Eligible Locations Adjustment Process (ELAP)
The Connect America Fund Phase II Auction program, commonly referred to as “CAF II Auction,” provides funding to carriers to deliver voice and broadband service to a certain number of locations areas where the incumbent price cap carrier didn’t accept CAF Phase II Model funding and in extremely high-cost areas located within the service areas of the incumbent price cap carriers . As of September 2020, the FCC had authorized more than $1.47 billion in support over 10 years to 194 winning carriers in a 2018 competitive bidding process (Auction 903) to bring service to a total of 702,745 qualifying locations in 45 states. Learn more.
The FCC Wireline Competition Bureau established a voluntary challenge process – the Eligible Locations Adjustment Process (ELAP) – to facilitate post-auction review and potential adjustment of the defined CAF II Auction deployment obligations (and associated support) on a state-by-state basis if the total number of locations funded by the program exceeds the number of actual locations.
USAC, in conjunction with the FCC, designed an online portal – called the ELAP module – to accept ELAP information from CAF II Auction support recipients seeking to participate in the process (Participants), as well as individuals, entities and governing authorities that demonstrated a direct and verifiable interest in obtaining funded service within the Participant’s service area (Stakeholders) and want to submit challenges. The ELAP module is accessible through E-File.
How It Works
PARTICIPANT SUBMISSION: ELAP started with a one-time collection from Participants of certain “location information” (e.g., address, latitude/longitude coordinates, number of units) for all qualifying CAF II Auction locations for a state. Qualifying locations included residential housing units or small businesses served by mass-market Internet service. Participants also submitted location information for prospective locations, which were any locations that were not yet qualifying but that the carrier might want to serve at some point in the future and therefore still count toward its total defined build-out obligation for the six-year CAF II Auction deployment timeline. Qualifying locations and prospective locations, collectively, were referred to as “eligible locations.” In addition, Participants submitted location information for locations that they identified as ineligible, as well as a short description of why such locations should be treated as ineligible. Participants also submitted evidence that no further qualifying locations could be found.
As part of this process, Participants submitted a description of the methodology used to identify all eligible locations and supporting evidence demonstrating that they took the steps described in their methodology throughout their service area, or an explanation of why supporting evidence is unavailable or unnecessary. Examples of acceptable supporting evidence include web-based photography, print outs from E911 and tax databases and real estate records. Participants uploaded a CSV (comma separated values) file with this location information into the ELAP Module using a template provided by USAC, along with a description of their methodology and supporting documentation.
The Participant submission filing window opened on April 1, 2021, and closed on Aug. 3, 2021.
PRIMA FACIE DETERMINATIONS AND PUBLICATION OF LOCATION INFORMATION. After the Participant submission filing window closed, the FCC released a Public Notice in late 2021 announcing that 27 unique Participants had satisfied the evidentiary burden to continue with ELAP by submitting and certifying information for locations in a total of 23 states, with a total of 36 different Participant/State combinations. The FCC made public the following location information filed and certified by Participants through the ELAP module: the Participant name, the Study Area Code (SAC) where the location sits, the type of location reported, the latitude and longitude coordinates of the location, the postal address and the number of units at the location. This information is available on the FCC CAF II Auction web page. In addition, USAC used certain location information in these filings to populate a public map, the ELAP Map, so that prospective Stakeholders could review the information and determine whether to submit challenges.
STAKEHOLDER ELIGIBILITY DETERMINATION. In order to submit challenges, Stakeholders were required to establish their identity and eligibility to participate in ELAP through the Stakeholder registration process. To qualify, individuals or entities demonstrated that they have a direct interest in obtaining funded service within the service area (i.e., a property or relevant commercial interest). They also certified that they do not hold a controlling interest in a competitive service provider. Governing authorities established that their jurisdiction covers at least some part of the service area. USAC collected certain information from Stakeholders to verify eligibility and identity using a third-party commercial verifier.
The Stakeholder registration process closed on Fri., May 13, 2022 (DA 22-301).
STAKEHOLDER CHALLENGE: Outside Stakeholders that successfully established their identity and eligibility could participate in the challenge process by supplying location information (addresses, geo-coordinates and number of units) for locations that they identified as missing from, or inaccurately reported in, the Participants’ filings. Stakeholders were required to separately identify qualifying locations and prospective locations, and provide a description of the methods used to identify the locations and some supporting evidence.
The Stakeholder challenge window opened on Fri., May 20, 2022, and closed on Thurs., August 18, 2022 (DA 22-301).
ACCESS TO CONFIDENTIAL INFORMATION: The FCC recognized that stakeholders might want to access information in a Participant’s ELAP submissions that was not publicly available and presumptively confidential, such as the Participant’s methodology for identifying eligible locations and supporting evidence files. They could only do so under the terms and conditions of an FCC Protective Order and the ELAP Order.
Likewise, Participants could only access information submitted by relevant Stakeholders under the terms and conditions of the FCC Protective Order. Information submitted by Stakeholders was treated as presumptively confidential. The FCC said it would share certified Stakeholder challenge information with Participants under the terms and conditions of the Protective Order directly through the ELAP module and would generate reports, upon Participant request, that included an individualized map showing the locations submitted by Stakeholders. Participants could not submit responses to challenges during the Stakeholder challenge window.
PARTICIPANT RESPONSE: After the challenge window closed, Participants facing an ELAP challenge had the opportunity to access and review certified data submitted by Stakeholders and to submit additional information in response to challenges through the ELAP module. Participants that did not oppose a Stakeholder challenge were not required to submit any additional information.
The Participant response window opened on Tues., Aug. 23, 2022, and closed on Fri., Sept. 22, 2022. Participants could not submit any additional information once the response window closed. (DA 22-816).
ADJUDICATION: After the closing of the response window, the FCC adjudicated all ELAP requests for adjustment of defined deployment obligations based on the “preponderance of the evidence” standard. This means that the FCC only adjusted deployment obligations (and associated support and Letter of Credit obligations) if, based on the record, the commission determined that it was more likely than not that a Participant’s defined deployment obligation total was greater than the number of actual locations within a state. The FCC concluded ELAP with an adjudication order adopting new deployment obligations, and pro-rated reductions to support authorizations, for CAF II Auction Participants that met the burden of proof required for the “preponderance of the evidence” standard. Participants are not required to serve every eligible location specifically identified through ELAP, but they must meet the adjusted defined deployment obligations in accordance with program requirements.