The Federal Communications Commission (“Commission”) adopted an Order that modified its previous order on Performance Measurement Testing and set a new timeline for carriers to perform the required testing and then to report the results. The Order can be viewed online using the following link: https://docs.fcc.gov/public/attachments/FCC-19-104A1.pdf.

When Is The Testing To Be Done

This Order adopted a new schedule for the performance measurement testing and the Order established a pre-testing period that will allow carriers to become familiar with the required testing and the proper measurement of the speed and latency of their networks, and provide an opportunity to adjust to the new regime. During the pre-testing, carriers are required to conduct testing using a USAC-determined random sample of subscribers, and results must be submitted to USAC within one week of the end of each quarter. USAC is in the process of developing a mechanism for carriers to submit testing data electronically. No support reductions for failing to meet standards will occur for the pre-testing period. However, the Commission will consider carriers that fail to conduct pre-testing and submit results in a timely fashion to be in non- compliance. The following is the schedule for the pre-testing and testing periods for carriers based on their specific high cost support testing obligations:

 

Schedule for Pre-Testing and Testing

Program

CAF Phas II (Price Cap)
RBE
Alaska Plan*
ACAM I
ACAM I Revised
ACAM II
Legacy Rate of Return
CAF II Auction
New NY Broadband

Pre-Testing Start Date

January 1, 2020
January 1, 2021
January 1, 2021
January 1, 2021
January 1, 2021
January 1, 2022
January 1, 2022
January 1, 2022
January 1, 2022

 

Testing Start Date

July 1, 2020
January 1, 2022
January 1, 2022
January 1, 2022
January 1, 2022
January 1, 2023
January 1, 2023
January 1, 2023
January 1, 2023

*Note: Alaska Plan carriers that have committed to defined build-out obligations must perform speed and latency test of their network. However, Alaska rate-of-return carriers that have committed to maintaining existing service levels are not subject to the performance measures.

Testing Initiation Point and Endpoint

The Commission clarified both the initiation point and endpoint for carriers to use for testing purposes. Regarding the initiation point, carriers should test from the customer side of any network equipment. For the endpoint, the test should be to an FCC-designated IXP. An FCC- designated IXP is “any building, facility, or location housing a public Internet gateway that has an active interface to a qualifying ASN.” The Commission has designated 44 major North American ASNs and has directed the Bureaus to update this list of ASNs periodically.

Speed Testing Requirements

Carriers must conduct and report at least one download test and one upload speed test per testing hour at each subscriber test location. However, the Commission clarified that providers do not have to begin speed tests at the beginning of each test hour. The commission noted that there is one exception–—when a carrier begins “attempting speed tests within the first fifteen minutes of a testing hour, and repeatedly retries and defers the test at one-minute intervals due to consumer load meeting the adopted cross-talk thresholds (i.e., 64 Kbps for download tests or 32 Kbps for upload tests)”— the carrier may report that no test was successfully completed during the test hour because of cross-talk. In contrast, the Commission stated that “a provider that does not attempt a speed test within the first 15 minutes of the hour and/or chooses to retry tests in greater than one-minute intervals must, however, conduct and report a successful speed test for the testing hour regardless of cross-talk.”

Latency Testing Requirements

The Commission provided some clarity on what the Commission considers a sufficient latency test. According to the Commission, a “test” constitutes a “single, discrete observation or measurement of speed or latency.” Further, the Commission clarified that “while carriers may choose to continuously start and stop latency testing every minute and record the specific result,” there is no requirement to do the testing in this manner. Instead, carriers may continuously run the latency testing software over the course of a test-hour and record an observation or measurement every minute of that test-hour.” What this means is that carriers have the flexibility to choose how to conduct their latency testing, as long as “one separate, discrete observation or measurement is recorded each minute of the specific test-hour.”

Number Of Testing Locations

The Commission declined to modify the previously adopted sample sizes for speed and latency. Therefore, carriers are still required to test a maximum of 50 randomly selected subscriber locations per required service tier offering, depending on the number of subscribers. For smaller carriers with fewer than 500 subscribers in a particular service tier, they are required to test 10% of the total subscribers in the service tier with the exception that a carrier with 50 or fewer subscribers must test five subscriber locations. If a carrier cannot find five CAF-supported locations to test, the carrier testing fewer than five CAF-supported subscriber locations would be subject to verification that more customers are not available.

Standard For Full Compliance

The Commission declined to modify the requirement that to achieve full compliance with the latency and speed standards, a carrier must show that 95% of latency measurements during

testing were below 100 ms round-trip time, and that 80% of speed measurements were minimally at 80% of the required network speed. However, the Commission clarified that “carriers are not required to provide speeds beyond what they are already obligated to deploy as a condition of their receipt of high-cost support.” Therefore, for a location where a carrier is obligated to provide 10/1 Mbps service, the Commission “only requires testing to ensure that the location provides 10/1 Mbps service, even if the customer there has ordered and is receiving 25/3 Mbps service.”

In addition, the Commission reconsidered the Bureaus’ decision to exclude from compliance calculations any speed test results with values over 150% of the advertised speed for the location. Rather than trimming the data at the outset, as the Bureaus had required, the Commission directed the Bureaus “to study data collected from carriers’ pre-testing and testing and determine how best to implement a more sophisticated procedure using multiple statistical analyses to exclude outlying data points from the test results.” The Commission anticipated that the Bureaus would develop a procedure for USAC to implement for each carrier’s test results in each speed tier in each state or study area to flag a particular data point as an anomaly.

Penalties for Non-Compliance

The Penalties for non-compliance are severe. The Commission will use the testing data to determine the level of compliance for the carrier’s network. Therefore, not only do the penalties apply to the performance measurement requirement but also to the overall deployment obligations of a carrier. Thus, for a carrier that has deployed to 100% of its required locations by the end of the carrier’s build-out term, but has an overall performance compliance percentage of 90%, USAC will recovered a penalty from the carrier. In the above example, USAC, using the percentage of the carrier’s support equal to 1.89 times the average amount of support per location received in the state for that carrier over the term of support for the relevant performance non-compliance percentage (i.e., 10%), plus 10 percent of the carrier’s total relevant high-cost support over the support term for that state.

Another example would be if a carrier deploys to only 90% of the locations to which it is required to build, and of those locations, the performance compliance percentage is 90%. In this scenario, the carrier will be required to forfeit support equal to 1.89 times the average amount of support per location received in the state for that carrier over the term of support for both the 10% of locations lacking deployment and an additional 9% of locations (reflecting a non-compliance percentage of 10% for the 90% deployed locations), plus 10 percent of the carrier’s total relevant high-cost support over the support term for that state.

Remedies for Non-Compliance

The Commission also noted that carriers are permitted up to one year to address any shortcomings in their deployment obligations, including ensuring that their performance measurements are 100% in compliance, before these support reductions will take effect.

GVNW will continue to provide carriers with additional information regarding the performance testing requirement as the pre-testing and testing periods approach.

Please contact your GVNW Consultant or Steve Gatto (830.895.7226), sgatto@gvnw.com or Bill Favatella (719.594.5826), bfavatella@gvnw.com with any additional questions you may have about the Performance Measurement Testing requirements.