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FIBER SYSTEMS
David G. Rusin
President & CEO

December 7, 2009
Via Electronic Filing

Marlene H. Dortch
Office of the Secretary
Federal Communications Commission
445 12th • Street, S.W.
Washington, DC 20554

Re: WC Docket No. 09-214

Dear Secretary Dortch:

American Fiber Systems, Inc. ("AFS") submits the following comments in response to the
Commission's Public Notice dated November 25, 2009 in the above reference Docket.

AFS fully supports the request by the National Telecommunications and Information
Administration ("NTIA") to obtain from the Commission carrier-specific broadband, wireless and
interconnect VOIP services data filed semi-annually with the Commission via FCC Form 477. Such
data will be valuable to the NTIA in assisting their evaluation of challenges to BTOP funding
applications, with regard to whether a particular geographic area is ''un-served'' or "underserved".
Given the various methodologies employed by applicants in making such determinations, and more
importantly the reckless abandon with which incumbent carrie~ and service provide~ are filing
challenges based upon vague and unsubstantiated claims that the incumbent provides service in a given
area, AFS believes that the NTlA will be able to make a more infonned decision as to the validity of
incumbent challenges to BTOP applicants who are trying to fulfill the national priority of broadband
deployment to un-served and underserved parts of the country.

The concept that an incumbent carrier or existing service provider can, based upon an
unsupported claim of network footprint overlap, make vague, broad, over generalized allegations such
as the incumbent carrier or existing provider's network is "capable of delivering all or some significant
portion of the connectivity that the applicant proposes" and thereby defeat an applicant's project is
ludicrous and antithetical to the stated purpose of the BTOP program. For example, when deploying
broadband to und~ed areas some overlap with existing facilities is inevitable and necessary in
order to extend the geographic reach of the facilities. Further, the fact that a network is theoretically
"capable of delivering all or some significant portion of the connectivity that the applicant proposes" is
vastly different from whether an incumbent carrier or existing service provider is actually doing so in a

100 Meridian Centre, Suite 300· Rochester, New York 14618


Phone: (585) 78~-5801 • Fax.: (585) 785·5802
www.afsnetworlc.s.com
(Dortch, p. 2)

meaningful way so as to constitute a viable service offering in the real world. Additionally, the fact
that the applicant has no opportunity to review the existing service providers allegations (in particular
the data, if any, which supports the allegations) and have an opportunity to respond to the allegations
flies in the face of any sense offaimess, transparency or due process. Utilization of Form 477 data by
NTIA should serve to reduce the time needed to issue the fmal approvals for successful BTOP
applications.

However, the presence of Form 477 data should in no way exempt incumbent carriers and
existing service providers from having to independently provide complete and detailed evidence in
support of their challenges. Any incumbent carrier or existing service provider who challenges an
applicant's BTOP project should be required to prove by clear and convincing evidence the following:
(i) reported quarterly on a census block level the actual number of business and residential broadband
subscribers that is has, excluding any that are on a month-ta-month basis, as well as the percentage of
the population ofthe given census block that such subscriber base constitutes, (ii) reported quarterly on
a census block level, data that demonstrates that the incumbent carrier's or existing service provider's
actual committed information rate and network. latency for broadband subscribers is equal to its
advertised committed information rate and network. latency service level agreements, (iii) reported
quarterly, churn as compared to the prior 12 month period. The foregoing information should be filed
with the NTIA and the BTOP applicant which the incumbent carrier or existing provider is
challenging. Such information should be filed under a non-disclosure agreement. The BTOP
applicant should then have a period of thirty (30) days after receipt ofthe information to file a response
to the incumbent carrier's1existing service provider's challenge. Based upon the data provided by the
challenger, the response of the BTOP applicant and the data provided via Form 477, the NTIA should
decide within thirty (30) days of receipt of the applicant's response whether the applicant's proposed
service area(s) are in fact underserved or un-served. Requiring incumbent carriers and existing service
providers to file the above information will also provide the Commission with the ability to verifY the
accuracy the data filed by a challenger in their most recent Form 477.

In determining the validity of a challenge to a BTOP application, the NTlA should also
consider the track record of the challenger. Does the challenger operate an open access, non-
discriminatory network by leasing dark fiber facilities and capacity to any party, camer or enterprise at
competitive market pricing? If not, it should be presumed that the motive for the challenge is mere base
protectionism by the incumbent and so the challenge should be dismissed as illegitimate.

VerytrWfU
UC;<X
David G. Rusin
President & CEO

xc: Jeremy Miller, Industry Analysis and Technology Division

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