “is the best available tool for identifying” areas where support can make the largest difference, as well as the associated support amounts. In the existing mobile legacy high-cost support program, on the other hand, neither the areas for which legacy support is currently disbursed nor the amount of support carriers receive have a direct nexus to the areas most in need of support or the amount needed to provide service therein.

24. Our experience using competitive bidding in the Mobility Fund Phase I, Tribal Mobility Fund Phase I, and Connect America Fund Phase II auctions confirms the Commission's prediction that it is the most efficient and effective mechanism for awarding universal service support. An auction mechanism allows us to distribute support in a transparent, speedy, and efficient manner, and provides a straightforward means of identifying those providers that are willing to provide 5G service at the lowest cost to the Universal Service Fund by determining support levels that winning bidders are willing to accept in exchange for the public interest obligations and performance requirements we impose.

25. Consistent with our decision to base eligibility on new, granular Digital Opportunity Data Collection mobile broadband coverage data, as well as our decision to adopt 5G performance requirements and public interest obligations for legacy high-cost recipients, we decline to adopt RWA's proposal for a three-phase approach that would award support to certain existing legacy high-cost recipients. Under RWA's proposal, the 5G Fund would create a $1.5 billion “Phase 0” for current legacy support recipients with 500,000 or fewer subscribers so that those carriers could build out 5G in areas eligible under Option A before proceeding to an auction with remaining funds. NTCA supports RWA's three-phase proposal, but proposes that the Commission should base eligible areas for both the Phase I and Phase II auctions on Option B.

26. RWA argues that its approach would provide certainty to small rural carriers and promote faster 5G deployment, while NTCA claims that its approach can leverage existing high-cost support recipients' networks. Based on the record before us, and our experience with competitive bidding mechanisms, we are not convinced that this approach would be a more efficient or effective means of awarding support than an auction. We are unpersuaded that a three-phase approach improves our ability to better target support or to significantly accelerate 5G deployment in rural areas. While we do not doubt that recipients of mobile legacy high-

cost support have been “good stewards of universal service funds” as NTCA states, neither proposal is consistent with our decade-long efforts to reform universal service high-cost support. Moreover, to the extent RWA and NTCA are correct that carriers receiving legacy high-cost support can deploy 5G networks in their service areas more efficiently, we anticipate they will have an advantage against bidders that do not already serve those eligible areas in the auction.

27. We agree with AT&T that implementing a Phase 0 approach risks continuing to provide legacy high-cost support to fund service in areas that may already have unsubsidized 4G LTE (or even 5G) service from one or more providers. Further, we agree with T-Mobile that setting aside funds for a limited subset of providers would be an inefficient use of our scarce resources, and could limit our ability to expand 5G coverage to as many unserved areas as possible. This concern is amplified by the fact that we would risk overpaying for 5G networks in some areas that another provider (or even the same legacy support recipient) would be willing to serve for less support through an auction.

2. Budget

28. We adopt a budget of $9 billion for the 5G Fund, to be awarded in two phases: Up to $8 billion for Phase I, of which we will reserve $680 million of support for service to Tribal lands, and at least $1 billion in Phase II, as well as any unawarded funds from Phase I. We further adopt our proposal to repurpose the Mobility Fund Phase II budget for the 5G Fund.

29. Given the apparent overstatement of coverage data the Commission staff investigation discovered, we anticipate that the more precise and granular mobile broadband coverage data that will become available in the Digital Opportunity Data Collection proceeding will show that the number of areas unserved by unsubsidized 4G LTE is greater than the Commission originally estimated, and the number of areas unserved by 5G will likewise be substantial. Insofar as almost two years have passed since the Commission ceased the Mobility Fund II challenge process, however, we note that some carriers will have expanded their 4G LTE footprint; therefore, all of the areas that were eligible for a Mobility Fund II auction may not be eligible for a 5G Fund Phase I auction. The deployment of networks capable of providing this 5G service undoubtedly will be expensive, particularly given the need to build high quality infrastructure beyond just our rural roadways. We therefore conclude that significantly more funds than those budgeted for Mobility Fund Phase II will be necessary to achieve our rural 5G goals. By repurposing the entire $4.53 billion budget originally adopted for Mobility Fund Phase II, and essentially doubling our financial commitment to deploying mobile broadband in rural areas, we will have a greater likelihood of achieving the Commission's goals while incentivizing carriers to participate in the auction.

30. In establishing the total budget for the 5G Fund, we are mindful that the cost of universal service programs is ultimately borne by the consumers and businesses that pay to fund these programs, and we have a corresponding obligation to exercise fiscal responsibility by avoiding excessive subsidization and overburdening communications consumers. Courts have recognized that over-subsidizing universal service programs can actually undermine the statutory principles set forth in section 254(b) of the Communications Act of 1934, as amended (the Act). With this in mind, we adopt a 5G Fund budget that seeks to balance the various competing objectives in section 254 of the Act, including the objective of providing support that is sufficient, but not so excessive so as to impose an undue burden on consumers and businesses. Our approach is consistent with judicial interpretation of these objectives, as well as our own.

31. As we have repeatedly emphasized since we began reforming of our universal service programs, ratepayer funds are not unlimited and must be prioritized to achieve our policy goals. We conclude that the budget of $8 billion that we adopt today for Phase I of the 5G Fund incentivizes competition from carriers that wish to participate in the Phase I auction in order to deploy 5G consistent with the public interest obligations and performance requirements we propose for the 5G Fund. We further conclude that a budget of at least $1 billion for Phase II of the 5G Fund will be necessary for carriers to commit to the deployment of technologically innovative 5G networks that facilitate precision agriculture. Dedicating at least $1 billion to this second phase of the 5G Fund will help close the remaining digital divide but also direct funds to networks supporting innovative agricultural solutions, increasing our nation's economic efficiency and encouraging economic growth in rural areas, especially in vast areas of agricultural lands that currently remain unserved.

32. For these same reasons, we decline to allot a larger portion of the total 5G Fund budget to the Phase II auction, as some commenters suggest. Such an approach risks significantly increasing the number of areas that remain unserved after the Phase I auction. Moreover, because the amount of funds necessary to cover the phase down of legacy high-cost support will not be known until the conclusion of the Phase I auction, we decline to reduce the Phase I budget by the amount necessary to fund the phase down, which should provide maximum certainty to prospective bidders.

33. Although some commenters suggest that the total budget may be insufficient to deploy 5G networks to all eligible areas, none of those commenters proposed an alternative amount for the total 5G Fund budget. Those same commenters also support reassessing the Phase II budget following Phase I. Aside from the commenters suggesting a three-phase approach for the 5G Fund, no commenters addressed our request for comment on an alternative total budget.

34. Although it did not offer an alternative total budget amount, we note that AST&Science comments that we should “earmark a small portion (10% to 15%) of the 5G Fund for “

qualified applicants

who commit to use innovative, non-traditional systems to serve

areas that are highly unlikely to receive service

even with the benefit of support.” We decline to adopt this suggestion, as we have others, because it does not serve our primary policy goal of awarding support to as many eligible areas as possible with the limited funds available. For the same reason, we decline to adopt Lynk Global Inc.'s request that we set aside 1% of the 5G Fund as a reimbursable expense to satellite operators that successfully enable access to connectivity via mobile phones everywhere in the United States and its territories.

35. We acknowledge concerns of commenters that contend that funds necessary to deploy 5G-capable networks in rural areas may be significantly higher than our total 5G Fund budget. The Commission's experience in the CAF Phase II auction demonstrates that competitive bidding can bring costs below projections: The aggregate reserve price of more than 713,000 locations assigned in that auction was $5 billion, compared to total winning bids of $1.5 billion. Moreover, we anticipate that many providers will use private capital in conjunction with the 5G Fund support they receive to build their 5G networks. By establishing the budget at $9 billion, we also recognize the risk of

overburdening consumers that contribute to the Universal Service Fund. Of course, the Commission will have the opportunity to reassess the Phase II budget following Phase I in the event it determines it is insufficient.

3. Support for Tribal Lands

36. We adopt our proposal to reserve up to $680 million of the $8 billion 5G Fund Phase I budget to support networks serving eligible areas in Tribal lands. Under the approach we adopt, only eligible areas on Tribal lands will be assigned support from this reserve. This doubles the minimum amount that the Commission intended to reserve to support Tribal lands from the Mobility Fund Phase II budget. Most commenters favored our proposal to reserve support for Tribal lands in the 5G Fund, but some express concern that $680 million will still be insufficient to ensure that these areas receive reasonably comparable service at affordable prices. We are mindful of these concerns, and we recognize that deploying networks that support 5G service will require a significant undertaking, particularly on Tribal lands where services often lag behind even non-Tribal rural lands. For those reasons, we acknowledge that we may need to revisit the amount of the budget reserved for Tribal lands after the conclusion of a Phase I auction, and, if necessary, we will do so at that time.

37. We adopt our proposal that bidding under the Tribal reserve budget and bidding under the unreserved portion of the budget will take place simultaneously as part of the single 5G Fund Phase I auction. The Cherokee Nation expresses concern with this approach maintaining that we should conduct additional auctions as needed to ensure that the support reserved for Tribal lands in the 5G Fund auction serves Tribal lands. These concerns are unwarranted. Contrary to the Cherokee Nation's assumption, conducting bidding simultaneously creates no disincentive for bidders because fewer bids on Tribal lands under the reserved Tribal lands budget will not lead to more funds being transferred to the unreserved budget. Rather, Tribal areas with winning bids will receive a greater share of the Tribal budget. Accordingly, we do not believe that reserving those funds for a subsequent auction for support for Tribal lands will be a timely or practical approach to enhance 5G Tribal land deployments.

38. Consistent with past practice, the details and final bidding procedures for a 5G Fund auction will be developed during our standard pre-auction process, and we anticipate that the procedures we adopt after notice and comment will ensure that support levels assigned from the Tribal reserve will not be less than support assigned from the unreserved budget, except possibly in cases where more than one bidder is competing for support in the same area.

39. We decline to adopt Smith Bagley, Inc.'s Remote Tribal Areas Plan, which proposes allowing carriers serving Tribal lands to participate in an opt-in funding plan similar to the Alaska Plan, as an alternative mechanism for providing support to remote Tribal areas. We are not convinced that this approach would improve the outcome on Tribal lands over awarding support to Tribal areas through a reverse auction. As the Commission explained in rejecting a similar proposal in the Mobility Fund Phase II proceeding, the Commission adopted the Alaska Plan not because of the existence of Tribal lands in Alaska, but because of the need for support to be flexible enough to accommodate Alaska's unique conditions, like its “remoteness, lack of roads, challenges and costs associated with transporting fuel, lack of scalability per community, satellite and backhaul availability, extreme weather conditions, challenging topography, and short construction season.” We again conclude that adopting such an approach for all remaining states would be inconsistent with our decision to use a reverse auction as an efficient mechanism for deciding where to allocate Tribal support. Based on the $680 million budget that we are reserving for support for Tribal lands, we anticipate that 5G Fund support will meaningfully flow to Tribal areas.

40. We also decline to adopt Standing Rock Telecommunications, Inc.'s request that we use a Tribal entity weighting factor as a mechanism to provide Tribal entities with the opportunity to become the winning bidder to provide supported 5G service on their Tribal lands. The $680 million reserved Tribal lands budget we adopt will create a powerful incentive for service providers to bid to serve Tribal lands. We are unpersuaded that creating a preference for a particular type of entity will advance our goals and produce greater deployment on Tribal lands. Indeed, including an additional weighting factor for Tribal entities could deter non-Tribal entities from bidding to serve Tribal lands, reducing both the competitiveness of the Phase I auction and the potential reach of our finite funds.

41.

Identifying Tribal Lands.

We adopt our proposal to amend the definition of “Tribal lands” in section 54.5 of the Commission's rules to allow for the designation of certain non-Tribal areas and communities as Tribal lands, consistent with the rules for the Lifeline program. All commenters who addressed this proposal support it. This designation process permits expansion of the definition of Tribal lands for the high-cost program upon an appropriate showing that certain areas or communities that fall outside the boundaries of existing Tribal lands—

i.e.,

off-reservation lands other than those already covered by the definition in section 54.5—have the same characteristics as existing Tribal lands. Although this designation process was adopted solely for the Lifeline program, the Commission previously has relied on precedent for the Lifeline program when adopting, interpreting, and expanding the definition of Tribal lands for purposes of the high-cost program. We find that the adoption and use of the designation process for the high-cost program is in the public interest because it will: (1) Reflect the flexibility that the Commission has used to adjust, as appropriate, the definition of Tribal lands in the universal service context; and (2) enable us to maximize bidding by all eligible bidders to serve Tribal lands in a 5G Fund auction and any future universal service auctions by grouping together existing Tribal lands and associated off-reservation lands, thereby making those areas more attractive for bidders and facilitating coverage to Tribal lands, as well as promoting competitive bidding for funding of such coverage.

42. We designate three types of off-reservation lands as Tribal lands for purposes of the high-cost program. First, we designate as Tribal lands any federally recognized off-reservation trust lands, Tribal designated statistical areas (TDSAs), or joint use areas from the Census Bureau's American Indian, Alaska Native, and Native Hawaiian boundaries. In effect, we will thus include as Tribal lands all areas from the U.S. Census Bureau's American Indian, Alaska Native, Native Hawaiian dataset that are classified as federally recognized, regardless of the area's census code, classification, or component type in the data. Because many Tribal citizens live and work in, or travel to such off-reservation trust lands, TDSAs, or joint use areas, or are otherwise areas which are near federally-recognized reservations that we unambiguously consider Tribal lands, we conclude that the “Tribal character of” such off-reservation lands is clear. Moreover, in the context of the high-cost program, such areas face many of the same barriers to service as faced by on-reservation land—

e.g.,

low

population density, high levels of poverty, lack of infrastructure, and historical lack of service. We find that including off-reservation areas in our definition of Tribal lands will help ensure we close the digital divide by facilitating carriers availing themselves of Tribal support mechanisms in our high-cost programs to serve more expansive areas with many of the same characteristics. We acknowledge that Commission staff previously concluded that certain TDSAs did not qualify as “Tribal lands” under the section 54.5 definition for purposes of the Tribal Mobility Fund Phase I auction. For the reasons previously stated, however, we now consider all TDSAs as Tribal lands for the 5G Fund and other high-cost program mechanisms. Second, we designate as Tribal lands those areas within the study area boundaries of the Eastern Navajo Agency and Sacred Wind Communications in New Mexico to allow so-called “checkerboard” Tribal and non-Tribal land areas in this section of New Mexico to be aggregated as Tribal lands for purposes of the high-cost program, including the 5G Fund, consistent with past Commission waivers. Under this approach, all Tribal land with the same four-digit census code within the minimum geographic area for bidding will be grouped together to allow bidders to bid on Tribal areas grouped by Tribal entity. For Tribal land that is not part of the Census Bureau's federally recognized American Indian, Alaska Native, and Native Hawaiian boundaries, we will assign such land the census code for the appropriate Tribal entity. Because there is no individual Alaska Native village associated with areas in Alaska that are not part of the American Indian, Alaska Native, and Native Hawaiian boundary data, we will identify these areas with the appropriate Alaska Native Regional Corporation identifier. Specifically, we will identify as part of the Navajo Nation the portions of the study area boundaries of the Eastern Navajo Agency and Sacred Wind Communications in New Mexico that fall outside of any Tribal boundary from the Census Bureau's data. Lastly, we designate as Tribal lands any areas within the geographic boundaries reflected in the Historical Map of Oklahoma (1870-1890), including the Cherokee Outlet, consistent with the Commission's interpretation of the “former reservations in Oklahoma” in section 54.400(e). We note the Supreme Court's recent decision in

McGirt

v.

Oklahoma,

140 S. Ct. 2452 (2020), holding that land reserved for the Creek Nation since the 19th century remains “Indian country” for purposes of the Major Crimes Act and recognizing approximately half of the state of Oklahoma as Native American reservation land, but further note that this decision does not impact the approach to defining and identifying Tribal lands for purposes of the high-cost program we adopt here because the lands at issue in that decision were already considered to be Tribal lands under our proposal.

43. Commenters generally support our proposals concerning identification of Tribal lands. Smith Bagley supports the definitional change to the Eastern Navajo Agency to capture so-called “checkerboard” areas consisting of multiple land classifications, so that residents have access to the 5G Fund, and all future universal service programs, consistent with past Commission waivers. It submits that it is the correct course for the Commission to identify as part of the Navajo Nation the portions of the study area boundaries of the Eastern Navajo Agency and Sacred Wind Communications in New Mexico that fall outside of any Tribal boundary from the Census Bureau's data, and submits that solidifying the Eastern Navajo Agency's status as Tribal land will save Commission resources, bring certainty to carriers serving these areas, and generally serve the public interest.

44. The Cherokee Nation states that it interprets the Commission's proposal to mean that the Cherokee Nation's former reservation lands, the Cherokee Outlet, will be assigned to the Cherokee Nation because the Cherokee Nation is the only tribe to have treaty rights to the Cherokee Outlet, and that any “former reservation lands” of the Iowa, Kickapoo, and Pawnee will be assigned to them respectively, but asks for clarity regarding which particular “former reservation lands” will be assigned to each of the four Tribal entities. RWA supports the Cherokee Nation's request. We clarify that the area not currently designated as Tribal in the U.S. Census Bureau's American Indian, Alaska Native, and Native Hawaiian data but identified as the Cherokee Outlet on the Oklahoma Historical Map (1870-1890) will be considered Tribal under the definition we adopt. Similarly, areas not currently designated as Tribal in the Census Bureau data but identified as Iowa, Kickapoo, or Pawnee based upon the “former reservations in Oklahoma” identified on the Oklahoma Historical Map (1870-1890) will be considered Tribal.

45. The Council of Athabascan Tribal Governments and the Mount Sanford Tribal Consortium each state that the Commission's proposal to include Alaska in the definition of “Tribal lands” but exclude Alaska from the 5G Fund is inconsistent and will create confusion unless the Commission either deletes the reference to Alaska, or notes in the definition that areas in Alaska are not eligible for 5G Fund support. We note that the existing definition of “Tribal lands” in section 54.5 of the Commission's rules defines that term for purposes of high-cost support and thus applies to all high-cost support programs. The Commission did not propose in the

5G Fund NPRM

a new definition of “Tribal lands” that is unique to the 5G Fund for Rural America. The amendments to section 54.5 proposed in the

5G Fund NPRM

—which we adopt here—are not specific to the 5G Fund and will apply to all high-cost support programs going forward, including the new 5G Fund, and for this reason, we do not qualify the reference to Alaska in the definition of “Tribal lands.” Instead, consistent with our policy of not providing high-cost support funding to more than one mobile competitive ETC in a geographic area, we proposed in the

5G Fund NPRM

to exclude areas in Alaska, for which high-cost support is already being provided via the mobile portion of the Alaska Plan, from the areas eligible for 5G Fund support. In formally adopting our proposal to exclude areas in Alaska from eligibility for 5G Fund support today, we make clear that such areas are not eligible for 5G Fund support.

4. Term of Support

46. We adopt a 10-year support term for each phase of the 5G Fund, with monthly disbursements to winning bidders. As we recently explained in adopting a 10-year support term for the Rural Digital Opportunity Fund in the

Rural Digital Opportunity Fund Report and Order,

85 FR 13773, Mar. 10, 2020, a support term of 10 years encourages long-term investment and contributed to the robust participation in the successful Connect America Fund Phase II auction. We conclude that the same incentives apply here.

47. Commenters largely agree that a 10-year support term will provide the certainty and stability needed to encourage deployment of 5G service in rural areas while allowing providers to recover the cost of deploying their networks over time. We decline to shorten the term of support to five years as one commenter suggests, because we conclude that a five-year support term is too short to encourage long-term investment. For similar reasons, we also reject the suggestion that we should

accelerate the disbursement of funds by increasing support awarded during the first year, because our decision to disburse support on a monthly basis best ensures our ability to safeguard universal service funds in the event that service providers do not comply with our performance requirements and public interest obligations, and provides predictability for the Fund's contributions mechanism. Moreover, monthly disbursements provide 5G support recipients with reliable and predictable payments that conform to a variety of business cycles.

5. A Multi-Round, Descending Clock Auction

48. We adopt our proposal to rely on the Commission's existing Part 1, Subpart AA competitive bidding process rules for universal service support for the 5G Fund, with specific detailed clock auction bidding and bid processing procedures to be developed through our ordinary pre-auction notice and comment process. For Phase I and Phase II of the 5G Fund, we will use a multi-round, descending clock auction to identify the areas that will receive support, the carriers that will receive support in those areas, and the amount of support that each winning bidder will be eligible to receive. This descending clock auction will consist of sequential bidding rounds according to an announced schedule. Using multi-round auctions will enable bidders to adjust their bidding strategies over the course of the bidding so as to create viable aggregations of geographic areas in which to construct networks. The Commission has found that this approach to developing competitive bidding procedures—first defining important elements of the basic structure while later considering the detailed procedures for implementation—gives it necessary flexibility for integrating its auction objectives and high-level decisions into a workable and consistent auction process. Most commenters support our proposal. CCA, however, cautions against the use of reverse auctions because they can “drive support to lowest cost options,” specifically citing the use of equipment that may be subject to security concerns. We do not find this argument compelling. Firms generally face an incentive to minimize costs not limited to reverse auction bidders. Moreover, the Commission generally ensures equipment safety and security standards, and those concerns are not limited to competitive bidding in a reverse clock auction.

49. For both the Phase I and Phase II auctions, we adopt our proposal to accept bids and identify winning bids using a support price per adjusted square kilometer. Each eligible area will have an associated number of square kilometers which will be adjusted by an adjustment factor, described below. We will determine support amounts for an area by multiplying an area's associated adjusted square kilometers by the relevant price per square kilometer. For example, an area with 100 square kilometers and an adjustment factor of 1.2 would have 100 × 1.2 or 120 adjusted square kilometers. This approach will ensure that carriers bidding to serve the hardest-to-serve parts of the country can compete efficiently and fairly in the auction. Commenters did not oppose these specific proposals.

50. During the pre-auction processes for Phase I and Phase II, as is the Commission's normal practice, we will seek comment on and adopt an opening price per adjusted square kilometer that is high enough that even carriers requiring a very high level of support will be able to compete in the auction. The opening price multiplied by the number of adjusted square kilometers in the area will represent the highest support amount that a winning bidder could receive for the area in the auction. The same opening price and subsequent clock prices, in dollars per adjusted square kilometer, will apply to all the eligible areas in the auction. The clock price will be decremented in subsequent rounds of the auction, implying lower support amounts for each area. Since the opening price is intended to serve as a starting point for bidding and not an estimate of final prices, we anticipate that the opening price that we propose will be based on rough estimates of the cost of providing service in hard-to serve areas, taking into account any adjustments that are adopted.

6. Minimum Geographic Area for Bidding

51. We conclude that the minimum geographic area for bidding—

i.e.,

the geographic area by which areas eligible for 5G Fund support will be grouped for bidding—in a 5G Fund auction will be no larger than a census tract and no smaller than a census block group, as designated by the U.S. Census Bureau. Our goal in adopting a minimum geographic area for bidding is to ensure that a wide variety of interested bidders, including small entities, have the flexibility to design a network that matches their business model and technical capabilities and that allows service providers to achieve their performance benchmarks and public interest obligations efficiently. Thus, as the Commission did in the CAF Phase II and Rural Digital Opportunity Fund proceedings, we will determine the exact geographic area for grouping eligible areas during the pre-auction process when we finalize the auction design and have better data for determining eligible areas. Commenters are split on whether the minimum geographic area for bidding in a 5G Fund auction should be smaller than a census tract, and none support larger ones. In considering whether to use a minimum geographic area smaller than a census tract, we are mindful of the concerns of commenters that the number of square kilometers in a census tract may not correspond well with the low population density of that large a geographic area and that it may be difficult for carriers meet the 5G Fund performance requirements.

52. We also conclude that the minimum geographic area for bidding for a 5G Fund auction will be larger than individual census blocks, which are smaller than census tracts and census block groups. Although at least one commenter supports using individual census blocks, as we recently concluded in the context of the CAF Phase II and Rural Digital Opportunity Fund auctions, doing so would significantly increase the complexity of the bidding process both for bidders and the bidding system and minimize the potential for broad coverage by winning bidders. Furthermore, using census blocks as the minimum geographic area could create more challenges for providers in putting together a bidding strategy that aligns with their intended network construction or expansion.

53. In order to provide interested parties greater certainty, and insofar as no commenter objected to it, we also adopt our proposal to remove from a 5G Fund auction any geographic area that has

de minimis

eligible areas, which we define as an area of one square kilometer or less within the geographic area that we ultimately adopt. We believe there would be little or no demand for these

de minimis

areas, the administrative burdens would outweigh any potential benefits, and that the amount of the winning bid associated with such areas would be so small in terms of monthly disbursements that the cost to distribute it would outweigh its utility in benefitting a support recipient.

54. Moreover, because we decide to allocate funds reserved for support to Tribal lands from a separate Tribal lands budget, we also adopt our proposal to identify the eligible areas that coincide with an area of a specific Tribal entity by overlaying the boundaries of Tribal lands for each federally recognized

Tribal entity on the eligible areas within each minimum geographic area that we adopt. We note that while commenters generally did not address this proposal, two commenters—Smith Bagley and the Cherokee Nation—are generally supportive of our proposals to identify and group Tribal areas with the appropriate entity for purposes of the high-cost program and 5G Fund.

7. Adjustment Factor

55. We adopt our proposal to incorporate an adjustment factor into the 5G Fund auction that will assign a weight to each geographic area and will apply that adjustment factor to bidding for support amounts, and to apply that adjustment factor to the methodology for disaggregating legacy high-cost support. This weighting will reflect the relative cost of serving areas with differing terrain characteristics, as well as the potential business case for each area, with less profitable areas receiving greater weight and therefore greater support. The descending clock auction format we will use is one in which a uniform support rate is offered across all eligible areas, and carriers indicate which specific areas they would serve at that rate. If the sum of all payments that would be made at a specific rate given carriers' expressed willingness to serve exceeds the 5G Fund budget, then the rate is reduced and carriers express their willingness to serve at the lower rate. This process continues until the payment is equal to the 5G Fund budget. Under this process, carriers will be willing to serve fewer areas as the rate falls, but if the same rate is offered for all remaining areas, more support than is needed will flow to the less costly-to-serve and more profitable remaining areas. The adjustment factor will, however, for any given support rate, allocate a multiple of the support rate to more costly and less profitable areas, thereby making them more attractive to serve and increasing the support to such areas.

56. Using an adjustment factor to help distribute 5G Fund support to, and disaggregate legacy support in, a range of areas across the country that are geographically and economically diverse serves the public interest. As stated in the

5G Fund NPRM,

however, we do not expect an adjustment factor to capture the full differences between the costs and benefits of providing service to different types of geographic areas. In addition, we may cap the adjustment factor if we believe that it would be helpful to do so in balancing our goals of providing broad and equitable support for 5G.

57. As directed in the

5G Fund Order,

85 FR 34525, Jun. 5, 2020, the Office and Bureau proposed and sought comment in the

5G Fund Adjustment Factor Public Notice,

DA 20-594, rel. Jun. 5, 2020, on specific adjustment factor values and the underlying methodologies used to develop them. Consistent with our decision to adopt the use of an adjustment factor, the adjustment factor values that are adopted by the Office and Bureau will be used in both bidding in the 5G Fund auction and for the disaggregation of legacy support.

58. Commenters broadly support our proposal to adopt an adjustment factor, although they differ in how to calculate and apply it. T-Mobile argues that an adjustment factor will “encourage investment in areas that are more costly or less profitable to serve.” The Massachusetts Department of Telecommunications and Cable also supports using an adjustment factor to score auction bids, but argues that the Commission should “account for all relevant differences in 5G deployment and operating costs between locations, not just differences in terrain.” AST&Science strongly supports incorporating an adjustment factor into the 5G Fund auction design “in order to increase support to areas that are more costly and less profitable to serve.” RWA believes that adjustment factors are “an effective way of targeting support to hard-to-serve rural areas” in an auction.

59. Our application of an adjustment factor in bidding in the 5G Fund auction and for the disaggregation of legacy support recognizes the variability of costs of deploying service, especially mobile service, across the country, and in that way advances our core universal service goal of ensuring access to reasonably comparable services in all areas of the country. We accordingly decline to adopt a disaggregation methodology allocating universal service support uniformly throughout a provider's subsidized service area; doing so would ignore the significant additional costs that wireless providers incur to deploy service in more difficult terrain and economic conditions. Instead, consistent with the direction in the

5G Fund Order,

the Office and Bureau will apply a disaggregation methodology that uses an adjustment factor as a proxy for determining areas that are relatively more costly for potential bidders and current legacy support recipients.

60. We adopt our proposal to use an adjustment factor that accounts for both the relative costs and business cases of deploying a 5G network given the differing terrain and economic conditions throughout the United States. The adopted adjustment factor will ensure that bids to serve areas that tend to be less profitable to serve, such as more economically disadvantaged areas and areas with more challenging terrain, are given greater weight in the auction and are not disadvantaged. We defer the final determination of the precise manner in which the adjustment factor will be incorporated into the auction mechanism to the pre-auction process.

61. We disagree with Verizon that applying such an adjustment factor to bidding is untested. In the CAF Phase II auction, the Commission's cost model adjusted reserve prices based on variations in the deployment costs of fixed networks due to factors like geography and regional costs. This cost-based adjustment to the bid amount is effectively the same as we adopt here—albeit designed here for application to mobile networks—and we will build on our experience in that auction. We also disagree with RWA that the adjustment factor should not be applied to the disaggregation of legacy support. Using an adjustment factor is appropriate because it will alleviate potential concerns over a carrier losing a disproportionate amount of its legacy support resulting from a disaggregation methodology in which more costly areas would be treated the same as less costly areas with respect to subsidies received. For example, a hypothetical carrier serving one mountainous census tract and one flat census tract of equal size in its subsidized service area might require 75% of its support to serve the mountainous tract and 25% to serve the flat tract. Were an unsubsidized carrier to enter the flat tract, which may be more likely given the relatively lower costs in the flat tract, if we did not apply the adjustment factor in calculating disaggregated support, the carrier would lose 50% of its funding and would be unable to continue serving the mountainous tract. However, applying an adjustment factor of three to the mountainous area would result in the carrier retaining 75% of its original support amount and allow it to continue serving the mountainous tract.

62. We decline to adopt the Massachusetts Department of Telecommunications and Cable's proposal to explicitly account for all 5G capital and ongoing cost differences in the calculation of the adjustment factor. We first note that two of the models presented in the

5G Fund Adjustment Factor Public Notice,

the Entry and Auction Bidding models, do reflect differences across geographic areas in

capital and ongoing costs, including the differences in labor rates, utility rates and other factors cited by the Massachusetts Department of Telecommunications and Cable. These models estimate differences in total profitability from deployment, and as such, capture differences in capital and ongoing costs as well as revenues from subscriber demand. Also, as we observed in the

5G Fund NPRM,

we do not intend for the adjustment factor to be an exhaustive accounting of all cost and demand differences across every area. Rather, it is to allow bidders in less profitable to serve areas to effectively compete in the auction while at the same time allowing the auction, rather than a cost model, to determine the most economically efficient allocation of winning bidders and funding levels across geographic areas.

D. Public Interest Obligations and 5G Service Performance Requirements for Legacy High-Cost Support and 5G Fund Auction Support Recipients

1. 5G Public Interest Obligations for Legacy High Cost Support Recipients

63. To bring accountability and ensure deployment of 5G technology in each carrier's subsidized service area, we establish broadband public interest obligations that will require competitive ETCs receiving legacy high-cost support for mobile wireless service to provide mobile, terrestrial voice and data services that comply, at a minimum, with 5G-NR technology as defined by 3GPP Release 15 (or any successor release that the Office of Economics and Analytics and the Wireline Competition Bureau may require after notice and comment). Specifically, we adopt our proposal to require that legacy support recipients use an increasing percentage of their support toward 5G service. We will also require competitive ETCs receiving legacy high-cost support to meet specified coverage requirements until such legacy support begins to phase down or otherwise ceases.

64. We note that the Commission has already begun phasing down support for those competitive ETCs that receive legacy high-cost support to provide service to fixed locations, and will similarly exempt entirely from new obligations and requirements competitive ETCs receiving legacy high-cost support for mobile wireless service in Alaska, Puerto Rico, and the U.S. Virgin Islands, areas for which the Commission adopted alternative support mechanisms and that are not otherwise eligible for 5G Fund support. We further note that competitive ETCs may voluntarily relinquish receipt of legacy high-cost support for a subsidized service area, and upon so doing, will no longer be required to meet these public interest obligations. However, in cases where a carrier voluntarily relinquishes legacy support at some point after effective date of these rules, the Commission may seek up to full recovery of all legacy support the carrier received after the effective date of these rules which was not spent toward the deployment, operation, and/or maintenance of 5G services consistent with the non-compliance framework we adopt herein.

65. No commenter disputes our reliance on the Commission's determination in the

USF/ICC Transformation Order

that any pause in the phase down of legacy high-cost support should be accompanied by additional public interest obligations and performance requirements for these support recipients. Rural Americans deserve timely deployment of service by legacy recipients of high-cost support that is comparable to what is being offered in urban areas, and our stewardship of the Universal Service Fund demands that we specify and clarify the obligations of legacy support recipients.

66. Because we recognize that the amount of legacy high-cost support received by each competitive ETC varies considerably and bears no direct relation to the size of its subsidized service area or to the expected cost of deploying 5G service, we do not adopt our proposal to require recipients to meet uniform 5G service deployment milestone coverage requirements largely mirroring those we adopt herein for 5G Fund support recipients. Instead, we adopt a general requirement for competitive ETCs receiving legacy high-cost support to meet deployment coverage requirements, and direct the Office and Bureau to develop and adopt, after notice and comment, specific 5G broadband service deployment coverage requirements and service deployment milestone deadlines for each legacy support recipient that take into consideration the amount of legacy support the carrier receives. In so doing, we direct the Office and Bureau to analyze the costs of 5G deployment in subsidized service areas and to evaluate the adequacy of legacy support to meet the particular deployment coverage requirements ultimately adopted.

67. Some parties raise objections to or otherwise question our directing the Office and Bureau to develop 5G deployment coverage requirements for legacy support recipients. We disagree and believe that these workstreams can proceed in parallel. Without more rigorous and objective 5G deployment obligations, we are concerned that legacy support may not ensure the timely deployment of 5G service to rural areas, that we will lack adequate information by which to measure the effectiveness of this support, and that legacy recipients may not be properly incentivized to participate in a 5G Fund auction. We therefore disagree with these concerns and anticipate that the Office and Bureau will adopt appropriate carrier-specific coverage deployment requirements expeditiously.

68. We note as a threshold matter that each ETC receiving high-cost support has an existing public interest obligation to offer broadband service throughout its subsidized service area. The details of the technical characteristics and deployment requirements of this broadband public interest obligation differ for each of the specific mechanisms under which carriers receive high-cost support, but the obligation to offer broadband service applies broadly, including to competitive ETCs that continue to receive legacy high-cost support to provide mobile services. Our decision today thus helps to complete the reform of the high-cost program begun in 2011 by effectuating this broadband service public interest obligation for legacy high-cost support recipients, whose broadband-specific public interest obligations for mobile services were not previously detailed. In so doing, we also effectuate the Commission's expectation that any pause in the phase down would include additional mobile broadband public interest obligations and performance requirements for the continued receipt of support. For the reasons stated in the

5G Fund NPRM,

we adopt our proposal to require legacy high-cost support recipients to meet additional public interest obligations and performance requirements and will require recipients of legacy high-cost support to meet the specific public interest obligations and performance requirements detailed herein.

69. Each competitive ETC receiving legacy high-cost support for mobile wireless services must now use an increasing percentage of its legacy support toward the deployment, maintenance, and operation of voice and broadband networks that support 5G meeting the performance requirements we adopt today within its subsidized service areas. Specifically, legacy support recipients must use at least one-third of the legacy support they receive in 2021 and at least two-thirds of the legacy support they receive in 2022 for these purposes. Some carriers raise a concern that budgets and

deployment plans for 2021 are largely complete, which could make it difficult for some legacy support recipients to achieve the 2021 requirement. As such, we will also afford a carrier the flexibility to use less than one-third of its legacy support in 2021 and make up any shortfall in 2021 by proportionally increasing the requirement in 2022 (above the two-thirds of its support the carrier is required to spend on 5G in that year). For example, a legacy high-cost support recipient that receives $9 million per year in legacy support could meet this requirement by spending on 5G: $3 million in 2021 and $6 million in 2022; $1.5 million in 2021 and $7.5 million in 2022; or even $0 in 2021 and $9 million in 2022. To take advantage of this flexibility, a carrier receiving legacy support must certify to the Bureau by March 31, 2021 (or 30 days after the Commission receives Paperwork Reduction Act approval, whichever is later) as to the amount of 2021 legacy support it will use for the 5G deployment requirements and certify that it will make up any shortfall in 2022. For legacy support received in 2023 and for each subsequent year, the full amount of legacy support a carrier receives in the calendar year must be used for these purposes by the end of the calendar year until its legacy support for an area begins to phase down or otherwise ceases. We note that this requirement is not intended to prohibit a competitive ETC from using a portion of its legacy support on the maintenance or operation of 4G LTE or previous generation services in its subsidized service area as part of a network otherwise capable of providing 5G service meeting the performance requirements, for example, in order to continue to support older generation consumer handsets. In line with the geographic flexibility we adopt herein, the percentage of legacy support that a competitive ETC must use will be calculated against the total amount of legacy high-cost support that the carrier receives for all of the subsidized service areas for which it (or any affiliated competitive ETCs) receives support at 60% of the frozen high-cost support level, calculated pursuant to section 54.307(e)(2)(iii).

70. We conclude that adopting uniform coverage requirements for 5G broadband service deployment similar to those we adopt for 5G Fund winning bidders without first estimating the sufficiency of support amounts to meet a coverage requirement could give some carriers a windfall for little deployment while imposing impossible expectations on others. On the other hand, requiring that an increasing percentage of legacy support be used to deploy 5G service does not present similar concerns about the sufficiency of support. For example, a competitive ETC that receives $10 million per year to provide service across a state would thus, presumably, be able to deploy 5G broadband service on a faster timeline and covering more area (

e.g.,

perhaps to 85% of its subsidized service area within four years) than would a competitive ETC that receives only $1 million per year to provide service to a similar sized area across the same state. Nevertheless, both legacy support recipients would be able to spend the same proportion of legacy support toward deployment of 5G service in order to meet their broadband public interest obligations. Requiring a gradual shift to spending on 5G service, as we do today, will broadly align with the schedule for 5G deployment in unsubsidized and urban areas, and will help ensure that high-cost areas do not fall behind.

71. Several commenters oppose our proposal to require legacy support recipients to meet uniform 5G coverage requirements as part of the public interest obligations and performance requirements we tentatively concluded we should adopt. AT&T argues that requiring 5G deployment in areas after support has been phased down would “violate[ ] the Commission's obligation [under section 254(b)(5) of the Act] to establish support mechanisms that provide sufficient funding.” We expressly proposed in the

5G Fund NPRM

to exempt from any 5G broadband service deployment public interest obligation areas where the legacy support recipient is subject to two-year phase down of support, both during the two-year phase down period and also after legacy support ceases, a proposal which we adopt herein. In other words, contra AT&T's suggestion, there will be no requirement to deploy 5G broadband service in areas where support is being or has been phased down. The Coalition of Rural Wireless Carriers (CRWC) similarly argues that requiring 5G deployment public interest obligations without evaluating the costs required to deploy service is arbitrary and capricious and would violate the statute. Smith Bagley opposes 5G deployment requirements for legacy support recipients on remote Tribal lands, where, it states, costs are so high and current support levels are insufficient to provide even 4G LTE service in many areas and that “the Commission cannot require carriers to improve facilities and service levels in uneconomic high-cost areas unless it provides support that is explicit and sufficient . . . .” We agree with these commenters that requiring legacy support recipients to meet uniform coverage requirements for 5G broadband service buildout without further analysis of the amount of legacy support each competitive ETC receives is premature. We have therefore directed the Office and Bureau to evaluate the adequacy of legacy support to meet particular deployment coverage requirements and to adopt specific 5G broadband service deployment coverage requirements and service deployment milestone deadlines for each legacy support recipient that take into consideration the amount of legacy support the carrier receives after notice and comment.

72. Three commenters support alternative frameworks that would require the deployment of 5G broadband service over a 10-year period in return for the same or an increased amount of legacy support carriers receive. Both RWA and NTCA suggest requiring modified 5G broadband service deployment obligations and performance requirements of legacy support recipients, but only as part of their respective “5G Small Carrier Fund” proposals. These proposals, which are largely modeled on the Commission's Alaska Plan, would offer legacy support recipients an increase in their support amounts over 10 years to deploy 5G and which we declined to adopt above. Smith Bagley proposes a “Remote Tribal Areas Plan” that would similarly offer the same amount of support, or a modified amount determined by the Commission, over 10 years for legacy support recipients that serve remote Tribal lands to deploy 5G in such areas. While we recognize the challenges of small carriers and those that provide service to Tribal areas, as we explain above in declining to adopt the alternate proposals advanced by RWA, NTCA, and Smith Bagley, the Commission's experience awarding support via competitive bidding has shown it to be an effective use of ratepayer funds and none of these commenters has convinced us that departing from that approach is warranted. We further conclude that the broadband public interest obligations and performance requirements we adopt today will help bring 5G service to existing high-cost areas while incentivizing current legacy high-cost support recipients, including small carriers and those that serve Tribal lands, to participate in the 5G Fund Phase I auction, ultimately ensuring that

the largest number of rural areas receive support.

73. Finally, recognizing that there may be particular circumstances where the amount of legacy support received is so low or the costs of any steps toward the deployment of 5G service so high as to frustrate any 5G broadband public interest obligation, we direct the Office and Bureaus to consider adopting, after notice and comment, a

de minimis

exception to any 5G deployment public interest obligations that the Office and Bureau may adopt as part of the proceeding to develop carrier-specific coverage requirements. In so doing, we direct the Office and Bureau to consider in setting any

de minimis

exceptions the amount of legacy support a carrier receives in relation to the administrative costs of establishing and verifying 5G deployment.

2. 5G Public Interest Obligations for 5G Fund Auction Support Recipients

74. We adopt our proposal to establish public interest obligations for 5G Fund support recipients to provide terrestrial mobile voice and data services that comply, at a minimum, with 5G-NR technology defined as 3GPP Release 15 (or any successor release that the Office and Bureau may require 5G Fund support recipients to comply with after appropriate notice and comment) and to meet measured performance requirements as a condition of receiving support. We also adopt our proposal to require 5G Fund support recipients to meet baseline performance requirements for minimum data speed, maximum data latency, and a minimum monthly data allowance.

75. Commenters generally support requiring specific public interest obligations and performance requirements for 5G Fund support recipients, and most support requiring the deployment of 5G service. CCA, however, suggests allowing 5G Fund support recipients to deploy 4G LTE-Advanced and provide a plan to transition to 5G-NR within a set period. In its reply comments, RWA disagrees with CCA's suggestion that 5G Fund support recipients be allowed to deploy 4G LTE-Advanced and suggests that the 5G buildout requirements require 5G-NR 3GPP Release 15 or later.

76. We agree with RWA and find it imperative that consumers in rural America receive service meeting the minimum industry standard to be considered 5G in order to ensure the 5G Fund is consistent with our goal to bridge the digital divide. We therefore adopt the requirement that 5G service deployed to meet public interest obligations and performance requirements for 5G Fund support recipients comply with the 5G-NR standard defined as 3GPP Release 15 (or any successor release with which the Office and Bureau may require 5G Fund support recipients to comply after notice and comment). In so doing, we also decline to adopt the suggestion of the 5G Fund Supporters who argue that the Commission should add an extension of the Cable Procurement Rule to the 5G Fund public interest obligations to ensure that minority- and women-owned businesses apply for the many procurement opportunities that will owe their creation to the 5G Fund. Our experience using reverse auctions to distribute support successfully in the Mobility Fund Phase I and CAF Phase II auctions supports our decision that competitive bidding without specific preferences provides the most efficient and effective mechanism to award universal service support.

77.

5G Service Milestones.

To ensure that 5G Fund support recipients meet their public interest obligation to provide 5G service in areas where they receive support, we adopt interim and final service deployment milestones to monitor progress in timely meeting the 5G Fund performance requirements. Specifically, we adopt our proposal for interim service deployment milestones requiring a 5G Fund support recipient to offer 5G service meeting established performance requirements to at least 40% of the total square kilometers associated with the eligible areas for which it is authorized to receive 5G Fund support in a state by the end of the third full calendar year following authorization of support, to at least 60% of the total square kilometers by the end of the fourth full calendar year, and to at least 80% of the total square kilometers by the end of the fifth full calendar year.

78. We also adopt our proposed final service deployment milestone that requires a 5G Fund support recipient to offer 5G service that meets the established 5G Fund performance requirements to at least 85% of the total square kilometers associated with the eligible areas for which it is authorized to receive 5G Fund support in a state by the end of the sixth full calendar year following authorization of support. Additionally, we adopt our proposal to require a 5G Fund support recipient to demonstrate by the end of the sixth full calendar year following authorization of support that it provides service that meets the established 5G performance requirements to least 75% of the total square kilometers within each of its individual biddable areas.

79. NTCA generally supports our proposed interim and final service deployment milestones, and the New York Public Service Commission similarly supports our proposals. We decline to adopt an alternative milestone schedule for deployment of 5G service suggested by RWA that would require recipients to cover 40% of the areas for which 5G Fund support is authorized by the end of year four, 60% by the end of year six, and 85% by the end of year 10. While RWA claims that deployment of a 5G network is “more complex and time consuming than building out prior generation networks” and will be difficult for legacy high-cost support recipients to do as part of its Phase 0 proposal, RWA provides no persuasive reason why 5G Fund support recipients should follow this delayed schedule. We are unconvinced that 5G Fund support recipients, which are able to factor in the cost and complexity of meeting service deployment milestones when placing bids in an auction, will find it overly burdensome to meet the deployment milestones we adopt.

80. We decline to adopt the proposal of the California Public Utilities Commission to adopt a higher service deployment milestone coverage requirement—90% by the end of year six and 100% by the end of year seven. There may be isolated areas that are particularly challenging to serve even in terrain that is otherwise not difficult to serve, and adopting a 100% coverage requirement could drastically increase costs in a 5G Fund auction if bidders reasonably conclude that certain areas they would otherwise be interested in serving are cost prohibitive due to an especially challenging terrain feature like a ravine or mountaintop. Such a requirement would thus potentially distort the 5G Fund auction with little gain. At the same time, we disagree with Verizon's suggestion to reduce the required coverage percentage within each biddable unit with particularly challenging areas, based on an alternate deployment requirement focusing on road miles and population. We believe that deviating from our area-coverage approach in the 5G Fund would undercut our focus on ensuring widespread availability of 5G services, including in sparsely populated areas like agricultural lands. Moreover, while we acknowledge that achieving 5G deployment covering 85% required by the final service deployment milestone may be difficult to achieve in particularly challenging terrain, bidders in a 5G Fund auction will be able to factor in the costs of deployment in

such environments when placing bids in the auction.

81. Lastly, we adopt the interim and final service milestones for 5G Fund support recipients as proposed in the

5G Fund NPRM

because we conclude it is imperative that carriers receiving 5G Fund support make significant progress toward providing 5G service early in their support term, and then continue to make progress toward overall coverage goals throughout the remainder of the term. We note that the service milestones we adopt for the 5G Fund are similar to those adopted for the Rural Digital Opportunity Fund and CAF Phase II, as well as in the Uniendo a Puerto Rico Fund and Connect USVI Fund proceeding. Adopting a consistent approach here ensures that we act as responsible stewards of universal service funds. The requirement that 5G Fund support recipients cover at least 75% of the total square kilometers within each biddable unit also ensures that support recipients do not cherry-pick the easiest-to-serve areas and leave more difficult regions cut off from service and from other potential service providers.

3. 5G Service Performance Requirements

82. We adopt our proposal to require recipients of legacy high-cost support and 5G Fund support to meet baseline performance requirements for minimum data speed, maximum latency, and minimum monthly data allowance. In the

5G Fund NPRM,

we proposed minimum baseline performance requirements for legacy and 5G Fund support recipients to deploy 5G service speeds of at least 35/3 Mbps, sought comment on whether the required data speed should be a median, mean, or another percentile of probability, proposed 100 milliseconds or lower round-trip latency, and proposed a minimum monthly data allowance that would correspond to the average U.S. subscriber data usage. Consistent with these proposals, we will require that support recipients deploy 5G-NR service with median speeds of at least 35/3 Mbps, minimum cell edge speeds of at least

7/1

Mbps, and have round-trip latency of 100 milliseconds or less. We do not adopt additional standardized propagation modeling requirements as proposed. As discussed further in Section III.E.1 and III.G.1, we will instead defer to the propagation modeling standards adopted for reporting of 5G mobile broadband coverage in the Digital Opportunity Data Collection. Additionally, we will require that support recipients offer at least one service plan in the areas for which legacy support is disbursed or 5G Fund support is authorized that includes a data allowance that is equivalent to the average United States subscriber data usage.

83. We disagree with CCA's suggestion to fund both 5G deployments and 4G LTE-Advanced deployments using equipment that can subsequently be upgraded to 5G. As RWA and CRWC demonstrate, many competitive ETCs receiving legacy high-cost support have already deployed 4G LTE equipment in their network core using legacy support, which should significantly reduce the burden of using future legacy support to upgrade these networks to 5G service meeting at least the 5G-NR standard we adopt. Consistent with our overall approach in this proceeding, we believe support is best directed to modern 5G deployments rather than further deployments of 4G LTE technology. Moreover, we agree with RWA that “[o]nly real 5G will allow the provision of flexible broadband services, increased speed, reduced latency, and reduced energy consumption, [among] other 5G capabilities that 4G (or `5G Lite') simply cannot provide.”

84. RWA is the only commenter to directly address adopting these performance requirements specifically for legacy high-cost support recipients, which it generally supports albeit with a longer deployment buildout timeframe and as part of its “Phase 0” proposal. RWA and AT&T otherwise support our proposed data speeds of 35/3 Mbps, and we agree with these commenters that a median speed of 35/3 Mbps, combined with the requirement that supported networks meet 3GPP's 5G-NR standard, recognizes that network speeds will vary across service areas and will allow a variety of 5G applications in rural areas. We disagree with CCA's claims that data speeds of 35/3 Mbps are arbitrary and will not be attainable for rural carriers without substantial cost. The Commission has previously required minimum speeds of 35/3 Mbps for 5G service in the high-cost program and to date most eligible carriers have accepted that funding and associated obligation to deploy at those speeds. While it is true that 5G service is not defined by a particular speed, we conclude that setting both minimum cell edge and median target speeds based upon what we believe to be achievable with a minimum amount of spectrum will help align the services funded with 5G Fund support with the performance of 5G service in unsubsidized areas. We note that a review of the Commission's public Universal Licensing System indicates that the licenses held by competitive ETCs receiving legacy high-cost support provide the minimum amount of bandwidth that we find to be necessary to support 5G services (at least 10 megahertz x 10 megahertz using frequency division duplex (FDD) or 20 megahertz using time division duplex (TDD)) meeting these speeds in more than 95% of subsidized service areas. We consequently believe even small and mid-size rural providers will be reasonably capable of meeting a 35/3 Mbps standard with available spectrum.

85. We also disagree with suggestions from Next Century Cities, Juniper Networks, and Verizon that we should adopt higher speeds for the 5G Fund, ranging from 50/5 Mbps to 1 Gbps. While many 5G networks will be capable of higher speeds, the 5G Fund is intended to support networks in even the most sparsely populated and hardest-to-serve parts of the country. Setting network speeds too high risks raising the costs of deploying in those areas so high that service providers are unwilling to bid. As we have noted, we believe 35/3 Mbps will be achievable by the vast majority of potential 5G Fund bidders and legacy support recipients, and is consistent with other 5G universal support requirements in insular areas. We likewise disagree with CRWC's suggestion to use signal strength requirements and a link budget as the manner of measuring compliance with performance requirements, rather than data speed and latency. We do not believe there is, and CRWC does not offer, a meaningful way to impose a single set of signal strength and link budget parameters that can reliably predict network performance for every network design and configuration.

86. Though AST&Science argues that low-earth orbit satellite service should be able to meet the 100 milliseconds or lower latency standard, other satellite companies seek to allow higher latency, perhaps via a tiered system similar to Rural Digital Opportunity Fund's performance and latency tiers. We agree with RWA that an increase in permitted latency could reduce service quality, however. We also decline to add the complexity of adopting a tiered system to the 5G Fund auctions. We believe that adopting a round-trip latency requirement of 100 milliseconds or better for all areas better achieves our goal of ensuring access to services reasonably comparable to those in urban areas. One of the key benefits of 5G over other mobile technologies is reduced latency.

87. While the New York Public Service Commission generally supported requiring a data allowance that corresponds to the average United

States subscriber data usage, we received no specific comments addressing a data source for the average United States subscriber data usage, on the time during the support term that any increases in the required data allowance should be established, or on whether there should be a cap on what minimum monthly data allowance should be required at future points during the support term. We continue to believe that tying the minimum monthly data allowance to average United States subscriber usage will ensure that rural Americans are not provided second-rate service, and we therefore adopt this standard for the minimum monthly data allowance. We defer to the proceeding in which the Office and Bureau adopt carrier-specific 5G coverage requirements for legacy support recipients and to the pre-auction process for 5G Fund auction support recipients to determine the data source from which we will evaluate the average United States subscriber data usage and the further parameters necessary to implement an evolving minimum monthly data allowance, respectively.

4. Additional Public Interest Obligations

88.

Reasonably Comparable Rates.

Consistent with section 254(b)(3) of the Act, we will require as a public interest obligation for the receipt of mobile high-cost support that all legacy high-cost and 5G Fund support recipients offer 5G service in the areas where they receive support for deploying 5G service at rates that are reasonably comparable to rates they offer in urban areas, as proposed in the

5G Fund NPRM.

In the

USF/ICC Transformation Order,

the Commission concluded that, as a condition of receiving federal high-cost universal service support, all recipients of such support must offer broadband service in their supported area that meets certain basic performance requirements at rates in rural areas that are reasonably comparable to rates offered in urban areas.

89. For both voice and broadband services, the Commission considers rural rates to be “reasonably comparable” to urban rates under section 254(b)(3) if rural rates fall within a reasonable range of urban rates for reasonably comparable voice and broadband services. As an initial matter, we will define “urban” for this purpose consistent with the definition from the latest decennial U.S. Census Bureau data. Currently, the latest decennial data available from the U.S. Census Bureau for this purpose is from 2010. We anticipate that 2020 data will be available in the near future. Consequently, we will update our definition of “urban” when new decennial data becomes available. Consistent with suggestions filed in the Mobility Fund Phase II docket and our decision in that proceeding, we conclude that if a legacy high-cost or 5G Fund support recipient is offering the same rates, terms, and conditions (including usage allowances, if any, for a specified rate) to both urban and rural customers, then it would fulfill the requirement that its rates are reasonably comparable. We also will allow a support recipient to demonstrate it provides reasonably comparable rates if one of its stand-alone voice plans and one service plan offering data are substantially similar to plans offered in urban areas. We note that we may define more precisely the circumstances under which a legacy or 5G Fund support recipient can demonstrate compliance with this certification in later proceedings, and retain our authority to look behind recipients' certifications and take action to address any violations.

90. Where a legacy high-cost or 5G Fund support recipient does not serve urban areas and therefore cannot demonstrate that it is offering reasonably comparable rates based upon its own offerings, we will require the support recipient to identify the carrier and specific rate plans upon which it is basing its compliance certification so that we can verify that its rates are reasonably comparable. We note that allowing for cross-carrier comparison is broadly similar to our decision in the Mobility Fund Phase II Report and Order to require that a support recipient offer at least one service plan that includes a minimum monthly data allowance equivalent to a mid-level plan offered by a nationwide provider. In such a case, we will require that the support recipient submit corroborating evidence of reasonably comparable rates from the web page or other marketing materials of the other mobile carrier that does serve urban areas.

91. The New York Public Service Commission supports the proposed method for a support recipient to demonstrate that it offers reasonably comparable rates if it offers stand-alone voice plans and one service plan with data that is substantially like those offered in urban areas. NTCA also supports this approach, stating that “[a]ll who receive or win funding must . . . commit to offering a terrestrial mobile wireless product that is similar in features and price to the 5G mid-level plan offered in urban areas by large, nationwide providers.” We note that AST&Science supports our proposal to adopt a reasonably comparable rate requirement, but suggests that we include handset costs when determining whether rates are reasonably comparable. We decline to mandate specific prices for handsets because handsets are broadly available from vendors other than service providers, and thus market forces establish handset prices. We received no comments on the proposed method of demonstrating reasonably comparable rates if the support recipient does not serve urban areas by identifying a carrier and specific rate plan upon which the support recipient is basing its compliance certification, and requiring the submission of corroborating evidence of reasonably comparable rates from the web page or other marketing materials of the mobile carrier serving urban areas on which the demonstration is based. We adopt this proposal as a reasonable and not burdensome method of demonstrating compliance with the reasonably comparable rate requirement.

92. Emphasizing the obligation to offer voice and broadband service at reasonably comparable rates further ensures that service made available with universal service funds in rural areas is not beyond the financial reach of rural customers. We note that all ETCs must advertise the availability of their voice services throughout their service areas, and we require support recipients also to advertise the availability of their broadband services within their service area.

93.

Collocation and Voice and Data Roaming.

We adopt our proposal to require competitive ETCs to allow collocation and voice and data roaming as a public interest obligation of the receipt of both legacy high-cost and 5G Fund support, and will require the same general collocation and voice and data roaming obligations that the Commission adopted for Mobility Fund Phase I, with certain minor changes for legacy support recipients. Until a competitive ETC ceases to receive legacy support, we will require the support recipient to allow reasonable collocation by other carriers of services that would meet the technological requirements of the 5G Fund on all cell-site infrastructure that it owns or manages in the subsidized service area for which it receives legacy support. For 5G Fund support recipients, to ensure that a support recipient does not use public funds to achieve unfair competitive advantage, we require that during the 5G Fund support term, a support recipient allow reasonable collocation by other providers of services that meet the technological requirements of the 5G Fund on all

newly-constructed 5G cell-site infrastructure that the support recipient owns or manages in the areas for which it receives support. We note that this public interest obligation for legacy high-cost support recipients differs slightly from what we adopt for 5G Fund support recipients and from the requirements adopted by the Commission in Mobility Fund Phase I and Mobility Fund Phase II. We conclude it is appropriate to apply a broader collocation requirement for legacy support recipients because we anticipate that such recipients will have already built their infrastructure and allowing reasonable collocation on those facilities serves our underlying policy goals of allowing other service providers to benefit from the public universal service funds. During the period of time that a carrier receives either legacy high-cost or 5G Fund support, we will also prohibit each support recipient from entering into facilities access arrangements that restrict any party to the arrangement from allowing others to collocate on the respective cell-site infrastructure.

94. RWA purports to support this collocation proposal, but asserts that collocation should only be required to the extent that the tower can support multiple carriers, and suggests that any reinforcement or upgrade costs would have to be borne by the last provider desiring to collocate on the tower. We disagree with RWA's view regarding reasonable collocation because it conflicts with the underlying policy of ensuring that universal service support is used in a manner that does not allow one provider to gain an unfair competitive advantage over another. As the Commission explained in the context of adopting a similar requirement for Mobility Fund Phase II, the goal of having a public interest obligation to require reasonable collocation is to ensure that “publicly funded investments can be leveraged by other service providers.” We decline to adopt RWA's position regarding collocation because we conclude it would place an undue burden on those service providers seeking to take advantage of the public benefits that can be gained for rural consumers from the 5G Fund, and would run counter to our efforts to close the digital divide. We remind both legacy high-cost and 5G Fund support recipients that they must also comply with the Commission's voice and data roaming requirements in effect as of the effective date of these rules on networks that are built using high-cost support.

E. Additional Mobile Legacy High-Cost Support Requirements

1. Reporting Requirements

95.

Initial Report of Current Service Offerings.

We adopt our proposal to require each competitive ETC receiving legacy high-cost support for mobile wireless service to file an initial report of its current service offerings in each of its subsidized service areas detailing how it is using legacy support. Legacy support recipients must file this report no later than three months after the Commission receives Paperwork Reduction Act approval for this requirement. RWA broadly supported requiring an initial report since “[t]his information will help the Commission ensure that support is actually being used for its intended purpose.” We agree. No other commenters discussed this point. We note that RWA addressed this proposed requirement only at a high-level, as was proposed in the

5G Fund NPRM,

and not the specific certifications and requirements that we adopt herein. Moreover, we disagree with RWA's suggestion that the initial report of current service offerings should be required only after the Commission determines the final areas eligible for support in the 5G Fund Phase I auction, as doing so would unnecessarily delay our efforts to bring accountability to the high-cost program and to gain a more complete understanding of how legacy high-cost support is being used.

96. Consistent with our decision herein to require annual reports from legacy support recipients, we will require initial reports to be filed with USAC via a web portal, and the reports will be made available to the Commission and the relevant state, territory, and Tribal governmental agencies, as applicable. A legacy support recipient must maintain the accuracy and completeness of the information provided its initial report, and any substantial change in the accuracy or completeness of any initial report submitted by a legacy support recipient must be reported within 10 business days after the reportable event occurs. We retain our authority to look behind recipients' initial reports and to take action to address any violations. We additionally direct the Office and Bureau to further specify the process by which legacy high-cost support recipients will be required to file their initial reports.

97. In order to have a complete understanding of current service offerings, we will require in the initial report information about the service each legacy support recipient offers in each subsidized service area where it receives legacy support. Such information will include an indication of the highest level of technology deployed, a target date for when 5G broadband service meeting the performance requirements we adopt today will be deployed within the subsidized service area (for any service area in which 5G has not been deployed), and an estimate of the percentage of area covered by 5G deployment meeting the adopted performance requirements (for any area in which 5G has been deployed). To help us better understand the services offered, we will also require that each recipient provide infrastructure information on the cell sites that the carrier uses to provide mobile service within each subsidized service area in a standardized template. We note that we are currently considering in our Digital Opportunity Data Collection proceeding whether to require from all mobile service providers the submission of infrastructure information more generally across providers' networks. Our decision to adopt a requirement here that legacy support recipients provide infrastructure information for subsidized service areas is without prejudice to the matter of whether to adopt a similar requirement in the Digital Opportunity Data Collection proceeding. We recognize that carriers may consider infrastructure information to be sensitive, and so we will treat such data submitted as part of the initial report as presumptively confidential. While the Commission and USAC will treat as presumptively confidential and withhold from public inspection infrastructure information submitted as part of this report, USAC will provide these data to the Commission and the relevant state, territory, and Tribal governmental entities that have jurisdiction over a particular service area, as applicable.

98. We will require each legacy support recipient to provide, as part of the initial report, a brief narrative describing its current service offerings and providing a high-level accounting of how it has used legacy high-cost support received for the 12-month period prior to the deadline for the initial report. We direct the Office and Bureau to issue further guidance on the level of detail required and manner in which such initial accounting information must be provided consistent with our decision. Finally, we will require that each legacy support recipient provide certain certifications related to its current service offerings and use of legacy high-cost support, as

part of its initial report. These will include, among other certifications, a certification that the carrier has filed relevant deployment data (either via FCC Form 477 or the Digital Opportunity Data Collection, as appropriate) that reflect its current deployment covering its subsidized service area. To the extent that the Digital Opportunity Data Collection is not yet in place at the time that the initial report of current service offerings is due, we will require that each legacy support recipient certify to submitting coverage data consistent with the specifications adopted in the Digital Opportunity Data Collection proceeding via the existing FCC Form 477 system.

99.

Annual Reports.

We also adopt our proposal to require recipients of mobile legacy high-cost support to file annual reports regarding their efforts to provide 5G services throughout their subsidized service areas meeting the public interest obligations and performance requirements we adopt today. To that end, we will require that each legacy high-cost support recipient submit an annual report by July 1 in each year that includes updated information about the carrier's service offerings for the previous calendar year in its subsidized service areas, and how legacy support is being used, as well as certifications that the support recipient is in compliance with its public interest obligations and performance requirements. RWA was the only commenter to address our annual reporting proposal, of which it was supportive. Similar to initial reporting requirements above, we conclude that requiring annual reports will ensure accountability in the high-cost program by ensuring that legacy support recipients meet their public interest obligations and performance requirements.

100. Legacy high-cost support recipients must file annual reports with USAC via a web portal and filing these reports will replace the carrier's current obligation to annually file the existing FCC Form 481 with USAC. The requirement for legacy high-cost support recipients to file annual reports, and that these reports will replace the current obligation to file the existing FCC Form 481, will take effect following submission of the initial report of current service offerings. As with the initial reports, we will require a legacy support recipient to report any substantial change in the accuracy or completeness of any annual report it submits within 10 business days after the reportable event occurs, and we retain our authority to look behind recipients' annual reports and to take action to address any violations. And as with the initial reports, USAC will make the annual report filings available to the Commission and the relevant state, territory, and Tribal governmental agencies, as applicable. We direct the Office and Bureau to further specify the process by which legacy high-cost support recipients will be required to file their annual reports, including whether these reports will be incorporated into a modified FCC Form 481 or will be collected via a new form.

101. In addition to collecting the same general information collected as part of FCC Form 481, and broadly similar to the initial report, we will require annual reports to include updated information about the services each legacy support recipient offers in each subsidized service area where it receives legacy support for the previous calendar year, including the highest level of technology deployed, a target date for when 5G broadband service meeting the performance requirements will be deployed within the subsidized service area (for any service area in which 5G has not been deployed), and an estimate of the percentage of area covered by 5G deployment meeting the performance requirements we adopt today (for any area in which 5G has been deployed), as well as other relevant information that the Office and Bureau decide may be necessary. We will also require that each recipient provide updated infrastructure information on the cell sites that are located within each subsidized service area in a standardized template. As with the submission of these data as part of the initial report, we will treat infrastructure data submitted as part of an annual report as presumptively confidential.

102. We will require legacy support recipients to provide as part of each annual report an accounting of the support a carrier has received and how legacy support is being used, including a brief narrative with high-level accounting of how it used legacy high-cost support received for the previous calendar year. In addition, we will require that the legacy support recipient indicate which of these expenditures were for the deployment, maintenance, and/or operation of networks capable of offering 5G service that meet the performance requirements we adopt herein. Requiring this information will allow us to ensure that legacy support recipients meet their public interest obligation to use an increasing percentage of their legacy support toward the deployment of 5G service. We note that all ETCs that receive high-cost support remain subject to periodic audits by USAC to ensure compliance, and while we will not require legacy support recipients to submit detailed accounting information on its expenditures as part of its annual reports, opting instead to require only a brief submission of a high-level narrative alongside certifications on the use of support, we emphasize to competitive ETCs that they should retain adequate accounting records as evidence that they have met their public interest obligations to spend a minimum percentage of legacy support on the deployment of 5G in the case of an audit.

103. Finally, we will require that each legacy support recipient provide a number of certifications related to its current service offerings and use of legacy high-cost support as part of its annual reports. These will include, among other certifications, a certification that the carrier has used the required minimum percentage of legacy support toward the deployment and/or operation of 5G service meeting the minimum performance requirements, as well as that it has filed relevant deployment data either as part of FCC Form 477 or in the Digital Opportunity Data Collection, as appropriate, that reflect its current deployment covering the subsidized service area. As with our decision to require an initial report of current service offerings, to the extent that the Digital Opportunity Data Collection is not yet in place at the time that an annual report is due, we will require that each legacy support recipient certify to submitting coverage data consistent with the specifications adopted in the Digital Opportunity Data Collection proceeding via the existing FCC Form 477 system.

104.

Service Milestone Reports.

We adopt a high-level requirement that legacy high-cost support recipients submit 5G service milestone reports, and direct the Office and Bureau to propose and adopt, after notice and comment, the content and schedule of such reports in the proceeding in which they adopt carrier-specific 5G service deployment coverage requirements. We anticipate that the particular service milestone report requirements that the Office and Bureaus adopt would be generally similar to the requirements we adopt herein for 5G Fund support recipients to file interim and final service milestone reports.

2. Demonstrating Compliance With Performance Requirements

105. We adopt a modified version of our proposal to require legacy support recipients to demonstrate compliance with performance requirements. This

decision is consistent with requiring legacy support recipients to spend an increasing percentage of support on the deployment, maintenance, and operation of networks capable of supporting 5G broadband service that meets the performance requirements we adopt. In the

5G Fund NPRM,

we proposed to require that legacy support recipients, as with 5G Fund support recipients, demonstrate compliance with performance requirements by submitting milestone coverage maps reflecting 5G service deployment in conjunction with comprehensive on-the-ground measurement testing. Because we are not specifying carrier-specific 5G broadband service coverage requirements at this time, we will require a legacy support recipient to demonstrate the performance of any 5G networks deployed using legacy support by certifying in its annual report that it filed the relevant mobile deployment data as part of its FCC Form 477 filing or in the Digital Opportunity Data Collection, as appropriate, and that such data reflect any 5G deployment covering its subsidized service area. To the extent that the Digital Opportunity Data Collection is not operational at the time that a legacy support recipient is required to demonstrate compliance via the submission of 5G coverage maps, the support recipient will be required to submit maps generated consistent with the propagation model parameters adopted in the Digital Opportunity Data Collection proceeding through the legacy FCC Form 477 system. Additionally, we adopt a high-level requirement that legacy support recipients substantiate deployment coverage data with on-the-ground measurement tests, but defer a decision on the precise requirements for such tests, as well as the methodologies for conducting and validating on-the-ground measurement tests for legacy support recipients, to the proceeding in which the Office and Bureau adopt carrier-specific 5G broadband service coverage requirements.

106. Because the requirements adopted for the filing of 5G coverage maps in the Digital Opportunity Data Collection proceeding mirror the propagation model parameters specified for 5G deployment maps proposed in the

5G Fund NPRM,

requiring that legacy support recipients verify to the submission of coverage data in their FCC Form 477 or Digital Opportunity Data Collection filings will still provide us with the same information. Deferring to the Digital Opportunity Data Collection's requirements for the generation and submission of mobile coverage data therefore avoids the burden on legacy support recipients of having duplicative or conflicting requirements, as suggested by AT&T and CTIA, without undermining the public interest obligations and performance requirements we adopt. We note, however, that legacy support recipients will be required to file 5G broadband coverage maps otherwise generated using the standardized propagation model parameters adopted in the Digital Opportunity Data Collection proceeding for 5G coverage data (

i.e.,

minimum cell edge speeds of

7/1

Mbps with 50% cell loading and 90% cell edge probability) via FCC Form 477 prior to filing any annual reports, to the extent that a report is due prior to the first collection of mobile coverage data in the Digital Opportunity Data Collection.

107. Although we adopt a general requirement that legacy high-cost support recipients submit on-the-ground measurement tests to demonstrate compliance with 5G performance requirements, we do not adopt specific requirements at this time because of our decision deferring adoption of carrier-specific 5G broadband service coverage requirements for these recipients. Instead, we direct the Office and Bureau to adopt, after notice and comment, appropriate parameters for legacy high-cost support recipients to demonstrate compliance with 5G broadband public interest obligations and performance requirements, as necessary, concurrent with adoption of carrier-specific 5G broadband service coverage requirements for legacy support recipients. We anticipate that the test metrics and data specifications that the Office and Bureaus adopt, along with the methodologies for conducting on-the-ground tests and validating results, would be generally similar to the requirements we adopt herein for 5G Fund support recipients to demonstrate compliance.

108. Several commenters oppose the on-the-ground measurement testing methodology proposed in the

5G Fund NPRM,

or even the use of on-the-ground tests at all to demonstrate buildout. The Vermont Department of Public Service, on the other hand, argues that on-the-ground testing, including drive testing, is critical to verify deployment, though it “does not oppose [AT&T's] proposed approach of determining validation methodology for the 5G Fund through the [Digital Opportunity Data Collection] proceeding.”

109. We agree with the Vermont Department of Public Service that on-the-ground testing is important to verify appropriate use of legacy support. We nevertheless acknowledge commenters' concerns that on-the-ground testing may be burdensome, and expect the Office and Bureau will give appropriate weight to those concerns in determining the appropriating testing methodology for legacy support recipients. Although the issue of whether to adopt a requirement that service providers substantiate coverage maps with on-the-ground testing data remains open in the Digital Opportunity Data Collection proceeding, the outcome of that proceeding is not determinative here.

110. Because this is a universal service subsidy program, our obligations as stewards of the Fund require that we take steps to ensure that support is being used for its intended purpose and to minimize waste, fraud, and abuse. This view is consistent with our treatment of fixed broadband deployments in the universal service high-cost program, where support recipients' subsidized networks are subject to mandatory speed and latency testing, even though we did not adopt a similar testing requirement for fixed broadband networks in the Digital Opportunity Data Collection Proceeding.

3. Non-Compliance Measures for Failure To Comply With Public Interest Obligations and Performance Requirements

111. We adopt our proposal to terminate support payments to mobile competitive ETCs receiving legacy high-cost support that fail to comply with their public interest obligations and performance requirements. As stewards of the Universal Service Fund, it is our obligation to ensure that all Americans living in areas served by these carriers receive the most advanced wireless services. We do this, and create a powerful incentive to meet obligations, by ending support payments to legacy mobile competitive ETCs that fail to comply with their obligations and/or performance requirements. While ending support payments is a stricter consequence than what other high-cost support recipients face for failing to meet their public interest obligations and performance requirements, the continuation of legacy support is an interim mechanism in place as we implement the 5G Fund, and therefore, unlike the Commission's other modernized support mechanisms, the non-compliance measures here do not benefit from allowing legacy support recipients to come back into compliance prior to the end of the support term.

112. The rule we adopt is a modified version of our proposal. As we proposed, mobile competitive ETCs

receiving legacy high-cost support that fail to comply with public interest obligations or performance requirements must notify the Bureau and USAC within 10 business days of non-compliance. We initially proposed that upon receipt of this notification, we would deem the carrier to be in default, and the carrier would no longer be eligible to receive support disbursements, and would be subject to recovery of support disbursed since the effective date of the public interest obligations and performance requirements. We modify the language of the proposed rule in two ways. First, we make clear that in addition to basing a finding of default on a legacy high-cost support recipient's notification of its non-compliance, the Bureau or USAC may in the absence of any such notification determine that the support recipient is in default and subject to the same consequences if they become aware of a recipient's non-compliance. Second, to address concerns of “disproportionate penalties,” we limit the amount of support that may be subject to recovery to the legacy support not spent on the deployment, operation, and/or maintenance on voice and broadband networks that support 5G meeting the performance requirements. The amount of support we make subject to recovery, therefore, goes beyond Verizon's proposal to simply adopt the approach that the Commission used for fixed legacy high-cost support. Under the approach we adopt, for example, if the amount of legacy high-cost support disbursed to a mobile competitive ETC since the effective date of the public interest obligations and performance requirements is $10 million and the carrier spent $2 million on 5G deployment at the time of default, the carrier would be subject to up to $8 million in recovery. We conclude this modified approach for non-compliance better incentivizes 5G deployment, and thus we tweak our proposal in the

5G Fund NPRM

to avoid adverse outcomes. For instance, if a carrier foresaw its inability to meet its public interest obligations, under the approach proposed in the

5G Fund NPRM,

it could be incentivized to stop spending altogether knowing that all legacy support is subject to recovery. By making any support spent on 5G not subject to recovery, such a carrier is better incentivized to keep spending on 5G. While Verizon's proposal would incentivize continued spending, such spending would not necessarily be 5G related.

113. CRWC's argument that provisions in the Consolidated Appropriations Act of 2020, Public Law 116-93 (2020 Appropriations Act), barring the Commission from modifying its rules to reduce competitive mobile ETCs' support below 60% of their monthly baseline support amount until the Commission begins disbursing Mobility Fund Phase II support has no bearing on our authority to impose the non-compliance measures we adopt. The 2020 Appropriations Act does not relieve competitive ETCs of their obligation to comply with the high-cost program's rules, including public interest obligations. Consequently, the Commission, even after enactment of the 2020 Appropriations Act, maintains its authority to subject competitive ETCs to reductions in support amounts for failing to comply with program rules. Nor does any provision of the 2020 Appropriations Act prohibit us from adopting new rules or obligations for mobile competitive ETCs, which if not adhered to, would result in reductions in support. Congress was aware that the Commission in 2011 had expressed its intent to subject legacy high-cost support recipients to additional mobile broadband public interest obligations if the phase down in support were paused when it passed the later-in-time 2016 Appropriations Act, Public Law 114-113. The proviso to the appropriations statute permits the adoption of additional public interest obligations. The proviso states that it “shall not prohibit the Commission from . . . adopting other support mechanisms as an alternative to Mobility Fund Phase II.” Because this Report and Order implements a comprehensive alternative plan for mobile high-cost support that would replace Mobility Fund Phase II (much like the Alaska Plan, Uniendo a Puerto Rico Fund, and Connect USVI Fund), including a transition for legacy support recipients, the adoption of the 5G Fund and the associated public interest obligations on legacy support recipients are consistent with the statutory language.

114. In addition, the public interest obligations we adopt here do not “modify, amend, or change the rules or regulations of the Commission for universal service high-cost support for competitive eligible telecommunications carriers in a way that is inconsistent with” the relevant rules in place in 2015—support amounts for competitive ETCs that comply with their obligations are still determined pursuant to those rules. In fact, the public interest obligations we adopt today do not alter the support amounts competitive ETCs receive and are consistent with the statutory requirement that recipients use support “for the provision, maintenance, and upgrading of facilities and services for which the support is intended.” Finally, in enacting the 2020 Appropriations Act, Congress was legislating against the background of the established principle that we can impose additional conditions on the continued receipt of universal service funds.

4. Geographic Flexibility on Use of Legacy High Cost Support

115. We adopt our proposal to give mobile competitive ETCs receiving legacy high-cost support for a particular subsidized service area the flexibility to use support for the provision, maintenance, and upgrading of facilities and services within any of the designated service areas for which they receive legacy mobile support. Mobile competitive ETCs may also use legacy support within any of the designated service areas of an affiliated mobile competitive ETC (

e.g.,

where several ETCs share a common holding company), regardless of whether those areas span more than one state. Our decision also applies to U.S. territories where competitive ETCs receive mobile legacy high-cost support. As we reasoned in the

5G Fund NPRM,

this allows for more efficient decisions about use of legacy support while still satisfying the statutory obligation to use support for its intended purposes.” This effectively makes permanent a waiver, which has since expired, of the Commission's rules granted by the Bureau in response to the COVID-19 pandemic.

116. Commenters were generally supportive of our proposal, and we agree with CRWC that providing geographic flexibility on the use of legacy high-cost support “is a no-cost means of improving the efficiency of investments to cover the greatest number of rural citizens.” AT&T supports providing legacy support recipients with this flexibility, but cautions that doing so could result in state regulators being “unwilling to include the carrier in its annual [section 54.314] certification, rendering the ETC ineligible for support the following year.” AT&T proposes that the Commission “permit ETCs that avail themselves of this flexibility to certify directly to the Commission pursuant to section 54.314(b).” We believe adopting such a procedure at this time is premature because we cannot say whether this perceived issue will develop. Moreover, nothing we adopt permits a competitive ETC to use high-cost support to provide service outside of its or an affiliated competitive ETC's

designated service areas, nor do we permit any competitive ETC to use high-cost support for anything but its intended purposes. As such, we expect a state regulator to include a carrier that otherwise complies with its ETC obligations as required in its annual certification, and further note that we expect recipients that take advantage of this flexibility to be able to certify and produce evidence to document compliance as necessary.

5. Freeze of Non-Frozen Legacy High-Cost Support

117. We adopt our proposal to freeze the mobile high-cost support of Standing Rock, the sole competitive ETC that continues to receive non-frozen support. Standing Rock, a competitive ETC in North Dakota (study area code: 389014) and South Dakota (study area code: 399020) has been exempt from the freeze and phase-down of competitive ETC support. The pause of the phase down of competitive ETC support in 2014 adopted in the

USF/ICC Transformation Order

extended Standing Rock's exemption. While the phase down of frozen support for every other legacy support recipient was paused at 60% level specified in section 54.307(e)(2)(iii) of our rules, in this particular case, we will treat Standing Rock's support amount for the most recent 12-month period prior to the effective date of this Report and Order as the level specified in section 54.307(e)(2)(iii) for purposes of transitioning such support to 5G Fund support. The Commission adopted this approach in 2011 in order to provide time for Standing Rock, a “nascent Tribally-owned ETC . . . to reach a sustainable scale so that consumers on the Reservation can realize the benefits of connectivity that, but for Standing Rock, they might not otherwise have access to.” Standing Rock is no longer nascent and has had ample time—more time than the Commission anticipated in 2011—to reach a sustainable scale, and so the rationale for special treatment no longer exists and Standing Rock has not demonstrated a reason for continued special treatment. Accordingly, we now freeze Standing Rock's high-cost support at the level it received for the most recent 12-month period prior to the effective date of this Report and Order, after which it will be subject to the same disaggregation and phase-down rules we adopt for all competitive ETCs whose legacy support was frozen pursuant to the

USF/ICC Transformation Order.

118. Standing Rock urges the Commission to delay freezing support until release of the final eligibility map and in that time continue to use line counts for determining support amounts. It reasons that due to the COVID-19 pandemic, it “expects” line counts to increase (which would result in more support) as “Tribal residents continue to adapt to social distancing requirements and the need for online learning and online business.” With increased line counts, Standing Rock's support will increase, and it claims that it will therefore be in a better position to meet the “needs of Tribal residents.” However, Standing Rock offers no data to support this claim. Given that its comments were filed more than three months after the President declared a national emergency due to the COVID-19 pandemic, we would expect Standing Rock to demonstrate that its line counts have already increased, but it did not. Without adequate support for the claim, we find no reason to deviate from our proposal.

6. Limitations on Mobile Legacy High Cost Support

119. We now clarify, as we proposed, that only terrestrial mobile wireless carriers may receive mobile high-cost support, and that recipients of mobile legacy high-cost support must use such support only for the provision, maintenance, and upgrading of terrestrial mobile voice and broadband facilities and services. Consequently, carriers offering only non-terrestrial services, such as mobile-satellite service, will no longer be eligible to receive mobile legacy high-cost support after the effective date of these rules. We must ensure that we are funding advanced mobile services with our limited universal service funds, even for carriers receiving legacy support, and non-terrestrial services receiving legacy support cannot meet the appropriate broadband public interest obligations that we adopt for legacy support recipients. However, an affected carrier is not prohibited from bidding for, and winning, new 5G Fund support in an auction, provided that it is otherwise determined to be eligible. Moreover, we clarify that legacy support and 5G Fund support recipients may use whatever backend technologies, including satellite backhaul, to meet 5G public interest obligations so long as they offer to the end user terrestrial 5G service that complies with the 5G-NR standard and meets all performance requirements. We are not, therefore, categorically excluding satellite technology from networks supported by the 5G Fund so long as a carrier seeking 5G Fund support is capable of providing voice and 5G broadband terrestrial service meeting necessary program requirements.

F. Schedule for Transition From Legacy High-Cost Support to 5G Fund Support

120.

Authority to Modify the Legacy High-Cost Support Rules.

We adopt our tentative conclusion that the 5G Fund constitutes a comprehensive mechanism for mobile high-cost support that serves as an alternative to Mobility Fund Phase II and likewise conclude that the framework we adopt for the 5G Fund is consistent with the Commission's statutory authority to modify the rules for legacy high-cost support. We reached similar conclusions with respect to both the Alaska Plan and the Uniendo a Puerto Rico Fund and the Connect USVI Fund.

121. The statutory language expressly allowed for the Commission to “consider[ ], develop[ ], or adopt[ ] other support mechanisms as an alternative to Mobility Fund Phase II.” Indeed, the Commission has adopted alternate support mechanisms and otherwise ceased disbursement of legacy high-cost support based upon the phase down schedule in section 54.307(e)(2) of our rules to mobile competitive ETCs in Alaska, as well as in Puerto Rico and the U.S. Virgin Islands. Similar to the schedule we adopt here, 12 months after release of the

Alaska Plan Order,

81 FR 69772, Dec. 7, 2016, adopting the Alaska Plan as a “comprehensive alternative plan for high-cost mobile support in Alaska,” the Commission commenced a three-year phase down of support for carriers in Alaska that did not elect to participate in the Alaska Plan. As with the adoption of those alternate support mechanisms, the 5G Fund for Rural America will serve as a comprehensive alternative mechanism for mobile legacy high-cost mobile support adopted as an alternative to Mobility Fund Phase II. Because the statute does not prohibit the Commission from adopting other comprehensive support mechanisms for high-cost mobile support as an alternative to Mobility Fund Phase II, we conclude that there is no legal issue with us adopting rules that will allow for the phase down of legacy support in areas that will be ineligible for 5G Fund support in the Phase I auction, and doing so prior to that auction.

122. In the

5G Fund NPRM,

we proposed a schedule for phasing down legacy high-cost support over two years for areas that are ineligible for 5G Fund support once the final eligible areas are known prior to conducting the 5G Fund Phase I auction. Several commenters question our legal authority to resume the phase down of legacy high-cost support before we conclude the 5G

Fund Phase I auction. These commenters focus on statutory language limiting our ability to modify our rules for competitive ETCs receiving legacy high-cost support in a manner inconsistent with sections 54.307(e)(5) and (e)(6) of our rules, as in effect in 2015. Section 54.307(e)(5) of the 2015 rules provided that legacy high-cost support competitive ETCs would continue to receive support at 60% of the frozen support level until “Mobility Fund Phase II is implemented.” We do not address former section 54.307(e)(6) because the language in that rule applies only to competitive ETCs that become eligible to receive Mobility Fund Phase II support, whereas our proposal to resume the phase down of legacy support prior to the 5G Fund Phase I auction to which some commenters object pertains only to those areas that are determined to be ineligible for support.

123. The assertion by CRWC that “a competitive ETC is currently entitled to receive 60 percent of its monthly base line support amount each month until Mobility Fund Phase II is implemented” widely misses the mark. As the Commission has consistently made clear and the courts have recognized, carriers are not “entitled” to receipt of universal service funds. The statutory provision is best read as a limitation on our ability to resume the currently-paused phase down of legacy support without ensuring that recipients can avail themselves of a high-cost support mechanism to replace legacy support, and not as establishing an “entitlement” for competitive ETCs to receive mobile legacy high-cost support at 60% of the frozen support level. As an alternative to Mobility Fund Phase II, the 5G Fund, along with the transition schedule adopted herein, provides an alternate comprehensive mechanism for distributing high-cost support as provided for within our statutory authority.

124. We also disagree with CRWC's argument that we are “barred from finding that, by adopting new rules [the Commission] will have successfully `implemented' ” the 5G Fund, which CRWC considers to be simply a “rebranded Mobility Fund [Phase] II.” This “implementation” argument lacks merit because nothing in the express language of the statute precludes us from adopting rules for a comprehensive support mechanism that is an alternative to Mobility Fund Phase II, and in so doing, reducing the legacy support for areas that are found to be ineligible for support under this new, alternate mechanism. We also do not consider the 5G Fund simply to be Mobility Fund Phase II by another name. Rather, this Report and Order establishes an entirely new program for mobile high-cost support that builds upon lessons we have learned from our previous efforts to reform high-cost support and close the digital divide, and includes an integrated plan with performance requirements, public interest obligations, and compliance provisions for both legacy high-cost support recipients and 5G Fund support recipients to ensure the efficiency and the good stewardship of our limited universal service fund dollars.

125. Even if our ability to reduce the amount of mobile legacy high-cost support that we distribute were to turn on whether we have “implemented” the 5G Fund, CRWC's argument still fails. In finalizing the rules and determining the final map of areas eligible for 5G Fund support, we will have implemented the 5G Fund for ineligible areas because we will have “give[n] practical effect to” the new program and ensured its “actual fulfillment by concrete measures.” In reading the language of the statute and our rules, CRWC seemingly confuses the concept of adopting a support mechanism,

i.e.,

Mobility Fund Phase II, with the concept of holding the Mobility Fund Phase II

auction,

which was included in the framework of that support mechanism and was to be the means with which we would determine the amounts of support a recipient would receive. Indeed, in 2015, when Congress originally adopted the appropriations rider, the Commission had not even adopted the use of an auction to distribute Mobility Fund Phase II support, something we did only in 2017. By analogy here, the fact that steps will remain after we finalize both the rules for the 5G Fund and the final list of areas that will be eligible for support in the Phase I auction is also not dispositive, and is in fact irrelevant, to a determination of when the 5G Fund is “implemented.” To the extent that the time at which we determine final eligible areas would have been earlier under the Option A approach, which appears to be of concern to CRWC, we note that, consistent with our decision adopting Option B, we anticipate that the final eligible areas will be determined no earlier than the time at which we finalize the Phase I auction procedures as part of our typical pre-auction process. While CRWC contends that the 5G Fund would not be “implemented” until the first month that a winning bidder receives 5G Fund support, it is wholly unclear why such a particular action definitively marks the implementation of the 5G Fund more plausibly than other actions, such as when the rulemaking is complete and final rules become effective, when the Phase I auction closes but before 5G Fund support is authorized, or when all winning bidders have either been authorized for 5G Fund support or defaulted. CRWC's reading that only when new 5G Fund support is awarded can legacy high-cost support be reduced below the 60% level would seemingly mean that if we conducted a Phase I auction and no carriers were ultimately authorized for 5G Fund support (due to,

e.g.,

the auction failing to close, or auction defaults for failure to file a long form application) we would continue to be obligated to disburse legacy support indefinitely. Neither the Commission nor Congress would have intended such a result.

126. Further, we are also not persuaded by CRWC's argument that its reading of the verb “implement” is most consistent with section 54.307(e)(5) and (e)(6) of our rules, as in effect in 2015. Former section 54.307(e)(5) specifies the legacy support amount that a competitive ETC shall receive “[i]n the event that the implementation of Mobility Fund Phase II has not occurred by” 2014, whereas former section 54.307(e)(6) specifies the “[e]ligibility after [i]mplementation of Mobility Fund Phase II” of a competitive ETC to continue receiving legacy support after it becomes eligible to receive Mobility Fund Phase II support. These rules are meant to override the general phase down schedule in section 54.307(e)(2), establishing the legacy high-cost support amounts that a competitive ETC is eligible to receive at points in time before and after future high-cost support amounts are determined via the support mechanism that replaces legacy high-cost support. In the 5G Fund, we will have determined the future high-cost support amounts for areas that are ineligible for 5G Fund (no support) after the final rules are effective and eligible areas are finalized.

127. Lastly, reading the statute and our rules in the manner that CRWC proposes, providing potentially endless entitlement to legacy high-cost support after a final conclusion that no support is warranted, would broadly conflict with our responsibility to be good stewards of universal service support and our long standing policy goal to reform our high-cost program. We do not believe Congress could reasonably have intended such a result. Indeed, this reading would provide a competitive ETC with legacy support at the same level until the close of the Phase I auction, even after we have made a final

determination that the area is no longer in need of ongoing support. CRWC would have us delay reform of the legacy support program for such areas for months or even longer after finalizing the rules and procedures for the program, regardless of whether we have made a determination that the supported area is currently being served by an unsubsidized competitor and is therefore ineligible for 5G Fund support in the Phase I auction. Such an outcome is not in the public interest, and CRWC has identified no reasons why Congress or the Commission intended to require this outcome. We therefore conclude that there is no legal bar to commencing phase down of legacy high-cost support in areas that are ineligible for 5G Fund support as soon as those areas are finalized. This is especially true because we are proceeding with Option B, and using new, granular mobile broadband data to render such determinations. Our decision here is guided by our need to balance competing priorities when managing our universal service support programs.

128.

Legacy High-Cost Support Transition Schedule.

We adopt a modified version of our proposed schedule for transitioning from legacy high-cost support to 5G Fund support that will reform mobile high-cost support while minimizing the disruption to carriers currently receiving legacy support. Similar to the transition schedule we adopted for Mobility Fund Phase II, legacy high-cost support will be converted to 5G Fund support, maintained for no more than five years to preserve service, or subject to phase down over two years depending upon whether the area was eligible for 5G Fund Phase I support and if eligible for the auction, whether there was a winning bidder for the area. We do not set an absolute date on which mobile legacy high-cost support would cease, regardless of when the 5G Fund Phase I auction is conducted. For legacy high-cost support that is subject to two-year phase down, support will be provided at two-thirds of the level of the disaggregated legacy support for the first 12 months, and one-third of the level of the disaggregated legacy support for the next 12 months. We will exempt competitive ETCs from 5G deployment public interest obligations and performance requirements for any areas where legacy support is being phased down, including the requirement that support recipients spend an increasing percentage of support on 5G services and that recipients demonstrate compliance through the submission of on-the-ground measurement tests. We will continue to require that competitive ETCs meet public interest obligations relating to offering service at reasonably comparable rates, collocation and voice and data roaming requirements, and reporting requirements for subsidized service areas where legacy support is being phased down, however. Once legacy support has been completely phased down for a service area, the competitive ETC will no longer need to meet any public interest obligations for such an area. All legacy high-cost support received by a competitive ETC in areas subject to phase down will end no later than two years after announcement of the conclusion of the auction. With the exception of the timing of the phase down of legacy support in ineligible areas previously discussed or our proposal to cease all support after five years discussed below, commenters generally did not object to our general transition schedule, including our proposals to phase down support over two years or to continue legacy support for up to five years to preserve service.

129. Under the transition schedule we adopt, in areas determined not to be eligible for 5G Fund Phase I support, legacy support will be phased down starting the first day of the month after the release of the final map of areas eligible for 5G Fund support. Because we expect that carriers will not require support in order to deploy 5G service in areas ineligible for 5G Fund support, and legacy support recipients will not be able to win 5G Fund support in the 5G Fund Phase I auction for those areas, we conclude that it is not in the public interest to continue legacy support for ineligible areas. As previously discussed, we will exempt areas determined to be ineligible for support from the 5G broadband public interest obligations and performance requirements we adopt for legacy high-cost support recipients. However, legacy support recipients will continue to have a public interest obligation to file annual reports, offer services at reasonably comparable rates, and allow for reasonable collocation and voice and data roaming for areas ineligible for support until support is fully phased down and they cease to receive legacy high-cost support for such areas. We will commence the phase down of support in ineligible areas after release of the final map of eligible areas and prior to the conclusion of the Phase I auction. While CRWC asserts that it would be “arbitrary” to adopt the phase down of support in ineligible areas prior to the close of the 5G Fund Phase I auction because carriers' support funds have already been committed through 2020 and 2021, in view of our decision to base the areas eligible for Phase I support on a new collection of coverage data, we now anticipate that it may be a year or more before this phase down would commence. Competitive ETCs that receive legacy high-cost support should therefore be able to factor into their capital expenditure plans that the amount of support they receive may be reduced in areas also served by an unsubsidized competitor in the near future.

130. However, we decline to adopt our proposal to end all legacy high-cost support to mobile carriers at the frozen high-cost support level no later than five years after the effective date of this Order, regardless of when the 5G Fund Phase I auction is conducted. No commenters support this proposal, and we agree that providing more certainty to legacy support recipients will promote expansive 5G deployment in these otherwise high-cost areas. Instead, for areas that are eligible for 5G Fund Phase I support, on the first day of the month following the release of a public notice announcing the close of the 5G Fund Phase I auction, legacy support for current recipients will either be maintained, pending authorization of the winning bidder to receive 5G Fund support, maintained in order to preserve service in areas without a winning bidder in the Phase I auction, or subject to phase down for all other legacy support recipients. That is, for eligible areas not won in the 5G Fund Phase I auction, legacy support will begin to phase down over two years or be maintained in order to preserve service for no more than five years after the Phase I auction closes regardless of whether the eligible area may be won in the 5G Fund Phase II auction.

131. In eligible areas won in the 5G Fund Phase II auction, legacy support (whether subject to phase down or preservation-of-service support) will either be maintained, pending authorization of the winning bidder to receive 5G Fund support, maintained in order to preserve service for the legacy support recipient receiving preservation-of-service support in areas without a winning bidder, or be subject to phase down beginning the first day of the month following release of a public notice announcing the close of the 5G Fund Phase II auction. Legacy high-cost support subject to phase down after the 5G Fund Phase I auction will continue to follow the original phase down schedule that commenced after the close of the 5G Fund Phase I auction for support recipients that were not the winning bidder in eligible areas won

during the 5G Fund Phase II auction. If the carrier receiving maintenance of support in order to preserve service is not the winning bidder for an eligible area won during the 5G Fund Phase II auction, that carrier would begin to receive phased down support at this time. Legacy high-cost support maintained to preserve service after the 5G Fund Phase I auction will continue for eligible areas not won during the 5G Fund Phase II auction, but for no more than five years after the close of the Phase I auction.

132. More specifically, we adopt our proposal that for a winning bidder that is receiving legacy support in the area of its bid, legacy support will cease and 5G Fund support will commence on the first day of the month following release of a public notice authorizing that carrier to receive 5G Fund support. For portions of a legacy support recipient's subsidized service area that are eligible for 5G Fund support but for which there is no winner in a 5G Fund auction, the carrier will continue to receive legacy support in areas that do not overlap another legacy support recipient's subsidized service area. In those portions where more than one carrier receives legacy support (

i.e.,

overlapping subsidized service areas), the recipient that receives the lowest amount of disaggregated legacy support for that area among the carriers that have reported deployment of the highest level of technology—

e.g.,

5G—in the state will continue to receive legacy support for the overlapping area while all others recipients will receive phase down support, based upon the recipients' submitted mobile broadband coverage data. In the case of ties where two carriers receive an identical amount of legacy support, we adopt our proposal to choose the preservation-of-service support recipient that has subsidized service areas covering a larger total area within the state. If the winning bidder defaults on its bid prior to authorization, or otherwise fails to be authorized, we will not award 5G Fund support for that area. However, to avoid perverse incentives, consistent with our decision to maintain support to preserve service only in areas that lack a winning bid, a carrier receiving legacy support in the area of its winning bid will not receive preservation-of-service support and will instead be subject to phase down if not authorized to receive 5G Fund support.

133. In eligible areas where there is no winning bidder in the 5G Fund Phase I auction, the legacy support recipient rec

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