Early Review of the FCC’s Broadband Performance Testing Order on Reconsideration

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The draft Order on Reconsideration (Order), released October 4, 2019, by the Federal Communications Commission (FCC), affirms the overall approach adopted by the FCC’s Wireline Competition Bureau, Wireless Telecommunications Bureau and Office of Engineering and Technology (collectively, Bureaus) while making these certain, targeted refinements:

  • Linking the start of carriers’ network performance testing to coincide with the timing of their specific deployment obligations
  • Providing a pretesting period so carriers can begin performance testing and address testing issues without any penalties before the formal testing and reporting period begins
  • Allowing greater flexibility for carriers to choose the endpoints for testing network performance

Changes to the Schedule

The central news in the draft Order is to provide carriers with an additional year or more to prepare for this testing. It officially proposes a pretesting period allowing carriers to choose and validate systems ahead of the testing that could affect their support. Carriers will be in full compliance during the pretest period if those results are submitted to the Universal Service Administrative Company in a timely fashion.

Full testing begins later, based on random sampled live locations according to carrier type:

Testing Schedule

The decision to stagger pretesting and full testing start dates is keyed to each carrier type’s location count reporting milestones.

Number of Test Locations

The draft Order confirms that no changes are to be made to the number of locations subject to testing or the frequency of testing. However, the draft Order clarifies the same location can be used for both speed and latency testing on a quarterly basis. The number of locations is based on size:

  • Largest carriers: Test 50 locations per service tier
  • Smaller carriers—those with fewer than 500 in a tier: Test 10 percent of the locations in each tier
  • Smallest carriers—those with fewer than 50 subscribers: Test five locations. If the carrier can’t find five locations to test in Connect America Fund (CAF)-supported locations, it may test in non-CAF-supported areas.

It remains a requirement, if necessary, to temporarily upgrade customers’ speed for testing.

Daily Test Period

The draft Order allows no change in the daily testing period of 6 p.m. to midnight local time, including weekends. The FCC acknowledged but wasn’t persuaded by rural association comments suggesting network or Internet Exchange Point (IXP) congestion might affect tests. Instead, the FCC said that in the absence of strong evidence, it prefers to see parity in these time slots with urban price cap carriers that have already begun their testing.

Specific Speed & Latency Test Requirements

No changes were made in the draft Order for the hourly testing for speed—one download and one upload speed test per hour at each location, unless cross-talk is detected. Cross-talk is set at 64 Kbps for download tests and 32 Kbps for upload tests. The FCC allows tests to start at any time in the hour. However, if a company starts testing within the first 15 minutes of the hour and detects cross-talk and then repeatedly retries the test in one-minute intervals, the carrier can report the test as unsuccessfully completed because of cross-talk. If the carrier doesn’t start in the first 15 minutes but still detects cross-talk, it will have to conduct and report a successful speed test for that testing hour regardless of cross-talk. The draft Order left in place the minimum of one test per minute per testing hour (60 tests per hour) for latency testing. Again, the test may be postponed due to cross-talk at the same 64 Kbps for download threshold used in speed testing.

Endpoints for Testing

Under the earlier Performance Measures Order, all high-cost support recipients serving fixed locations must perform speed and latency tests from the customer premises of an active subscriber to a remote test server located at, or reached by passing through, an FCC-designated IXP. In that Order, the Bureaus expand the list to permit testing to six additional metropolitan areas. This is to ensure that most continental U.S. locations are within 300 miles of an FCC-designated IXP and all are within approximately 500 air miles of one. Further, the draft permits providers to use any FCC-designated IXP for testing purposes, rather than limiting testing to the nearest IXP.

Providers serving noncontiguous areas greater than 500 air miles from an FCC-designated IXP also would be permitted to conduct testing between the customer premises and the point at which traffic is aggregated for transport to the continental United States.

However, the draft Order has not yet fully dealt with industry concerns about how far into the subscriber’s network testing must reach. There’s a desire to see parity regarding testing already underway with price cap carriers in urban areas, but some say insufficient attention to ways that subscriber-purchased routers degrade internet speed, or latency, may sabotage test results through no fault of the provider.

Conclusion

We want to stress this is an Order on circulation that has not yet been debated or voted on by all five commissioners. That’s scheduled to happen at the FCC’s Open Meeting later this month. So it’s possible further delays and negotiations may follow.

Several notable issues remain unclarified, including how nonconsenting subscribers will play into testing, whether providers will have to increase subscriber broadband speeds to arrive at the prescribed number of locations within each testing tier and how providers must handle any upgraded subscribers after testing is completed.

We’ll provide updates as new information becomes available and rules are finally promulgated.

If you have any questions, please reach out to your BKD trusted advisor or use the Contact Us form below.


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