Another source Staff may rely on to reduce the risk of using public funds to overbuild existing infrastructure is the challenge process. If an application proposing to build middlemile infrastructure to offer lastmile service is not challenged, that is a strong indication that it should go forward. If it meets the other criteria under the Ministerial Review process the Commission adopts with this decision, the application should still be approved under Ministerial Review. The more complicated scenario is if an application receives a challenge and the applicant and challenger are unable to agree to terms for wholesale services. For example, the challenger offers backhaul services, but not at the prices, terms or conditions the applicant desires. We have heard of allegations that a provider challenged an application and then declined to offer any services. Staff has also encountered applicants who harbor unreasonable expectations, including access to infrastructure at little or no cost. Resolving situations like these are discretionary decisions and Staff will need to draft a resolution for Commission approval, if it intends to recommend the Commission approve an application. At this point it is not clear based on the record what “reasonable” prices, or terms and conditions are, so the Commission instructs Staff to approach these challenges as they arise on an individual basis until it has a sufficient record to draft a resolution to recommend modifying these rules. That said, we want to make clear to providers simply attempting to block reasonable and otherwise eligible CASF Infrastructure applications without attempting to improve service in the communities that are part of the proposed project areas will not be viewed favorably. In a situation where a provider is unwilling to offer service, or only offers service at an exorbitant price, it seems appropriate to find that the proposed middlemile build is indispensable to the project.
Another source Staff may rely on to reduce the risk of using public funds to overbuild existing infrastructure is the challenge process. If an application proposing to build middlemile infrastructure to offer lastmile service is not challenged, that is a strong indication that it should go forward. If it meets the other criteria under the Ministerial Review process the Commission adopts with this decision, the application should still be approved under Ministerial Review. The more complicated scenario is if an application receives a challenge and the applicant and challenger are unable to agree to terms for wholesale services. For example, the challenger offers backhaul services, but not at the prices, terms or conditions the applicant desires. We have heard of allegations that a provider challenged an application and then declined to offer any services. Staff has also encountered applicants who harbor unreasonable expectations, including access to infrastructure at little or no cost. Resolving situations like these are discretionary decisions and Staff will need to draft a resolution for Commission approval, if it intends to recommend the Commission approve an application. At this point it is not clear based on the record what “reasonable” prices, or terms and conditions are, so the Commission instructs Staff to approach these challenges as they arise on an individual basis until it has a sufficient record to draft a resolution to recommend modifying these rules. That said, we want to make clear to providers simply attempting to block reasonable and otherwise eligible CASF Infrastructure applications without attempting to improve service in the communities that are part of the proposed project areas will not be viewed favorably. In a situation where a provider is unwilling to offer service, or only offers service at an exorbitant price, it seems appropriate to find that the proposed middlemile build is indispensable to the project.
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