La. Admin. Code tit. 4 § XXI-1101

Current through Register Vol. 50, No. 9, September 20, 2024

Section XXI-1101 - Fair, Expeditious, and Evidenced-Based Challenge Process

A. Permissible Challenges. The office only allows challenges on the following grounds:

1. the identification of eligible community anchor institutions;

2. community anchor institution BEAD eligibility determinations.;

3. BEAD eligibility determinations for existing broadband serviceable locations (BSLs);

4. enforceable commitments; or

5. planned service;

B. Permissible Challengers. During the BEAD challenge process, the office only allows challenges from nonprofit organizations, units of local and tribal governments, and broadband service providers.

C. Challenge Process Overview. The challenge process conducted by the office includes four phases, spanning up to 90 days. Implementation efforts around the challenge process are supported through capable state contractor and support teams that provide GIS capabilities, data analytics and technical audit skills. Decisions will ultimately be made by the Executive Director and staff. The state of Louisiana uses the challenge process as described below:

1. Publication of Eligible Locations: Prior to beginning the challenge phase, the office shall publish the set of locations eligible for BEAD funding. The office shall also publish locations considered served, as they may be challenged.

2. Challenge Phase: During the challenge phase, the challenger submits the challenge through the office challenge portal. The office notifies the provider of the challenge through an automated email. After this stage, the location enters the "challenged" state.

a. Minimum Level of Evidence Sufficient to Establish a Challenge: The office verifies the address provided is a BSL.

b. Timeline: Challengers have 30 calendar days to submit a challenge from the time the initial list of unserved and underserved locations, community anchor institutions, and existing enforceable commitments are posted.

3. Rebuttal Phase: Only the challenged service provider may rebut the reclassification of a location or area with evidence, causing the location or locations to enter the "disputed" state. If a challenge that meets the minimum level of evidence is not rebutted, the challenge is sustained. A provider may also agree with the challenge and thus transition the location to the "sustained" state. Providers must regularly check the challenge portal notification method (e.g., email) for notifications of submitted challenges.

a. Timeline: Providers have 30 calendar days from notification of a challenge to provide rebuttal information to the office.

4. Final Determination Phase: During the Final Determination phase, the office makes the final determination of the classification of the location, either declaring the challenge "sustained" or "rejected."

a. Timeline: Following intake of challenge rebuttals, the office makes a final challenge determination within 30 calendar days of the termination of the challenge rebuttal. Reviews occur on a rolling basis, as challenges and rebuttals are received.

D. Evidence and Review Approach. The office ensures that the review of all applicable challenge and rebuttal information is completed in detail without bias, before deciding to sustain or reject a challenge. The office documents the standards of review to be applied and requires reviewers to document their justification for each determination. The office also requires that all reviewers submit affidavits to ensure that there is no conflict of interest in making challenge determinations.

E. Challenge Types

Code	Challenge Type	Description
A	Availability	The broadband service identified is not offered at the location, including a unit of a multiple dwelling unit (MDU).
L	Data cap	The round-trip latency of the broadband service exceeds 100 ms.
D	Technology	The only service plans marketed to consumers impose an unreasonable capacity allowance ("data cap") on the consumer.
T	Business service only	The technology indicated for this location is incorrect.
B	Enforceable Commitment	The location is residential, but the service offered is marketed or available only to businesses.
E	Planned service	The challenger has knowledge that broadband will be deployed at this location by the date established in the deployment obligation.
P	Not part of enforceable commitment.	The challenger has knowledge that broadband will be deployed at this location by June 30, 2024, without an enforceable commitment or a provider is building out broadband offering performance beyond the requirements of an enforceable commitment.
N	Location is a CAI	This location is in an area that is subject to an enforceable commitment to less than 100 percent of locations and the location is not covered by that commitment. (See BEAD NOFO at 36, n. 52.)
C	Location is not a CAI	The location should be classified as a CAI.
R		The location is currently labeled as a CAI but is a residence, a non-CAI business, or is no longer in operation.

F. Area and MDU Challenge

1. The office administers area and MDU challenges for challenge types A, L, D, and T. An area challenge reverses the burden of proof for availability, latency, data caps and technology if a defined number of challenges for a particular category, across all challengers, have been submitted for a provider. The provider receiving an area challenge or MDU must demonstrate that they are indeed meeting the availability, latency, data cap and technology requirement, respectively, for all (served) locations within the area or all units within an MDU.

a. An area challenge is triggered if six or more broadband serviceable locations using a particular technology and a single provider within a census block group are challenged.

b. An MDU challenge requires challenges by at least three units or 10 percent of the unit count listed in the Fabric within the same broadband serviceable location, whichever is larger.

2. Each type of challenge and each technology and provider is considered separately. If a provider offers multiple technologies, each is treated separately.

3. Area challenges for availability need to be rebutted with evidence that service is available for all BSL within the census block group. For fixed wireless service, the challenge system offers representative random, sample of the area in contention, but no fewer than 10, where the provider has to demonstrate service availability and speed.

La. Admin. Code tit. 4, § XXI-1101

Promulgated by the Office of the Governor, Division of Administration, Office of Broadband Development and Connectivity, LR 50, exp. 7/18/2024(Emergency), Amended LR 50504 (4/1/2024).

AUTHORITY NOTE: Promulgated in accordance with R.S. 51:2370.21-2370.33.