Technology Transitions, Policies and Rules Governing Retirement of Copper Loops by Incumbent Local Exchange Carriers and Special Access for Price Cap Local Exchange Carriers, 63321-63373 [2015-24505]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 80, Number 201 (Monday, October 19, 2015)]
[Rules and Regulations]
[Pages 63321-63373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-24505]



[[Page 63321]]

Vol. 80

Monday,

No. 201

October 19, 2015

Part III





Federal Communications Commission





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47 CFR Parts 51 and 63





Technology Transitions, Policies and Rules Governing Retirement of 
Copper Loops by Incumbent Local Exchange Carriers and Special Access 
for Price Cap Local Exchange Carriers; Final Rule

Federal Register / Vol. 80 , No. 201 / Monday, October 19, 2015 / 
Rules and Regulations

[[Page 63322]]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 51 and 63

[GN Docket No. 13-5, RM-11358; WC Docket No. 05-25, RM-10593; FCC 15-
97]


Technology Transitions, Policies and Rules Governing Retirement 
of Copper Loops by Incumbent Local Exchange Carriers and Special Access 
for Price Cap Local Exchange Carriers

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: The Commission initiated this rulemaking in January 2015 to 
help guide and accelerate the technological revolutions that are 
underway involving the transitions from networks based on TDM circuit-
switched voice services running on copper loops to all-IP multi-media 
networks using copper, co-axial cable, wireless, and fiber as physical 
infrastructure. This rulemaking and order on reconsideration is only 
one of a series of Commission actions to protect core values and ensure 
the success of these technology transitions. In this item, we take 
steps to ensure that competition continues to thrive and to protect 
consumers during transitions. These steps will help to ensure that the 
technology transitions continue to succeed.

DATES: Effective November 18, 2015, except for 47 CFR 51.325(a)(4) and 
(e), 51.332, and 51.333(b) and (c), which contain information 
collection requirements that have not been approved by OMB. The Federal 
Communications Commission will publish a document in the Federal 
Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: Michele Levy Berlove, Wireline 
Competition Bureau, Competition Policy Division, (202) 418-1477, or 
send an email to Michele.Berlove@fcc.gov.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order and Order on Reconsideration in GN Docket No. 13-5, RM-11358, 
and WC Docket No. 05-25, RM-10593, FCC 15-97, adopted August 6, 2015 
and released August 7, 2015. The full text of this document is 
available for public inspection during regular business hours in the 
FCC Reference Information Center, Portals II, 445 12th Street SW., Room 
CY-A257, Washington, DC 20554. It is available on the Commission's Web 
site at https://www.fcc.gov.

Synopsis

I. Introduction

    1. Communications networks are rapidly transitioning away from the 
historic provision of time-division multiplexed (TDM) services running 
on copper to new, all-Internet Protocol (IP) multimedia networks using 
copper, co-axial cable, wireless, and fiber as physical infrastructure. 
Our actions today further the technology transitions underway in our 
Nation's fixed communications networks that offer the prospect of 
innovative and improved services to consumers and businesses alike. The 
core goals of the January 2014 Technology Transitions Order frame our 
approach here. In the Technology Transitions Order, we emphasized the 
importance of speeding market-driven technological transitions and 
innovations while preserving the core statutory values as codified by 
Congress: Competition, consumer protection, universal service, and 
public safety. Furthering these core values will accelerate customer 
adoption of technology transitions. Today, we take the next step in 
advancing longstanding competition and consumer protection policies on 
a technologically-neutral basis in order to ensure that the deployment 
of innovative and improved communications services can continue without 
delay.
    2. Industry is investing aggressively in modern telecommunications 
networks and services. Overall, according to data supplied by USTelecom 
and AT&T, capital expenditures by broadband providers topped $75 
billion in 2013 and continue to increase. AT&T recently announced that 
by the year 2020, 75 percent of its network will be controlled by 
software. To do this, AT&T is undergoing a massive effort to train 
about 130,000 of its employees on software-defined networking 
architecture and protocols. AT&T has also expanded its wireline IP 
broadband network to 57 million customer locations, as well as extended 
fiber to 725,000 business locations. Moreover, Verizon passes more than 
19.8 million premises with its all-fiber network--the largest such 
network in the country--and it projects that soon about 70 percent of 
the premises in its landline territory will have access to all-fiber 
facilities. Verizon too has announced an SDN-based strategy ``to 
introduce new operational efficiencies and allow for the enablement of 
rapid and flexible service delivery to Verizon's customers.'' And 
CenturyLink has announced the launch of 1 Gbps broadband service to 16 
cities. According to recent reports, CenturyLink's national fiber 
network upgrade has expanded availability of CenturyLink's gigabit 
broadband services to nearly 490,000 business locations. These are just 
a few of many examples in which industry is investing heavily to bring 
the benefits of new networks and services to customers of all sizes.
    3. We recognize that the success of the technology transitions is 
dependent, among other things, on clear and certain direction from the 
Commission that preserves the historic values that Congress has 
incorporated in the Communications Act of 1934, as amended (the Act). 
In the November 2014 Notice of Proposed Rulemaking (NPRM), 80 FR 450, 
we sought comment on limited oversight that would encourage transitions 
that could otherwise be delayed if a portion of consumers were left 
behind or competition were allowed to diminish--recognizing that the 
transitions that are underway are organic processes without a single 
starting or stopping point. Building on that NPRM, in this item we 
support the transitions by adopting limited and targeted regulation to 
preserve competition and to protect consumers, especially those in 
vulnerable populations who have not yet voluntarily migrated from plain 
old telephone service (POTS) and other legacy services. In taking these 
steps, we seek to avoid the need for future regulation and dispute 
resolution that could cause delays down the road. Carriers involved in 
the historic transitions have made clear their intention to protect 
consumers and preserve a competitive marketplace going forward, and the 
pro-transition rules we adopt today are consistent with those mutually 
shared goals.
    4. Building on our proposals in the NPRM, we adopt clear ``rules of 
the road'' to ensure that all consumers will enjoy the benefits of two 
distinct but related kinds of technology transitions: (1) Changes in 
network facilities, and in particular, retirement of copper facilities; 
and (2) changes that involve the discontinuance, impairment, or 
reduction of legacy services, irrespective of the network facility used 
to deliver those services. We summarize each of the actions that we 
take today below.
    5. Informing and Protecting Consumers as Networks and Services 
Change. We take the following actions to ensure that consumers are able 
to make informed choices and that new retail services meet consumers' 
fundamental needs:
     Copper Retirement: We believe that the best balance is 
struck when consumers are informed, technological

[[Page 63323]]

progress is fully incented, and current networks are maintained while 
they are in use. To that end, we reaffirm our decision not to create an 
approval requirement for retirement of legacy facilities so long as the 
change of technology does not discontinue, reduce, or impair the 
services provided--ensuring that incumbent local exchange carriers 
(LECs) can continue to transition to an all-fiber environment. However, 
because our current network change rules do not take account of the 
needs of consumers for accurate information about the consequences of 
retirements of copper facilities, we provide simply that incumbent 
carriers (i.e., incumbent LECs) must provide notice of planned copper 
retirements to retail customers when such retirements remove copper to 
the customers' premises, along with particular consumer protection 
measures. We define ``copper retirement'' so that incumbent LECs know 
when these responsibilities are triggered. The definition that we adopt 
will prevent copper facilities from being ``de facto retired'' without 
adequate notice to affected persons.
     Service Discontinuance: Congress has mandated, per Section 
214 of the Act, that carriers must obtain our approval before they 
discontinue, reduce, or impair service to a community or part of a 
community. This discontinuance process allows the Commission to satisfy 
its obligation under the Act to protect the public interest and to 
minimize harm to consumers. For convenience, in certain circumstances 
this item uses ``discontinue'' (or ``discontinuance,'' etc.) as a 
shorthand that encompasses the statutory terms ``discontinue, reduce, 
or impair,'' unless the context indicates otherwise.
    6. Safeguarding the Public Interest by Preserving the Benefits of 
Competition. Incumbent carriers compete with competitive carriers 
(i.e., competitive LECs) to provide communications services to 
businesses, schools, healthcare facilities, government entities, and 
other organizations of all shapes and sizes. The competitive carriers 
often rely on a combination of their own facilities and the purchase of 
last-mile facilities and services from the incumbent carriers, such as 
unbundled network elements and special access services to provide 
business services. The organizations these carriers serve benefit from 
this competition in their purchase of communications services, which 
helps them serve their customers better and more efficiently. Within 
the subset of non-residential multi-location expenditures by companies 
with at least 250 employees, GeoResults estimated that in the third 
quarter of 2014 competitive LECs accounted for 32% of expenditures and 
non-LECs accounted for only 5% of expenditures. Through today's action, 
we are adopting policies to ensure competition thrives as our networks 
continue to transition. Specifically, we implement revisions to our 
copper retirement rules and our service discontinuance rules to ensure 
that: (i) Competitive carriers are adequately informed about technology 
changes that impact them; (ii) the interests of end users impacted by 
upstream changes in service by providers of wholesale inputs are 
adequately recognized as important to our service discontinuance 
process; and (iii) competitive carriers do not lose the access that 
they need to continue to provide the benefits of competition.
     We update the process by which incumbent LECs notify 
interconnecting entities of planned copper retirements. Among other 
things, we require incumbent LECs to provide at least six months' 
advance notice of proposed copper retirements to interconnecting 
carriers in order to provide such carriers adequate time to prepare 
their networks for the changes.
     To fulfill our statutory obligation to ensure that changes 
to telecommunications services that negatively affect the public occur 
with proper oversight, we clarify that a carrier must obtain Commission 
approval before discontinuing, reducing, or impairing a service used as 
a wholesale input, but only when the carrier's actions will 
discontinue, reduce, or impair service to end users, including a 
carrier-customer's retail end users. We emphasize that carriers must 
consider the impact of their actions on end user customers, including 
the end users of carrier-customers.
     The Commission has long intended to conduct a 
comprehensive evaluation of dedicated high-capacity connections used 
daily and intensively by businesses and institutions to transmit their 
voice and data traffic, known traditionally as ``special access.'' That 
evaluation will enable us to address critical long-term questions about 
the state of competition for business data connections and the role of 
regulation in facilitating competitive markets. Today, we adopt an 
interim rule to preserve competitive access while the special access 
proceeding remains pending and to maintain incentives for all parties 
to rapidly transition to IP. We conclude that to receive authority to 
discontinue, reduce, or impair a legacy TDM-based service that is used 
as a wholesale input by competitive providers, an incumbent LEC must as 
a condition to obtaining discontinuance authority commit to providing 
competitive carriers

II. Report and Order

A. Background

    7. The Commission initiated this rulemaking in November 2014 to 
help guide and accelerate the technological revolutions that are 
underway involving the transitions from networks based on TDM circuit-
switched voice services running on copper loops to all-IP multi-media 
networks using copper, co-axial cable, wireless, and fiber as physical 
infrastructure. This rulemaking is only one of a series of Commission 
actions to protect core values and ensure the success of these 
technology transitions. The Commission also is undertaking a 
comprehensive evaluation of the correct policies for the long-run 
concerning access to a key form of competitive inputs and technology 
change--special access. The Commission will use the data and public 
comment addressing the data to develop the long-term policies that will 
supersede the reasonably comparable wholesale access requirements 
adopted today. However, we recognize that for them to succeed, we need 
to ensure competition continues to thrive and we protect consumers, 
especially those in vulnerable populations, who rely on POTS and other 
legacy services.
    8. Recent data indicates that 30 percent of all residential 
customers choose IP-based voice services from cable, fiber, and other 
providers as alternatives to legacy voice services. Moreover, 44 
percent of households were ``wireless-only'' during January-June of 
2014. The growth of ``wireless-only'' homes will necessitate more 
backhaul services than ever before, and these services are increasingly 
IP-based. Overall, almost 75 percent of U.S. residential customers 
(approximately 88 million households) no longer receive telephone 
service over traditional copper facilities. As consumer demand for 
faster service speeds continues, wireless providers and their customers 
have benefited from the transition to Ethernet, which is more easily 
scalable to increasing user demands compared to copper; and, by the end 
of 2014, certain incumbent LECs have dropped between 30 to 60 percent 
of their copper-based DS1 special access circuits, replacing these 
special access circuits with IP offerings. Similar change is occurring 
in the supply of mass-market services. Moreover, advancements in 
technology and interconnection have changed the relationship between 
broadband Internet access and Voice over Internet

[[Page 63324]]

Protocol (VoIP) applications such that users indiscriminately 
communicate between North American Numbering Plan (NANP) and IP 
endpoints on the public switched network.
    9. At the same time, competitive carriers today continue to rely on 
incumbent LEC TDM-based DS1 and DS3 special access services to serve a 
large number of utility, residential, and enterprise customer locations 
throughout the United States. Commenters assert that many areas across 
the country have few viable alternatives to currently-available 
incumbent LEC copper loop or TDM-based wholesale inputs. Competitive 
LECs have submitted evidence in this record and in other proceedings 
that, in such areas, the prices incumbent LECs charge for these 
replacement wholesale inputs (e.g., for 2 Mbps IP service) are 
significantly higher than a comparable service using a TDM-based 
service subject to a dominant carrier rate regulation.
    10. The Commission received comments from over 65 parties in 
response to the NPRM, including incumbent and competitive carriers, and 
industry organizations representing wireless, cable, rural and 
communications equipment companies as well as consumer advocates, state 
public service commissions, and local government entities. And the 
National Telecommunications and Information Administration weighed in 
on behalf of the federal government, noting that ``U.S. government 
departments and agencies . . . are among the largest customers of U.S. 
telecommunication service providers'' and that the vagaries of the 
budgeting, appropriations, and procurement processes make it difficult 
for the government to accommodate transitions quickly. It thus noted 
the need for ``careful planning while supporting continued growth and 
innovation in our communications networks.'' These parties provided a 
wide range of arguments and legal analyses as well as relevant data and 
information on the important issues raised in the NPRM to help the 
Commission make informed findings and final rules. Despite their 
varying positions, all the parties recognize the significance of the 
technology transitions and the need to protect the enduring values of 
our communications network.

B. Discussion

1. Revision of Copper Retirement Processes To Facilitate Technology 
Transitions by Promoting Competition and Protecting Consumers
    11. Today, we significantly update our copper retirement rules for 
the first time in over a decade to address the increasing pace of 
copper retirement and its implications for consumers and competition. 
We do so to facilitate the smoothest possible transition of the 
Nation's legacy communications networks to newer technologies while 
ensuring this transition happens free from the obstacles that might 
arise were this transition not handled responsibly. We believe the 
updated rules that we adopt today will benefit the entire ecosystem of 
industry and consumers by ensuring that everyone has the information 
they need to adapt to an evolving communications environment. 
Interconnecting entities will be able to accommodate the planned 
network changes without disruption of service to their customers. 
Competitive opportunities will be ensured, resulting in greater 
consumer choice. Government departments and agencies will not be left 
unable to respond to changes in the networks over which their vital 
communications services are provided. Customer confusion regarding the 
impact of planned copper retirements, and possible complaints arising 
from such confusion, will be minimized. And incumbent LECs will be able 
to move forward with highly beneficial planned network changes with 
greater comfort and certainty. Verizon, for instance, estimates that 
the cost of maintaining parallel copper facilities and the consumer 
welfare benefits from its existing fiber deployment each run in the 
hundreds of millions of dollars.
    12. The Commission issued the current rules governing copper 
retirement in 2003 in the Triennial Review Order. At that time, fiber 
to the home deployment was in its infancy. In the intervening twelve 
years, however, incumbent LECs have built extensive fiber networks, 
with fiber becoming the preferred choice for new greenfield deployments 
and in some instances deployed in parallel to existing copper networks. 
And in the last few years, the pace of copper retirement has 
accelerated. This rapid pace of formal copper retirements, along with 
the deterioration of copper networks that have not been formally 
retired, has led to requests from both competitive LECs and public 
advocates for changes to the Commission's copper retirement rules to 
protect competition and consumers. We reaffirm that ``the increasing 
frequency and scope of copper retirements call into question key 
assumptions that underpinned our existing copper retirement rules.'' 
Indeed, today we find that the pace and impact of copper retirement 
necessitates changes to ensure that our rules governing copper 
retirement serve the public interest. Sixteen copper retirement notices 
have been filed with the Commission since November 2014. We thus 
conclude, as we tentatively concluded in the NPRM, that the foreseeable 
and increasing impact that copper retirement is having on competition 
and consumers warrants revisions to our network change disclosure rules 
to allow for greater transparency, opportunities for participation, and 
consumer protection. By retaining a notice-based process that promotes 
certainty for consumers, interconnecting carriers, and incumbent LECs, 
our actions advance the transition to fiber while serving our key pro-
competition and pro-consumer goals.
    13. We clarify at the outset that the revisions we adopt today to 
the network change disclosure rules are not intended to change the 
nature of the process from one based on notice to one based on 
approval. The current network change disclosure process applies to 
situations in which an incumbent LEC makes a change in its network 
facilities, such as when it replaces copper facilities with fiber. If 
this change in facilities does not result in a discontinuance, 
reduction, or impairment of service, then the carrier need not file an 
application under Section 214(a) seeking Commission authorization for 
the planned network change. Rather, it must only provide notice in 
compliance with the Commission's network change disclosure rules. 
However, some changes in network facilities can result in a 
discontinuance, reduction, or impairment of service for which 
Commission authorization is needed. For instance, in one prominent 
example, Verizon filed an application under Section 214(a) when it 
sought to replace the copper network serving Fire Island that was 
damaged by Superstorm Sandy with a wireless network over which it would 
provide its VoiceLink wireless service. We expect all carriers to 
consider carefully whether a proposed copper retirement will be 
accompanied by or be the cause of a discontinuance, reduction, or 
impairment of service provided over that copper such that they must 
file a discontinuance application pursuant to Section 63.71 of our 
rules. If the answer to that question is no, then the carrier need only 
comply with the Commission's network change disclosure process as 
revised herein.

[[Page 63325]]

(a) Copper Retirement Notice Process
(i) Expansion of Notice Requirements To Promote Competition
    14. Background. Certain commenters express fear that incumbent LECs 
will use technology transitions as an opportunity to thwart competition 
from competitive LECs and others by erecting market barriers. Thus, 
competitive LECs and state commissions, as well as other commenters, 
largely support the concept of revising the network change disclosure 
rules to provide for more robust notice to competitors of planned 
copper retirements. On February 26, 2015, the California PUC filed a 
motion for acceptance of its late-filed comments because it was first 
able to consider the NPRM at its public meeting on February 5, 2015, 
and PUC staff was unable to provide a recommendation prior to that 
date. No oppositions to this motion were filed. We grant the California 
PUC's motion and accept its comments, which we cite herein without 
reference to the date filed. They believe that the existing network 
change disclosure rules ``are not sufficient to enable competitive LECs 
to prepare for an ILEC's broad-scale transition to an all-IP network.'' 
Incumbent LECs, on the other hand, argue that the Commission's network 
change disclosure rules are sufficient and that there is no need for 
the revisions proposed in the NPRM. They assert that the proposed 
revised requirements would impose onerous and unnecessary burdens on 
incumbent LECs. Cincinnati Bell asserts that the Commission should not 
require direct notice to interconnecting carriers because of the 
``scores of interconnection agreements with CLECs, many of whom never 
became active or have only limited interconnection activity'' and 
because ``[m]any CLECs have been subject to various mergers and 
acquisitions but have failed to maintain current contact information.'' 
And many of the requirements proposed by competitive LEC commenters, 
they argue, go beyond the concept of adequate notice and would deter 
additional investment in fiber deployment. We note, however, that 
Windstream, which is both an incumbent LEC and a competitive LEC, has 
stated that it ``believes it could feasibly implement [the proposed] 
requirements, and they would not cause disruption to its copper 
retirement processes.''
    15. Discussion. After reviewing the record before us, we conclude 
that the Commission's network change disclosure rules should be updated 
in light of marketplace developments to address the needs of 
competitive carriers for more robust notice of planned copper 
retirements. To make our rules sufficient for this purpose, we revise 
them to require incumbent LECs planning copper retirements to include 
in their network change disclosures a description of any changes in 
prices, terms, or conditions that will accompany the planned changes. 
In addition, as explained in detail below, we establish a process in 
which incumbent LECs must provide direct notice to interconnecting 
entities at least 180 days prior to the planned implementation date, 
except when the facilities to be retired are no longer being used to 
serve customers in the affected service area. The requirements that we 
adopt reflect the revisions proposed in the NPRM, subject to certain 
modifications discussed further below.
    16. We conclude that receipt of the additional information and the 
extended notice period we adopt today will allow interconnecting 
entities to work more closely with their customers to ensure minimal 
disruption to service as a result of any planned copper retirements. 
Contrary to some commenters' assertions, the record in this proceeding 
contains significant evidence that our existing rules are insufficient 
to ensure adequate notice to interconnecting carriers. We wish to avoid 
situations such as the one recounted by XO, where it received notice 
that one of its customers--a group of nursing homes--would be losing 
service the next day as a result of glitches in the copper retirement 
process (a result XO narrowly managed to avoid). Although some 
commenters claim that our rule changes will discourage copper 
retirements, we find that retaining a time-limited notice-based process 
ensures that our rules strike a sensible and fair balance between 
meeting the needs of interconnecting carriers and allowing incumbent 
LECs to manage their networks.
    17. Also contrary to some commenters' assertions, we find that the 
revised notice requirements do not serve to conflate the Section 
251(c)(5) network change disclosure process and Section 214(a) 
discontinuance process. Other commenters, however, are concerned that 
incumbent LECs are themselves ``blur[ring] the distinction between mere 
retirement of copper facilities (while the carrier continues to offer 
the same service(s) using other facilities), on the one hand, and the 
discontinuance, reduction, or impairment of service on the other.'' 
Consistent with the proposal in the NPRM, we retain a notice-based 
regime for copper retirement, in contrast to the approval-based process 
for a Section 214(a) discontinuance of service. The Rural Broadband 
Policy Group asserts that we should not permit automatic enrollment in 
or switching of services unless explicitly approved by the customer. We 
believe this concern is obviated by the fact that we are retaining the 
notice-based nature of the network change disclosure process. Customers 
will have an opportunity to obtain service from other providers if they 
determine based upon a notice of a planned copper retirement that they 
no longer desire to receive service through their current provider. We 
realize certain commenters are concerned that a planned copper 
retirement might amount to a discontinuance of service. As discussed 
above, any loss of service as a result of a copper retirement may 
constitute a discontinuance, reduction, or impairment of service for 
which a Section 214(a) application is necessary. The modifications we 
adopt today do not convert the network change disclosure process. 
Customers will have an opportunity to obtain service from other 
providers if they determine based upon a notice of a planned copper 
retirement that they no longer desire to receive service through their 
current provider. We realize certain commenters are concerned that a 
planned copper retirement might amount to a discontinuance of service. 
As discussed above, any loss of service as a result of a copper 
retirement may constitute a discontinuance, reduction, or impairment of 
service for which a Section 214(a) application is necessary.
    18. Scope and Form. In the NPRM, we proposed requiring that 
incumbent LECs provide public notice of copper retirement by the means 
currently permitted by Section 51.329(a) of the Commission's rules, as 
well as requiring them to directly provide notice of copper retirement 
to ``each information service provider and telecommunications service 
provider that directly interconnects with the incumbent LEC's 
network.'' Certain commenters support the proposal contained in the 
NPRM, while other commenters seek to expand the scope further to also 
require notice to additional entities. For example, one group of 
commenters urged the Commission to extend the notice requirements to 
competitive LECs that purchase UNEs and special access. We decline to 
adopt this proposal. First, by broadening copper retirement notice to 
encompass ``each entity'' that directly interconnects with the 
incumbent LEC's network, we ensure notice to a broad range of entities. 
Second, if after a

[[Page 63326]]

change from copper to fiber facilities UNEs will no longer be 
available, that is an issue arising under Section 251(c)(3) of the Act, 
pertaining to unbundled access, rather than Section 251(c)(5), which 
applies to notice of change in facilities. With respect to special 
access, that is a service issue rather than a facilities issue. As 
such, any change in the availability may fall under the purview of our 
Section 214(a) authority, as discussed infra in Section II.B.2.
    19. Based on the record before us, we conclude that we should adopt 
these proposed requirements, modified to require notice to ``each 
entity'' within the affected service area that directly interconnects 
with the incumbent LEC's network. We find that doing so constitutes 
``reasonable public notice'' under Section 251(c)(5) of the Act because 
it will ensure that all entities potentially affected by a planned 
copper retirement, be they telephone exchange service providers, 
information service providers, or other types of providers that may or 
may not yet have been classified by the Commission, receive the 
information necessary to allow them to accommodate the copper 
retirement with minimal impact on their end user customers. We do not, 
however, similarly expand the pool of entities to whom incumbent LECs 
must provide direct notice of network changes outside of the copper 
retirement context. The record does not contain any evidence sufficient 
to justify such an expansion.
    20. We are not persuaded by the arguments of incumbent LEC 
commenters that this requirement ``would impose onerous and unnecessary 
administrative burdens.'' AT&T argues that this requirement, in 
conjunction with expansion of the copper retirement notice requirement 
to encompass retirement of copper feeder plant, would necessitate 
providing direct notice to potentially hundreds of competitive LECs 
that do not have any facilities implicated by the planned network 
change. Because under existing requirements incumbent LECs must notify 
potentially large numbers of directly interconnected telephone exchange 
service providers as part of the copper retirement process, we do not 
find that argument supports the claim that the revisions we adopt today 
are unreasonable. Under the predecessor rules to those we adopt today, 
copper retirements were already subject to the ``short term notice 
provisions'' set forth in Section 51.333(a). Unless otherwise specified 
or dictated by context, citations in this Order to specific sections of 
the Commission's rules governing network change disclosures are to the 
version of those rules as they exist prior to the effective date of the 
rules adopted herein. Under Section 51.333(a), which applies ``[i]f an 
incumbent LEC wishes to provide less than six months' notice of planned 
network changes,'' the incumbent LEC must file with the Commission a 
certificate of service that includes a statement that, at least five 
business days in advance of its filing with the Commission, the 
incumbent LEC served a copy of its public notice upon each telephone 
exchange service provider that directly interconnects with the 
incumbent LEC's network; and the name and address of each such 
telephone exchange service provider upon which the notice was served. 
Such certificates of service reflect that incumbent LECs have been 
obligated to provide notice to large numbers of interconnecting 
carriers.
    21. Incumbent LECs have not provided sufficient detail to establish 
that providing the direct notice described in those certificates of 
service was burdensome or specifically how expanding the pool of 
recipients as proposed in the NPRM would impose a new ``onerous and 
unnecessary administrative burden'' on them. Rather, they rely solely 
on conclusory allegations. As a result, we conclude that expanding this 
existing requirement to include all entities that directly interconnect 
with the incumbent LEC's network within the affected service area would 
not impose an appreciably greater burden on incumbent LECs. We also 
find this revision to our rules reasonable because it will ensure that 
all competitive LECs and other interconnecting entities that could be 
affected by the planned copper retirement receive information that 
would assist them in preparing to accommodate the planned network 
change. We require the method of transmission of the notice to match 
existing requirements for notice to interconnecting telephone exchange 
service providers, as the record does not indicate that this existing 
requirement has been insufficient. This approach provides as much 
flexibility as possible to incumbent LECs while ensuring that the 
notice will serve its function.
    22. The rule that we adopt today requires notice to the Commission 
and omits the option to provide written public notice through industry 
fora, industry publications, or the carrier's publicly accessible 
Internet site. This is merely a technical modification of our proposal, 
under which some form of notification to the Commission would have been 
required in all prior cases and publication-based notice would have 
been optional and thus not required. Therefore, this change streamlines 
our rules and emphasizes that notice to the Commission initiates the 
copper retirement process. We find this change warranted to ensure that 
the Commission is notified promptly of all planned copper retirements 
and to streamline the rule. We nonetheless encourage incumbent LECs to 
provide notice through industry fora, industry publications, and the 
carrier's publicly accessible Internet site as a good practice.
    23. Content of Notice. In the NPRM, we proposed requiring incumbent 
LECs to include in their public notices of copper retirement, and thus 
their notices to interconnecting carriers, the information currently 
required by Section 51.327(a) of our rules, as well as ``a description 
of any changes in prices, terms, or conditions that will accompany the 
planned changes.'' Based on the record before us, we conclude that it 
is appropriate to adopt these proposed requirements. We find that doing 
so is consistent with Section 251(c)(5)'s mandate that incumbent LECs 
provide ``information necessary for the transmission and routing of 
services using that local exchange carrier's facilities or networks, as 
well as of any other changes that would affect the interoperability of 
those facilities and networks'' because it will ensure that 
interconnecting entities, including competitive LECs, are fully 
informed about the impact that copper retirements will have on their 
businesses.
    24. We are unpersuaded by incumbent LEC commenters' assertions that 
the proposed expanded copper retirement notice requirements would 
impose an undue burden on them because it is impossible to determine 
how a planned change can be expected to impact various interconnecting 
entities. Section 51.327(a) already requires that incumbent LEC network 
change public notices include ``changes planned'' and ``the reasonably 
foreseeable impact of the planned changes.'' We conclude that the 
proposed expanded content requirement, which is limited to a 
description of any changes in prices, terms, or conditions that will 
accompany the planned retirement, is a narrow and targeted extension of 
the existing requirement to provide notice of the ``reasonably 
foreseeable impact of the planned changes'' already required by Section 
51.327(a)(6) of our rules. We address commenter concerns regarding our 
legal authority to require this information in copper retirement 
notices infra in Section II.B.1.a(vi). We

[[Page 63327]]

do not believe providing this additional information will present an 
undue burden on incumbent LECs, and any such additional burden will be 
outweighed by the needs for an interconnecting entity to have 
sufficient information to adjust its network to accommodate planned 
copper retirements, which could require costly and disruptive changes 
to the interconnecting carrier's network simply to allow it to continue 
serving its end user customers. Indeed, the Commission rejected this 
very argument when it adopted the network change disclosure rules.
    25. We decline, however, to require that the descriptions of the 
potential impact of the planned changes be specific to each 
interconnecting carrier to whom an incumbent LEC must give notice, as 
requested by the Competitive Carriers Association. We conclude that 
such a requirement would impose an unreasonable burden on incumbent 
LECs. We also decline to require, as suggested by Windstream, that 
copper retirement notices include information regarding impacted 
circuits and wholesale alternatives. Section 51.327(a) already requires 
that notices of planned network changes include references to technical 
specifications, protocols, and standards regarding transmission, 
signaling, routing, and facility assignment as well as references to 
technical standards that would be applicable to any new technologies or 
equipment, or that may otherwise affect interconnection. And as 
discussed below, the rule we adopt today requires that incumbent LECs 
work in good faith with interconnecting entities to provide information 
necessary to assist them in accommodating planned copper retirements 
without disruption of service to their customers. We conclude that 
these requirements, included in proposed new Section 51.332, already 
ensure that enough information will be provided to address Windstream's 
concerns and ensure sufficient protection to interconnecting carriers. 
We further conclude that such requirements will adequately address the 
concerns raised by Cincinnati Bell that incumbent LECs cannot ``know 
what type of alternative arrangements might suit any impacted 
carriers.''
    26. We conclude that the content requirements we adopt today 
capture the needs of competitive providers for information that allows 
them to plan for and accommodate the planned network change while 
providing incumbent LECs the flexibility to provide that information in 
the form best suited to the particulars of their situation. We 
therefore require only that copper retirement notices include the 
information set forth in new Section 51.332(c). We decline to adopt a 
particular required format for copper retirement notices. We are not 
persuaded that the Commission's rules should mandate a particular 
format for copper retirement notices. Rather, we believe that a 
specified format could prove problematic. As noted by the California 
PUC, ``a uniform format may not cover all aspects of each provider's 
copper retirement plans. The FCC should require that all necessary 
components of the incumbent LEC's planned retirement be contained in 
any notice, but also allow each provider to include additional 
information about options available to customers.''
    27. Notice Period. In the NPRM, we sought comment on whether the 
90-day minimum notice period for copper retirements currently required 
by our rules is sufficient or whether it should be extended. Verizon 
asserts that if an incumbent LEC gives notice more than six months in 
advance of a planned implementation, there is no justification for 
requiring it to comply with the more burdensome short-term notice 
rules. However, the Commission's short-term notice rules apply to 
planned copper retirements, and provide that ``under no circumstances 
may an incumbent LEC provide less than 90 days' notice of such a 
change.'' In response, commenters propose that if we replace the 
existing time period, we adopt either six months, one year, or an 
unspecified amount of time. Commenters proposed a variety of time 
periods for notice, ranging from the existing ninety days, to 180 days, 
to one year, to an unspecified amount of time as is provided for in 
Section 68.110(b) of the Commission's rules. Based on the record in 
this proceeding, we conclude that 180 days' advance notice of copper 
retirements is an appropriate time frame. We find that the ninety-days' 
notice of planned copper retirements currently provided for by the 
Commission's network change disclosure rules is insufficient. Most 
competitive LECs provide service to business customers pursuant to 
multi-year contracts. And competitive LECs assert that a ninety-day 
notice period ``may not provide competitive carriers with sufficient 
lead time to make the upgrades or reconfigurations necessary to 
complete a seamless transition to IP-based service, or to make 
alternative arrangements.'' The record reflects numerous instances in 
which competitors and their customers have suffered significantly due 
to the short notice period. Although current rules allow for the 
possibility for interconnecting carriers to object and attempt to 
extend the retirement to six months (i.e., approximately 180 days), 
this procedure is rarely used, likely because of the short time to file 
and the fact that objections are deemed denied absent Commission 
action. Indeed, at least one competitive LEC asserts that shortcomings 
in the incumbent LEC's public notice precluded any meaningful 
opportunity to object within the permitted time period.
    28. We conclude that a notice period of at least 180 days (i.e., 
approximately six months) strikes an appropriate balance between the 
planning needs of interconnecting carriers and their customers and the 
needs of incumbent LECs to be able to move forward in a timely fashion 
with their business plans. The period of time that we adopt is 
approximately the maximum time period that had been available in 
response to a successful objection previously. We conclude a notice 
period of this length will not impose an undue burden on incumbent 
LECs, who must plan their deployments over extended periods of time. 
Indeed, at least one incumbent LEC has acknowledged that it has 
provided notice to customers of a planned fiber-to-the-premises 
overbuild deployment six months prior to deployment. Regardless, other 
incumbent LEC commenters contend that we should not extend the ninety-
day notice period in the existing rules. And we find that any increased 
burden on incumbent LECs is outweighed by the need to ensure that 
interconnecting carriers receive sufficient notice to allow them to 
accommodate the transition without disruption of service to their 
customers, which can include enterprise and government customers whose 
communications needs and budgeting concerns require more than 90 days' 
notice. To ensure at least 180 days of notice, we require notice to 
interconnected entities to be provided no later than the same date on 
which the incumbent LEC provides notice of the retirement to the 
Commission. After the Commission receives notice of the retirement, it 
will issue a public notice of the retirement, starting the 180-day 
``countdown'' such that the copper retirement may go forward under our 
rules. This use of Commission public notice to trigger the 
``countdown'' matches the predecessor process, matches our proposal in 
the NPRM, and helps to further ensure that the public is informed about 
copper retirements. The NPRM sought comment on extending the notice 
period to 180 days, but it did not specifically propose this change and 
therefore the proposed rules

[[Page 63328]]

retained the pre-existing 90-day ``countdown'' period. The shift to a 
180-day ``countdown'' period retains the timing mechanism in the 
proposed rules but reflects that a notice period to interconnecting 
entities of at least 180 days is necessary.
    29. We are not persuaded by Verizon that our existing requirements 
provide more than sufficient notice. It is the incumbent LEC itself 
that controls the timing of the decision to make or procure a product 
whose design necessitates the network change. This is a business 
decision on the part of the incumbent LEC, and, as such, there is no 
reason to assume that the timing it chooses will coincide with the 
needs of interconnecting carriers--indeed, as stated above, the record 
reflects that it does not. We agree with Verizon, however, that where 
facilities are no longer being used to serve any customers, whether 
wholesale or retail, a shorter notice period is appropriate. 
Accordingly, we do not apply the new notice period of at least 180 days 
to such situations and instead adopt a notice period of at least 90 
days, which is similar to the baseline under the prior rules.
    30. Finally, we find that in light of the longer notice period we 
adopt today, we will discard the objection procedures as they apply to 
copper retirements. Specifically, we will modify the proposed rule as 
it pertains to objection procedures to delete the references to 
implementation dates in proposed paragraphs (g), (h), and (i) in their 
entirety. We do not, however, remove the objection procedures 
pertaining to short-term notices of non-copper retirement network 
changes in Section 51.333 because we are not creating a fixed six-month 
notice period for such planned network changes and because there is no 
evidence in the record that the concerns pertaining to copper 
retirements apply equally to other types of network changes. The 
extended notice period we adopt today will provide to interconnecting 
entities a notice period similar to the six months they previously 
would have been afforded if they successfully objected to the timing of 
a planned network change. Under the current rules, an interconnecting 
provider can object to the timing of a copper retirement and, if 
successful, delay the implementation of that retirement to six months 
from the date the incumbent LEC gave its original notice. This fixed 
period following the Commission's release of public notice will provide 
parties sufficient opportunity to work together to allow for any 
accommodations needed to maintain uninterrupted service to end users. 
And by fixing a single time period following the Commission's release 
of public notice, we provide all parties certainty and avoid the costs 
inherent in the objection process, which itself will be beneficial to 
all concerned.
    31. We recognize the importance of information flow to competitors' 
abilities to ensure that a retirement of copper facilities does not 
disrupt service to their end users. We therefore include a good faith 
communication requirement in the modified rule we adopt today. Under 
the prior rules, an interconnecting provider could request ``specific 
technical information or other assistance'' to enable it to accommodate 
the planned network change. And in the NPRM, we sought comment on what 
additional information interconnecting providers might need in order to 
make an informed decision. The good faith communication requirement we 
adopt today will ensure that interconnecting entities still may obtain 
the information they need in order to accommodate the planned copper 
retirement without disruption of service to their customers that they 
would have been entitled to seek through the objection procedures that 
we eliminate. Specifically, we provide that an entity that directly 
interconnects with the incumbent LEC's network may request that the 
incumbent LEC provide additional information where necessary to allow 
the interconnecting entity to accommodate the incumbent LEC's changes 
with no disruption of service to the interconnecting entity's end user 
customers, and we require incumbent LECs to work with such requesting 
interconnecting entities in good faith to provide such additional 
information. We conclude that incorporating a good faith requirement 
into the rule strikes an appropriate balance between the needs of 
interconnecting carriers for sufficient information to allow for a 
seamless transition and the need to not impose overly burdensome notice 
requirements on incumbent LECs. Certain commenters propose more 
extensive content requirements for copper retirement notices than we 
adopt today. WorldNet also proposes adoption of ``a requirement for an 
ILEC to work with a CLEC in good faith by responding to reasonable 
requests for additional information about a proposed retirement and to 
work collaboratively with a CLEC in effectuating desired CLEC 
transitions to alternate facilities.'' In the Further Notice of 
Proposed Rulemaking (FNPRM), we seek comment on possible specific 
indicia of such good faith. We note that the Commission will not 
hesitate to take appropriate measures, including enforcement action, 
where incumbent LECs fail to act in good faith to provide appropriate 
information to interconnecting entities.
    32. We conclude that the good faith communication requirement that 
we adopt today is consistent with the First Amendment because it 
compels disclosure of factually accurate information in a commercial 
context. Compelled commercial disclosures are not afforded the same 
protections as prohibitions on speech. Indeed, the Supreme Court has 
held that ``[b]ecause the extension of First Amendment protection to 
commercial speech is justified principally by the value to consumers of 
the information such speech provides,'' the commercial speaker's 
``constitutionally protected interest in not providing any particular 
factual information . . . is minimal.'' The Court held further in that 
case that an advertiser's rights are reasonably protected as long as 
disclosure requirements are reasonably related to the State's interest 
in preventing deception of consumers, and that the right of a 
commercial speaker not to divulge accurate information regarding his 
services is not a fundamental right. Thus, compelled disclosure is 
subject to a less stringent standard of review than prohibitions on 
speech. The United States Court of Appeals for the DC Circuit has held 
that the holding in Zauderer can be read broadly and that government 
interests in addition to correcting deception can be invoked to sustain 
a mandate for the disclosure of purely factual information in the 
commercial context in the face of a First Amendment free speech 
challenge. We find that, in this case, the government has an interest 
sufficient to compel incumbent LECs to provide necessary technical 
information to interconnecting entities to enable those entities to 
accommodate planned copper retirements without disruption of service to 
their customers. The disclosure that we require is designed ultimately 
to protect retail customers. This entails the provision only of factual 
information. We therefore find that the good faith requirement is 
reasonably related to the government's interest in advancing 
competition, and that this interest outweighs the incumbent LECs' 
``minimal'' interest in not providing particular factual information to 
interconnecting entities. We note that, even if the higher standard of 
Central Hudson Gas & Electric Corp. v. Public Service Commission of New 
York applied in this instance, the good faith communication requirement 
adopted as part of this Order satisfies this higher

[[Page 63329]]

standard of judicial scrutiny. Under Central Hudson, a court in a 
commercial speech case must determine: (1) Whether the expression is 
protected by the First Amendment; (2) whether the asserted government 
interest is substantial; and (3) whether the regulation directly 
advances the governmental interest asserted, and whether it is not more 
extensive than is necessary to serve that interest. Even assuming the 
expression is subject to constitutional protection, we believe that the 
asserted government interest in this case of protecting retail 
customers is, indeed, substantial. Similarly, we conclude that ensuring 
competition in communications is a substantial interest. Moreover, we 
also find that the good faith requirement does not impose a more 
extensive burden than necessary because it applies only to information 
that is necessary to meet the government interest in allowing 
interconnecting carriers to accommodate the incumbent LEC copper 
retirements with no disruption of service. Thus, even were the more 
stringent standard of Central Hudson to apply in this instance, we 
believe that the good faith communication requirement detailed above 
satisfies such a standard.
    33. Revisions to Other Rule Sections. As proposed in the NPRM, we 
revise Section 51.331 by deleting paragraph (c), which provides that 
competing service providers may object to planned copper retirements by 
using the procedures set forth in Section 51.333(c), and we revise 
Section 51.333 to remove those provisions and phrases applicable to 
copper retirement. We find that consolidation of all notice 
requirements and rights of competing providers pertaining to copper 
retirements in one comprehensive rule provides clarity to industry and 
customers alike when seeking to inform themselves of their respective 
rights and obligations.
    34. Other Proposals. We decline to adopt Ad Hoc's proposal that, 
for a network change to qualify as a ``mere'' copper retirement, in 
contrast to a service discontinuance, ``a carrier must present the same 
standardized interface to the end user as it did when it used copper.'' 
Ad Hoc argues that if a network change requires the use of ``new or 
upgraded terminating equipment to convert traffic on the new facility 
into a format compatible with the installed base of network interface 
devices, customer premises equipment (CPE), or inside wire,'' the 
carrier should ``install that terminating equipment on its own side of 
the network demarcation point . . . and absorb the costs of doing so as 
part of its network modernization costs.'' We are not persuaded that 
the requirement Ad Hoc proposes is necessary. Section 68.110(b) of the 
Commission's rules, which speaks to the effect of ``changes in 
facilities, equipment, operations, or procedures'' on customers' 
terminal equipment, requires only that a carrier afford customers 
notice of such changes if such changes can be reasonably expected to 
render the equipment incompatible with the carrier's facilities or 
require modification or alteration of the equipment, or otherwise 
materially affect use or performance, for the purpose of allowing the 
customer ``an opportunity to maintain uninterrupted service.'' While 
Section 68.110(b) requires mere notice, Ad Hoc's proposal goes 
significantly further by requiring significant action on the part of 
the carrier, and the record is insufficient to support this significant 
and potentially burdensome departure from our current rules. And, as 
noted by AT&T in opposing this proposal, there is no reason to believe 
that all changes to customer CPE will be ``costly'' and that customers 
will not desire any freedom to select their own upgraded CPE.
    35. We also decline to adopt the proposal of certain commenters 
that incumbent LECs should provide competitive providers with an annual 
forecast of copper retirements. We understand that competitive LECs 
would find this type of information useful in planning for the effects 
copper retirements might have on their respective networks and customer 
contracts. However, incumbent LECs maintain that this type of 
information can constitute some of their most competitively sensitive 
information, and that such an advance disclosure requirement may risk 
putting them at a competitive disadvantage. We note that information 
contained in a forecast can change over time as circumstances change. 
Thus, the inclusion of a particular wire center in a copper retirement 
forecast does not guarantee that such a change in facilities will in 
fact occur or that it will occur within that timeframe. Thus, based on 
the record before us, we are skeptical of the value of such a 
requirement.
    36. Finally, we decline to adopt a requirement that incumbent LECs 
establish and maintain a publicly available and searchable database of 
all their copper plant, whether it has been or will be retired, whether 
it will be removed, or a database of where copper retirements have 
occurred. Incumbent LECs oppose such a requirement because it ``would 
divert vital resources away from the deployment of new fiber'' and 
because ``CLECs seeking to purchase UNEs . . . already have access to 
preorder systems that identify loop availability.'' It simply is not 
clear based on the record available that creation of any such databases 
would be feasible or cost-effective. We are persuaded by commenters 
that such a requirement could impose an expensive and potentially 
duplicative, and therefore unnecessary, burden.
(ii) Notice to Retail Customers
    37. Background. In the NPRM, we proposed revisions to the 
Commission's network change disclosure rules ``to provide additional 
notice of planned copper retirements to affected retail customers, 
along with particular consumer protection measures, and to provide a 
formal process for public comment on such plans.'' Specifically, we 
proposed requiring incumbent LECs to provide notice of planned copper 
retirements to retail customers who are directly impacted by the 
planned change, and we did not limit this proposal to consumers. We 
further proposed allowing incumbent LECs to provide such notice to 
retail customers by either written or electronic means, and we sought 
comment on possible procedures to ensure that such notice is both 
received and accessible by customers. We also proposed specific content 
requirements to ensure that retail customers receive sufficient 
information ``to understand the practical consequences of copper 
retirement'' and sought comment on whether the proposed requirements 
are adequate to protect consumer interests. With respect to the timing 
of the proposed notice to retail customers, we proposed imposing the 
same requirement that currently applies to notice to interconnecting 
carriers and giving such retail customers thirty days from the 
Commission's release of its Public Notice in which to comment on a 
proposed copper retirement. And we sought comment on our statutory 
authority to impose these proposed requirements. To address allegations 
of inappropriate actions taken by incumbent LECs with respect to 
consumers, we also sought comment on requiring incumbent LECs to 
``supply a neutral statement of the various choices that the LEC makes 
available to retail customers affected by the planned network change,'' 
as well as requiring incumbent LECs to undertake consumer education 
efforts in connection with planned copper retirements.
    38. Discussion. After reviewing the record before us, we conclude 
that modification of our network change disclosure rules to require 
direct notice to retail customers of planned copper retirements is 
warranted and is

[[Page 63330]]

consistent with the public interest, including our core value of 
consumer protection, and with Section 251(c)(5)'s requirement of 
reasonable public notice of network changes. To be clear, as explained 
further below, this notice is required only where the retail customer 
is within the service area of the retired copper and only where the 
retirement will result in the involuntary retirement of copper loops to 
the customer's premises, i.e., in the circumstances in which retail 
customers are likely to be affected. Copper retirements of this nature 
often affect consumers and other end users, whether for better or for 
worse, and these customers need to understand how they will be 
affected. A variety of commenters support our proposal to require 
direct notice to retail customers of planned copper retirements. And 
consumers need to understand the ways in which copper retirement will 
not affect them; absent such notice, consumers may not understand that 
they may retain their existing service (if applicable in the particular 
circumstance). The record reflects numerous instances in which notice 
of copper retirement has been lacking, leading to consumer confusion. 
Public interest commenters have brought to our attention proceedings in 
various states, including Maryland, California, New York, New Jersey, 
Illinois, and the District of Columbia, alleging customer complaints 
about being migrated from copper networks to other types of facilities, 
including allegations that such migrations have resulted in a move from 
regulated to unregulated services, without adequate customer notice and 
consent. Based on this information, we are unconvinced by certain 
commenters' assertion that there is no record evidence to support the 
Commission's expressed concerns regarding customer confusion about 
their options. And such consumer complaints and confusion persist. Even 
commenters critical of aspects of our proposed customer notification 
requirements otherwise agree that consumers deserve to receive 
information regarding the effect of copper retirements on their 
service. And we believe that requiring incumbent LECs to provide this 
information to their customers will allow for a smoother transition by 
minimizing the potential for consumer complaints arising out of a lack 
of understanding regarding the planned network change.
    39. We conclude the benefits of providing customers with the 
information needed to make informed decisions regarding the services 
they receive from incumbent LECs outweigh any additional burdens these 
new notice requirements may impose on the incumbent LECs. Indeed, 
incumbent LEC commenters note the importance of working with their 
customers in connection with copper-to-fiber transitions. CenturyLink 
has even made sure in at least one instance to send postcards to its 
own customers, as well as to advise competitive LECs when their end 
user customers would be affected by a planned network change. And under 
the rules we adopt today, which we have modified from the rules 
proposed in the NPRM in order to minimize the burden they impose on 
incumbent LECs, incumbent LECs will be required to provide only one 
neutral statement to consumers and will not be subject to any other 
additional obligations.
    40. We disagree with commenters who assert that rules mandating 
such notice are unnecessary. Although some incumbent LECs assert that 
they already provide such notice, it is not clear that many or all 
provide such notice, and as noted above the record reflects numerous 
instances in which notice has been unreliable absent a regulatory 
mandate. We thus find unpersuasive Cincinnati Bell's argument that 
because a carrier that will discontinue a service after a copper 
retirement will have to file a Section 214 application, to also 
requirement a copper retirement notice ``would be redundant and 
confusing to consumers.'' The simple, clear notice that we require is 
necessary because the record reflects that consumers are not receiving 
sufficient notice in all cases. Some incumbent LECs assert that they 
already must contact customers who need to have new terminal equipment 
installed as a result of a network change so that they may obtain 
access to the customers' premises. But this merely shows that incumbent 
LECs have incentives to communicate to a degree sufficient to obtain 
access to a consumer's premises; this does not demonstrate any 
incentive to educate consumers about issues such as whether existing 
services will remain available.
    41. We also find unpersuasive the assertion that a notice 
requirement is unnecessary because the Commission's current rules 
already provide for notice to the public of planned network changes via 
Sections 51.325 and 68.110(b). First, we note that Section 68.110(b)'s 
notice requirements are not always triggered by a planned copper 
retirement. More importantly, however, we find that the general public 
notice now provided by incumbent LECs under Section 51.325, which 
typically takes the form of a general notice posted on the carrier's 
Web site, is not sufficient to give actual notice to those customers 
most likely to be affected by planned copper retirements. Until 
recently, consumers generally would not be directly affected in serious 
ways by most network changes because copper retirements in favor of 
fiber-only facilities were largely voluntary. In that environment, 
reasonable public notice could be effectuated indirectly by posting on 
the carrier's Web site where those most affected (e.g., competitive 
LECs) would know to look. Given the accelerated pace of copper 
retirement, however, we find that consumers are directly affected in 
ways they had not been at the time the Commission adopted the copper 
retirement rules in the Triennial Review Order, and therefore consumers 
need direct notice for these important network changes that may 
directly affect them. We simply do not find it credible to believe that 
the public regularly checks the network change notification portion of 
our Web site or of their service provider's Web site.
    42. We disagree with commenters who assert that our proposed notice 
requirement would impose an unnecessary burden because most customers 
are ultimately happy with an upgrade from copper to fiber facilities. 
This line of argument reflects a fundamental misunderstanding of the 
purpose of the notice requirement, which in no way reflects a view that 
fiber services are inferior to copper-- indeed, the Commission has 
embraced the transition to fiber and other high-capacity transmission 
media. First, even the many customers who are ultimately happy with a 
copper-to-fiber transition are likely to benefit from understanding the 
change that will be occurring. Moreover, there remains a segment of the 
population, however comparatively small, that is resistant to changes 
in technology or for whom the new technology proves to be inferior to 
the old, and that will benefit from information that might ease the 
transition for them or that will allow them to seek out service from 
another provider. In the case of copper, such individuals may prefer a 
line-powered transmission medium, they may be comfortable with a long-
standing technology that ``just works,'' or they may not understand the 
benefits of alternative technologies. As noted by the Pennsylvania PUC, 
``copper retirements under the existing rule apparently has the 
potential to reduce wholesale, incumbent, or competitor access, thereby 
reducing retail customer choice.'' And as noted by the City of New 
York, ``absent clear, direct notice to

[[Page 63331]]

decision-makers for any discontinuance or network change, consumers 
will not be empowered to either plan or respond.'' And one commenter 
noted the possibility for confusion regarding whether certain advanced 
services offer the same functionality consumers have come to depend on 
from their legacy services. And public interest commenters have 
expressed concern regarding the perceived state trend toward 
deregulation. While we do not establish an approval process for copper 
retirement that would disrupt technological advancement, neither can we 
ignore the benefits afforded to consumers from receiving information 
regarding planned network changes that may affect the service to which 
they subscribe. Moreover, we fear that without a clear, neutral message 
explaining what copper retirement does and does not mean, some 
consumers will easily fall prey to marketing that relies on confusion 
about the ability to keep existing services. As with the DTV 
transition, we must ensure that the most vulnerable populations of 
consumers do not fall through the cracks. We believe that the minimally 
intrusive requirements we adopt today, which represent an education-
based approach, strikes the correct balance between minimizing the 
impact on incumbent LECs' fiber deployment plans and ensuring that 
consumers are informed about how they will be impacted.
    43. Recipients. In the NPRM, we proposed requiring direct notice to 
``all retail customers affected by the planned network change,'' and we 
defined ``affected customers'' as ``anyone who will need new or 
modified CPE or who will be negatively impacted by the planned network 
change.'' Based on a review of the record in this proceeding, we 
conclude that we should adopt a modified version of this proposal. 
Thus, under the updated rules we adopt today, incumbent LECs will be 
required to provide direct notice of planned copper retirements to all 
of their retail customers within the affected service area(s), but only 
where the copper to the customer's premises is to be retired (e.g., 
where an incumbent LEC replaces copper-to-the-premises with fiber-to-
the-premises regardless of the customer's preference). We believe 
limiting the notice requirement to retirements involving involuntary 
replacement of copper to the customer's premises limits notice to 
circumstances in which customers are most likely to be affected, 
thereby avoiding confusion and minimizing the costs of compliance. We 
recognize that in some cases copper is removed in connection with a 
voluntary election by the customer to receive fiber-to-the-premises or 
other non-copper-to-the-premises service; in such cases, of course, the 
regulatory notice requirement is not triggered. Our notice requirement 
is focused on circumstances in which an incumbent LEC chooses to stop 
offering service to the customer's premises via the copper network, 
irrespective of the customer's preference.
    44. We also believe modifying the proposed class of recipients in 
this way will make it easier for incumbent LECs to comply with their 
notice obligations by (1) limiting the circumstances under which they 
must provide notice to retail customers, and (2) removing the need for 
the incumbent LEC to make an independent determination regarding 
whether particular customers will require new or modified CPE or 
whether particular customers will be negatively impacted by the planned 
network change. This also obviates the need for the New York PSC's 
proposed requirement that incumbent LECs define ``impacted customers'' 
in their certifications. Notice to customers will not be required in 
those instances where operational copper remains in place. While under 
the rule that we adopt notice of a given copper retirement may be 
provided to more customers than would have received notice under the 
proposed rule, the notice requirement will be triggered less often 
because it will not be required if copper continues to reach the 
premises. Further, we conclude that this approach strikes the right 
balance in providing clarity, ensuring no customers are inadvertently 
excluded from the pool of recipients, and ensuring that notice is 
provided where it is most needed. Incumbent LEC commenters expressed 
concern regarding what they perceive as ambiguity about the proposed 
definition of ``affected customers.'' Another incumbent LEC feels that 
`` `affected customers' should be limited to those who must take some 
action in response to a network change, or whose service is affected 
due to a change in price, service feature or function, or equipment.'' 
We emphasize that, consistent with our proposal set forth in the NPRM, 
the rule we adopt herein extends copper retirement notice requirements 
not just to consumers, but also to non-residential end users such as 
businesses and anchor institutions. Certain commenters assert that our 
proposed notice requirements should be extended to include utilities 
and critical infrastructure industries. This includes incumbent LEC 
enterprise customers, such as utilities and critical infrastructure 
industries within the affected service area.
    45. Content. In the NPRM, we proposed requiring that copper 
retirement notices to retail customers ``provide sufficient information 
to enable the retail customer to make an informed decision as to 
whether to continue subscribing to the service to be affected by the 
planned network changes,'' including the information required by 
Section 51.327(a), as well as statements notifying customers that they 
can still purchase existing services and that they have a right to 
comment, and advising them regarding timing and the Commission's 
process for commenting on planned network changes. Certain commenters 
assert that our proposed notice requirements should be extended to 
include utilities and critical infrastructure industries.
    46. After review of the record in this proceeding, we conclude that 
it is warranted and appropriate to adopt the content requirements 
proposed in the NPRM, with several modifications described below. The 
record supports a finding that a significant number of consumers are 
confused regarding the effect of copper retirements on their service, 
and would thus benefit from notices providing them the information 
needed in order to properly evaluate the continued ability of their 
current service to meet their needs. We note that the requirements we 
adopt today provide as much flexibility as possible subject to 
necessary limits to help ensure that consumers will receive and 
understand the copper retirement notices they receive. Various 
commenters support our proposals regarding the content of copper 
retirement notices to retail customers. The notice requirement will 
have the added benefit of increasing consumer confidence in technology 
transitions. We further find that these content requirements should not 
be overly burdensome. Indeed, they are similar to existing Commission 
rules governing notice in the context of the discontinuance process and 
the use of customer proprietary network information (CPNI). We find the 
CPNI notice process a useful comparison point because it also involves 
educating and informing consumers and because those rules prescribe 
detailed steps to ensure that consumers will receive and recognize 
email based notice, which we also permit here.
    47. The rule we adopt today is modified from the proposal in the 
NPRM in four ways. First, we adopt the additional requirement that the 
mandatory statements in the notice must be made in a clear and 
conspicuous manner. As stated above,

[[Page 63332]]

the record reflects that a number of consumers are confused when copper 
retirements occur, so clear and conspicuous provision of information 
will help to remedy that issue. Our rules already require ``clear and 
conspicuous'' notice in a number of contexts. To provide additional 
guidance, we clarify that a statement is ``clear and conspicuous'' if 
it is disclosed in such size, color, contrast, and/or location that it 
is readily noticeable, readable, and understandable. In addition, the 
statement may not contradict or be inconsistent with any other 
information with which it is presented; if a statement materially 
modifies, explains or clarifies other information with which it is 
presented, then the statement must be presented in proximity to the 
information it modifies, explains or clarifies, in a manner that is 
readily noticeable, readable, and understandable, and not obscured in 
any manner; and hyperlinks included as part of the message must be 
clearly labeled or described. We adopt this detailed definition of 
``clear and conspicuous'' to provide guidance to help ensure that 
customers will understand the required notice and to provide certainty 
to industry about our requirements. To streamline the filing and reduce 
the burden on incumbent LECs, we decline to require that the notice 
include: (1) Information required by Section 51.327(a)(5), because that 
primarily requires provision of technical specifications that are 
unlikely to be of use to most retail customers; (2) a statement 
regarding the customer's right to comment on the planned network 
change, because, as discussed below, we decline to include in the 
updated rule we adopt today a provision regarding the opportunity to 
comment on planned network changes; and (3) a statement that ``[t]his 
notice of planned network change will become effective a certain number 
of days after the Federal Communications Commission (FCC) releases a 
public notice of the planned change on its Web site'' because this 
statement is likely to be unnecessarily confusing and because 47 CFR 
51.327(a)(3), which we incorporate as to customer copper retirement 
notices, already requires disclosure of the implementation date of the 
planned changes.
    48. Neutral Statement. In the NPRM, we proposed prohibiting 
incumbent LECs from including in copper retirement notices to retail 
customers ``or any other communication to a customer related to copper 
retirement any statement attempting to encourage a customer to purchase 
a service other than the service to which the customer currently 
subscribes.'' In addition, we proposed requiring incumbent LECs to 
include ``a neutral statement of the various choices that the LEC makes 
available to retail customers affected by the planned network change.''
    49. After reviewing the record before us, we conclude that we 
should require incumbent LECs to include in copper retirement notices 
to retail customers a neutral statement of the various service options 
that they make available to retail customers affected by the planned 
copper retirement. We also conclude that the notice that we require 
must be free from any statement attempting to encourage a customer to 
purchase a service other than the service to which the customer 
currently subscribes, but that this prohibition will apply only to 
copper retirement notices provided pursuant to the Commission's network 
change disclosure rules and not to any other communication. We intend 
that this notice serve not only this consumer protection goal, but also 
provide affected customers with the opportunity to learn about the 
facility change and give them an opportunity to seek more information. 
To that end, we require that providers maintain a toll-free number that 
customers may call to raise any questions about the planned retirement, 
and a URL for a related Web page with relevant information (e.g., a 
``frequently asked questions'' page). Both the toll-free number and the 
address for the Web page should be included in the notice to the 
customer, along with contact information for the Commission (including 
a link to the Commission's consumer complaint portal) and the relevant 
state PUC. This requirement will ensure that consumers have direct 
access to the provider to better understand what to expect regarding 
the process of copper retirement and any possible impact on their 
service. Moreover, while the requirement we adopt today is for a single 
notice to the affected customers, we emphasize that this single notice 
is a floor, not a ceiling. We strongly encourage carriers to follow up 
with affected consumers to ensure that they have received the 
notification and understand the implications to facilitate a smooth 
transition for these customers.
    50. This neutral statement requirement and limited prohibition will 
better enable retail consumers to make informed choices about their 
services and will give them the necessary tools to determine what 
services to purchase without swaying them towards new or different 
offerings. We believe that this strikes the right balance between 
allowing incumbent LECs to advise their customers regarding the 
availability of advanced services and preventing potentially aggressive 
marketing tactics that might lead to consumer confusion. To be clear, 
nothing in the requirements that we adopt prohibits marketing new or 
different services in communications other than the notice that we 
require.
    51. The record reflects extensive support for these requirements, 
and that they will carry clear value for consumers. As ADT observes, 
``[t]he Commission should not permit ILECs to use the technology 
transition to create new marketing opportunities for themselves.'' 
Contrary to some assertions, we are not inserting ourselves in 
carriers' marketing strategies--indeed, carriers remain free to engage 
in unlimited marketing with the exception of the single neutral notice 
that we require.
    52. Certain commenters assert that there is no record evidence to 
support the Commission's expressed concerns regarding the pressure 
certain carriers have allegedly brought to bear on customers to switch 
services. However, the record belies this assertion. For example, 
NASUCA pointed to a news story in Montgomery County, Maryland 
describing a consumer's experience with pressure to move from copper 
not just to fiber but to a package of digital services offered over the 
fiber network. And public interest commenters cite to various incumbent 
LEC actions that raise the concern that incumbent LECs' motivation to 
sell bundles may discourage the kind of neutral communication that we 
require. According to the Director of Montgomery County's Office of 
Consumer Protection, that office received complaints from consumers 
alleging that the carrier in question was engaged in ``deceptive 
marketing practices'' as it transitioned customers to the fiber 
network. That article also points to nationwide complaints filed with 
the Federal Trade Commission. The assertions about lack of evidence in 
the record also ignore the sources of support cited in the NPRM.
    53. We are not persuaded by the argument that prohibiting incumbent 
LECs from discussing the availability of advanced services prevents 
carriers from educating consumers regarding the benefits of fiber. The 
only thing our new rule prevents is the inclusion of such discussions 
in copper retirement notices issued pursuant to our rules, which could 
lead to confusion regarding the continued availability of the type of 
service to which the consumer currently subscribes. Incumbent LECs are 
free to provide information regarding advanced

[[Page 63333]]

services offered over fiber in any of their marketing materials, as 
those materials are not the required copper retirement notice. While 
incumbent LECs and their representative organizations assert that the 
majority of consumers have embraced the benefits of fiber, these 
assertions ignore the existence of those consumers who have not yet 
chosen to purchase services beyond basic voice, many of whom are among 
the more vulnerable segments of the population. And it is those 
consumers who are most in need of the notice requirement that we adopt. 
Our ``one neutral notice'' requirement ensures that consumers will 
receive key information on the services available to them without 
significantly inhibiting incumbent LEC marketing efforts, therefore 
striking the best balance between informing consumers and facilitating 
the technology transitions.
    54. Aside from the neutral statement requirement discussed above 
and the related requirement to make available a toll-free number and 
contact information, we decline to adopt any further content 
requirements. Certain commenters want the notices to retail customers 
to include detailed information regarding all possible changes that 
could result from a planned copper retirement, including ``the impact 
on continuity of service in an electrical power outage'' and the 
availability of substitute services. And one commenter proposes that 
notices to retail customers also ``inform customers of their avenues to 
appeal to their Public Utilities Commission, Office of Consumer's 
Counsel, or the Federal Communications Commission if the change would 
bring about negative consequences for consumers.'' We decline to adopt 
these proposed expanded content requirements. In an effort to minimize 
our regulation, we additionally decline to adopt the ``separate 
postage'' rule proposed by ADT, which would prohibit notices to retail 
customers from being included ``in the same envelope'' as any material 
marketing advanced services. The modified rule we adopt today will 
require incumbent LECs to identify ``any changes to the service(s) and 
the functionality and features thereof,'' which would include 
continuity of power. And as discussed below, the updated rule will 
require that incumbent LECs certify their compliance with Section 
68.110(b)'s requirement that carriers notify customers when a planned 
change in facilities will affect the compatibility of CPE. With respect 
to the proposal that we require incumbent LECs to identify the 
availability of substitute services, we proposed in the NPRM that 
incumbent LECs be required to include in their copper retirement notice 
to retail customers ``a neutral statement of the various choices that 
the LEC makes available to retail customers affected by the planned 
network change.'' As discussed above, we incorporate this requirement 
into the updated rule. At this time, we do not believe it is necessary 
to require more than this in the context of the notice to customers, 
where the copper retirement does not rise to the level of a 
discontinuance, reduction, or impairment of service for which a carrier 
would need to seek Commission authorization.
    55. Constitutionality. We are not persuaded by arguments that the 
prohibition on marketing new services and the requirement of a neutral 
statement of service offerings amount to violations of their 
constitutional right to free expression. We conclude that the notice 
requirement that we adopt is consistent with the First Amendment 
because it merely contains a narrow, targeted time, place, and manner 
restriction and compels disclosure of factually accurate information in 
a commercial context.
    56. The ``one neutral notice'' requirement that we adopt today 
largely addresses incumbents' arguments in opposition to the proposed 
prohibition on upselling contained in the NPRM, which was far more 
restrictive. In fact, the upselling prohibition that we adopt today 
applies only to the notice that we require. Incumbent LECs are free to 
inform their customers of advanced services offered over fiber 
facilities through as many other communications as they wish. We 
believe deployment of fiber facilities is beneficial in many respects, 
and we do not seek to deter it. However, we must ensure that such 
deployments do not happen in a manner that negatively impacts 
vulnerable populations. The ``one neutral notice'' requirement that we 
adopt strikes this balance while imposing the most limited restriction 
possible.
    57. It is well-established that government may impose time, place, 
and manner restrictions on protected speech ``provided the restrictions 
`are justified without reference to the content of the regulated 
speech, that they are narrowly tailored to serve a substantial 
government interest, and that they leave open ample alternative 
channels for communication of the information.' '' The Commission's 
upselling prohibition and neutral statement requirement are reasonable 
time, place, and manner restrictions given the low burden that these 
requirements place on providers and the substantial government interest 
they serve. Incumbent LECs will still be free to seek to inform 
customers about new or upgraded services in separate communications 
using whatever means they so choose, even during a network upgrade. 
Instead, the requirement of a neutral statement of product offerings 
and the prohibition on attempts at upselling in a copper retirement 
notice are intended to promote the substantial government interest of 
protecting retail customers, especially vulnerable ones such as the 
elderly, from aggressive and confusing upselling by incumbent LECs at 
the same time the carriers are informing those customers of changes in 
facilities. We are not seeking to control what incumbent LECs say to 
their customers or to impose our own view of appropriate upselling; 
rather, we seek to ensure that retail customers are fairly informed of 
the effect of a planned copper retirement without the possible added 
confusion of contemporaneous communications by their providers to 
attempt to sell them other, possibly more expensive services. The 
objective is to better enable retail consumers to make informed choices 
about their services. We conclude that this significant government 
interest would be achieved less effectively absent implementation of 
the prohibition and the neutral statement requirement.
    58. The customer notice that we require is consistent with the 
First Amendment because it merely requires the provision of true 
factual information in a commercial context and therefore is consistent 
with Zauderer. We find that, in this case, the government has an 
interest sufficient to compel incumbent LECs to include a neutral 
statement in their copper retirement notices that, among other things, 
includes the various choices available to retail customers affected by 
the planned network change and provide sources of additional 
information related to that planned network change, and to inform 
interconnecting entities about technical information concerning the 
changes. The notice that we require is designed to protect retail 
customers, in particular vulnerable populations such as elderly 
consumers, and to ensure that they are made aware of the full range of 
product offerings available to them following a planned copper 
retirement. The notice entails the provision only of factual 
information. We therefore find that the notice is reasonably related to 
the government's interest in safeguarding retail consumers, and that 
this interest outweighs the incumbent LECs' ``minimal'' interest in not 
providing

[[Page 63334]]

particular factual information to their customers. We note that, even 
if the higher standard of Central Hudson applied in this instance, the 
notice requirement adopted as part of this Order satisfies this higher 
standard of judicial scrutiny. Even assuming the expression is subject 
to constitutional protection, we believe that the asserted government 
interest in this case of protecting retail customers--including but not 
limited to elderly consumers and other vulnerable populations--and 
ensuring that they are made aware of the full range of product 
offerings following a copper retirement is, indeed, substantial. 
Moreover, the requirement of a single neutral statement of service 
offerings has been tailored narrowly to directly advance these stated 
interests by providing retail customers with a list of the full range 
of product offerings made available by their providers. We also find 
that this notice requirement does not impose a more extensive burden on 
providers than is necessary to serve the asserted governmental 
interests. Thus, even were the more stringent standard of Central 
Hudson to apply in this instance, we believe that the notice 
requirement satisfies such a standard.
    59. Form. In the NPRM, we proposed allowing incumbent LECs to use 
written or electronic notice such as postal mail or email to provide 
notice to retail customers of a planned copper retirement. Based on a 
review of the record in this proceeding, we conclude that we should 
adopt this proposed requirement, which a variety of commenters support. 
Although certain commenters urge the Commission to permit more 
flexibility, we conclude that the requirement we adopt today strikes 
the right balance between ensuring receipt of notice and avoiding 
unnecessary burdens. In particular, we find that notice in formats 
other than email or postal mail would be too easily ignored by 
consumers. The requirement we adopt today should be sufficient to 
ensure that retail customers receive notice, without imposing 
unnecessary additional burdens on incumbent LECs.
    60. However, we are cognizant of concerns that permitting customers 
to directly reply to emails containing copper retirement notices could 
impose a heavy administrative burden on them. Because we retain the 
notice-based process for copper retirement network change disclosures, 
we find that there is little reason to require incumbent LECs to allow 
customers to reply directly to these email notices. On the other hand, 
we find that the benefits to consumers of the other requirements we 
proposed in the NPRM outweigh any additional administrative burdens on 
incumbent LECs. These requirements are consistent with the requirements 
contained in our CPNI rules, and only one commenter opposed to our 
proposed notice requirements touched on this specific issue. 
Dissemination of the notice shall be made available and accessible to 
persons with disabilities. We note that incumbent LECs are required to 
make their disseminated information and Web site accessible.
    61. Notice Period for Retail Customers. In the NPRM, we proposed 
providing retail customers at least ninety-days' notice of planned 
copper retirements. We conclude that this notice period is appropriate 
for residential retail customers, to whom earlier notice may be 
confusing and potentially forgotten over a long period of time. Based 
on our review of the record in this proceeding, however, we conclude 
that non-residential retail customers, which include businesses and 
anchor institutions, require more than ninety-days' notice. As 
discussed above, we have concluded that it is appropriate to extend the 
notice period for interconnecting carriers to at least 180 days. We now 
conclude that non-residential retail customers should receive the same 
amount of notice as interconnecting carriers. Enterprise customer 
commenters and the competitive LECs that provide them service assert 
that they require more than ninety days' notice of planned copper 
retirements to allow for planning to accommodate the network changes. 
Certain commenters believe 180 days is an appropriate period for notice 
to retail customers. One commenter asserts, however, that utilities 
need notice of a planned copper retirement at least one year in 
advance. On the other hand, CenturyLink currently gives its DSL 
consumer customers thirty days' notice of ``network upgrades.'' At 
least one commenter supports providing retail customers the same amount 
of notice as provided to interconnecting carriers. As stated above, we 
find this longer time period warranted as to non-residential customers 
but potentially confusing and unwarranted for residential customers. 
This should allow non-residential retail customers sufficient time to 
evaluate the impact of the planned network change on the service they 
would continue to receive and whether they need to seek out 
alternatives. Given that we are extending the notice period for 
interconnecting carriers, there is no significant added cost to 
matching that notice period for non-residential end users compared to 
adopting a shorter notice period solely for such end users. We note 
that where the facilities to be retired are no longer in use, we 
conclude that incumbent LECs need not provide notice of the planned 
copper retirement to their retail customers because there are no retail 
customers to whom to provide notice.
    62. Other Consumer Education. In the NPRM, we sought comment on 
whether we should require incumbent LECs to undertake consumer 
education initiatives in connection with planned copper retirements. We 
conclude that the rules we adopt today requiring detailed notices to 
retail customers, together with the requirement to make available a 
toll-free number and contact information for additional resources, 
lessens the immediate need for further educational efforts directed 
toward consumers at this time. That said, we remain concerned about 
whether consumers will have the information they need on copper 
retirement specifically and technology transitions more generally. For 
instance, the Michigan PSC states that ``education during the copper 
transition is critical to alleviate misunderstandings and confusion for 
consumers and supports requiring initiatives similar to the digital 
television (DTV) transition to allow the copper transition to move 
along more smoothly.'' While we set a foundation today by implementing 
a more targeted solution, we suspect that more will be necessary as the 
transition progresses. To be clear, we do not foreclose the possibility 
of adopting additional consumer education initiatives in response to 
the NPRM and we otherwise may revisit the issue particularly if there 
is evidence of consumer confusion and concerns following copper 
retirements.
    63. In addition, we emphasize and support the role of state 
commissions and Tribal governments to support consumer education around 
copper retirement. States traditionally have played a critical role in 
consumer protection, and we strongly encourage carriers engaging in 
copper retirement that affects consumers directly to partner with state 
public service commissions, Tribal entities, and other state and local 
entities to ensure consumers understand and are prepared for the 
transition. We note that the record reflects the benefit of cooperation 
between state commissions and carriers during the copper retirement 
process--including by ensuring minimal disruption to consumers. For 
instance, the Massachusetts Department of Telecommunications and Cable 
reports on its ``recent experience with the transition of the Town of 
Lynnfield, Massachusetts to an all fiber network''

[[Page 63335]]

and explains that ``the MDTC worked collaboratively with Verizon 
Massachusetts on prior customer notification, and that as a result the 
Lynnfield transition was successfully completed with minimal 
disruption.'' We applaud such efforts and encourage other providers to 
coordinate cooperatively with their state commissions.
    64. Other Proposals. We decline to adopt the proposed rural 
exemption advocated by TCA, an organization representing a large number 
of rural LECs. TCA asserts that many of its members are small, member-
owned or locally-owned businesses located in the very communities they 
serve. As a result, TCA asserts that the requirements proposed in the 
NPRM are ``onerous and unnecessary.'' We conclude the modifications we 
have adopted in response to the record received sufficiently address 
these concerns. And while the rules necessarily impose some burden on 
incumbent LECs, we do not find that burden to be greater for rural LECs 
or that rural consumers are less in need of information regarding 
planned copper retirements.
    65. We also decline to adopt the proposal of the Communications 
Workers of America that we should impose different notice requirements 
for network upgrades (i.e., replacing the copper facilities with fiber 
facilities), network downgrades (e.g., ``a removal to replace the 
copper with [facilities for] an inferior voice-only service (such as 
Verizon's Voice Link service)''), and ``the complete abandonment of 
facilities.'' We do not believe such differentiation is necessary. The 
``downgrade'' CWA refers to is framed in terms of replacing one service 
with a different, inferior service. Such a situation is more 
appropriately addressed in the context of a Section 214(a) 
discontinuance, reduction, or impairment of service, rather than a 
change in facilities. With respect to ``the complete abandonment of 
facilities,'' if this change in facilities results in a discontinuance, 
reduction, or impairment of service, then it also would fall within the 
purview of our rules governing such situations and the incumbent LEC 
would be obligated to comply with the copper retirement notice 
obligations and file a discontinuance application.
    66. Finally, we decline to adopt the City of New York's proposal 
that we require proof of notice acknowledged by individual customers 
before allowing changes. We are concerned that such a requirement would 
unfairly penalize incumbent LECs for the failure of their customers to 
act. End users typically would not have an incentive to provide such an 
acknowledgement.
(iii) Ability To Comment
    67. After consideration of the record and other avenues for input, 
we find that avenues to communicate with the Commission are sufficient 
and that formalizing a right to comment is not needed. We therefore 
decline to adopt the proposal to revise the network change disclosure 
rules to provide ``the public, including retail customers and industry 
participants, with the opportunity to comment on planned network 
changes.'' We are persuaded that a formalized comment process could be 
confusing to consumers because there is no approval process associated 
with copper retirements. Certain commenters support the Commission's 
proposal to provide retail customers with the formal right to comment 
on planned copper retirements, although at least one commenter urged 
the Commission to at least make clear how it will use comments 
submitted by the public. However, various commenters on both sides of 
this issue note that providing the public the right to submit comments 
formally (1) does not provide additional advantage beyond use of the 
existing email address, and (2) will confuse consumers and lead to 
dissatisfaction, because we did not propose to convert the network 
change disclosure process to one requiring Commission approval. As 
stated above, we reject requests that the Commission convert the 
current notice-based network change disclosure process to a process in 
which an incumbent LEC must obtain Commission approval before 
implementing a proposed copper retirement. The public, including 
consumers and competitive carriers, have multiple means with which to 
communicate with us regarding copper retirements. Since we adopted the 
NPRM, an amendment to Section 51.329 of the Commission's rules 
requiring that carriers file network change disclosures in the 
Commission's Electronic Comment Filing System and permitting responsive 
filings to be filed via ECFS has become effective. Thus, network change 
disclosures are now docketed proceedings open to public comment. 
Consumers and others are able to submit complaints to the Consumer and 
Governmental Affairs Bureau. The public also may continue to comment on 
planned network change disclosures via the email address established 
specifically for that purpose. We find that no further action is needed 
at this time.
(iv) Notice to States, Tribal Governments, and the Department of 
Defense
    68. In the NPRM, the Commission proposed requiring incumbent LECs 
to send notices of proposed copper retirements to the public utility 
commission (PUC) and to the governor of the state in which the network 
change is proposed and to the Secretary of Defense, similar to the 
current requirement for such notice in connection with Section 214 
discontinuance applications. We sought comment on whether to also 
require notice of planned network changes that do not involve copper 
retirement and whether to require notice to other governmental 
entities, such as the Federal Aviation Administration, Tribal 
governments, or municipalities. Public interest advocates, including 
various state PUCs, support the Commission's proposal to require notice 
to state authorities and the Department of Defense. We noted that the 
Commission is ``not the only governmental authority with important 
responsibilities with respect to technology transitions'' and ``[i]n 
particular, States serve a vital function in safeguarding the values of 
the Network Compact.''
    69. After reviewing the record before us, we conclude that 
``reasonable public notice'' in the context of copper retirements 
includes providing notice of the planned copper retirements directly to 
state authorities (the governor and the state PUC), the Department of 
Defense, and federally recognized Tribal Nations where the copper 
retirement will occur within their Tribal lands. Throughout this 
document, ``Tribal Nations'' and ``Tribal governments'' include any 
federally recognized Indian tribe's reservation, pueblo of colony, 
including former reservations in Oklahoma; Alaska Native regions 
established pursuant to the Alaska Native Claims Settlement Act (85 
Stat. 688); Indian allotments; and Hawaiian Home Lands--areas held in 
trust for Native Hawaiians by the State of Hawaii, pursuant to the 
Hawaiian Homes Commission Act, 1920, Act July 9, 1921, 42 Stat. 108, et 
seq., as amended. The copper retirement notices containing the 
information required by the rule we adopt today and existing state 
notification obligations under Section 214 will provide state 
authorities with significant information concerning technology 
transitions. We therefore decline to impose any of the additional state 
and local notification requirements proposed by Public Knowledge at 
this time. We further conclude that this notice should occur 
contemporaneously

[[Page 63336]]

with notice to interconnecting entities. Specifically, this notice must 
be provided no later than the same time as the incumbent LEC notifies 
the Commission (i.e., no later than the same time that it submits the 
notice that will trigger the Commission to issue a public notice that 
establishes a period of at least 180 days before retirement) unless 
there are no customers, in which case the notice must be provided at 
least 90 days before retirement. We find this time period warranted to 
ensure adequate notice to these entities so that they can discharge 
their responsibilities, and we find the 90-day exception warranted 
because governance issues are likely to be fewer where there are no 
customers. In light of the accelerated pace of copper retirements and 
the allegations in the record of this and other proceedings, we 
conclude that the states should be fully informed of copper retirements 
occurring within their respective borders so that they can plan for 
necessary consumer outreach and education. State authorities are an 
important source of consumer outreach and education, and they need the 
information that can allow them to field the calls that will come when 
consumers receive copper retirement notices. As noted by the 
Pennsylvania PUC, ``copper retirements under the existing rule 
apparently ha[ve] the potential to reduce wholesale, incumbent, or 
competitor access, thereby reducing retail customer choice. This has 
real consequences on the ground in the states.'' Because of the impact 
of copper retirements at the State level, we believe it is important to 
address ``concerns about technological change, competitive access, and 
universal service . . . with the principle of cooperative federalism.'' 
The concern is no less on Tribal lands, where state commissions may not 
have jurisdiction to regulate carriers or address consumer complaints, 
and we find no basis in the record for distinguishing between States 
and Tribal governments. And given the increased cybersecurity risks 
posed by IP-based networks, the Department of Defense should be kept 
informed of copper retirements. The requirement we adopt today is 
consistent with the requirements associated with Section 214 of the Act 
and Section 63.71 of the Commission's rules. Indeed, when the 
Commission adopted the requirement that carriers seeking to discontinue 
services notify state PUCs and the Department of Defense, it noted: 
``State commissions with notice will be better able to bring to our 
attention the effects of discontinuances upon customers who may be 
unable themselves to inform us that they lack substitute service, upon 
interexchange access providers, and upon competing carriers who may not 
receive notice of anti-competitive discontinuances. Accordingly, 47 CFR 
63.71 will include the requirement that the applicant must submit a 
copy of its application to the public utility commission as well as to 
the Governor of the State and the Secretary of Defense. . . .'' 
Carriers previously had been required to provide this same notice under 
Sections 1.764 and 63.90(d) of the Commission's rules. We decline to 
adopt this same notice requirement for other network change 
notifications at this time given a lack of sufficient support in the 
record or clear need on the part of the governmental or Tribal Nations.
    70. No commenters in this proceeding have brought to our attention 
any concrete difficulties that incumbent LECs would experience due to 
compliance with this proposed requirement. And various states already 
require carriers to file notices of network change with their public 
utility commissions. Moreover, various state commission commenters 
support this requirement, undercutting incumbent LEC arguments that 
states will be flooded with notices they do not necessarily want. 
Commenters opposed to the proposed rules argue that requiring 
additional notice to affected states and the Department of Defense 
could ``introduce new and unwarranted complexity into the process'' 
since such agencies will already receive notice to the extent they are 
customers who will receive notice in the regular course, pursuant to 
the NPRM's other proposed notice requirements. And, they argue, as the 
pace of copper retirement accelerates, these agencies likely will be 
deluged with notices for which the incumbent LECs argue there is no 
corresponding benefit. We are not persuaded by these arguments. Various 
states already require carriers to file notices of network change with 
their public utility commissions. And we are not convinced that a 
government authority's receipt of notice of a copper retirement should 
depend on whether the authority is a customer of the carrier because: 
(1) Not every copper retirement in a state will affect the state as a 
customer; and (2) the notice of copper retirement to the state as a 
customer will likely go to a different administrative office than a 
notice to the State as a governmental entity. Nor are we convinced that 
carrier participation in forums such as the National Security 
Telecommunications Advisory Committee obviates the Department of 
Defense's need for copper retirement notifications. Rather, as 
explained above, these notifications will ensure that government 
authorities have timely and consistent access to information they need 
to perform their consumer protection and public safety responsibilities 
throughout the technology transitions.
(v) Certificate of Service
    71. In the NPRM, we proposed requiring that incumbent LECs file 
along with their public notice a certification containing specified 
information, much of which was previously required by Sections 
51.329(a)(2) and 51.333(a) of our rules.
    72. After reviewing the record before us, we conclude that we 
should adopt the proposal, as modified below. In particular, we adopt a 
rule that requires an incumbent LEC to file with the Commission at 
least ninety (90) days before retirement is permissible a certificate 
of service, signed by an officer of the company and complying with 
Section 1.16 of the Commission's rules, that includes the following 
information:
     A statement that identifies the proposed changes;
     A statement that notice has been given in compliance with 
paragraph (b)(1) of the Section;
     A statement that the incumbent LEC timely served a copy of 
its notice filed pursuant to paragraph (b)(1) of the Section upon each 
entity within the affected service area that directly interconnects 
with the incumbent LEC's network;
     The name and address of each entity referred to in 
paragraph (d)(3) of the Section upon which written notice was served;
     A statement that the incumbent LEC timely notified and 
submitted a copy of its public notice to the public utility commission 
and to the Governor of the State in which the network change is 
proposed, to any federally recognized Tribal Nations with authority 
over the Tribal lands in which the network change is proposed, and to 
the Secretary of Defense in compliance with paragraph (b)(4) of the 
Section;
     If customer notice is required by paragraph (b)(3) of the 
Section, a statement that the incumbent LEC timely served the customer 
notice required by paragraph (b)(3) of the Section upon all retail 
customers to whom notice is required;
     If a customer notice is required by paragraph (b)(3) of 
the Section, a copy of the written notice to be provided to retail 
customers;

[[Page 63337]]

     A statement that the incumbent LEC has complied with the 
notification requirements of Section 68.110(b) or that the notification 
requirements of Section 68.110(b) do not apply;
     A statement that the incumbent LEC has complied with the 
good faith communication requirements of paragraph (g) of the Section 
and that it will continue to do so until implementation of the planned 
copper retirement is complete; and
     The docket number and NCD number assigned by the 
Commission to the incumbent LEC's notice.
    73. Requiring this information is reasonable and necessary to 
ensure compliance with our rules, will assist with enforcement if any 
inaccuracies were subsequently found, and is consistent with the 
current requirement applicable to short-term notices in Section 
51.333(a). Numerous commenters support this requirement. Incumbent LEC 
commenters, however, believe such a requirement is unwarranted. As 
previously noted, under the existing rules, notices of copper 
retirements must comply with the short-term notice provisions. We 
require identification of the docket number and NCD number to 
facilitate our processing of the certification. Monitoring compliance 
with the rules we adopt today would be difficult without incumbent LECs 
confirming for us that they have complied. And the consumer complaints 
brought to our attention by public interest commenters as well as the 
concerns raised by various competitive providers highlight the need for 
the Commission to be able to monitor compliance with the requirements 
we adopt today. The at least ninety-day time period we adopt is 
appropriate because it is as prompt as possible after all possible 
notification duties have been completed. We decline to require multiple 
staggered certifications to minimize the regulatory burden on incumbent 
LECs. The Enforcement Bureau will investigate potential carrier 
violations of the rules we adopt today governing the copper retirement 
process and will pursue enforcement action when necessary.
    74. We conclude that Section 68.110(b)'s notice requirements and 
the customer notice requirements we adopt today are complementary. 
Section 68.110(b) requires that telecommunications providers give 
customers ``adequate notice'' of changes in network facilities if such 
changes will render CPE incompatible. Certain commenters argue that the 
protections afforded by Section 68.110(b)'s notice requirements, in 
conjunction with Section 51.325's public notice requirements for 
network changes, afford sufficient protections. Others argue for cross-
referencing Section 68.110(b)'s notice requirements in any revised 
rules we adopt. We note, however, that Section 68.110(b)'s notice 
requirements will not always be triggered when public notice of a 
planned copper retirement is required under revised Section 51.325. We 
therefore also conclude that requiring incumbent LECs to certify their 
compliance with Section 68.110(b)'s notice requirements, when 
applicable, will ensure that incumbent LECs have evaluated the effect 
of any planned copper retirements on customers' terminal equipment. We 
are not persuaded by Cincinnati Bell that requiring incumbent LECs to 
certify that they have directly notified all interconnecting carriers 
``may be an impossible burden to meet.'' As discussed above, under the 
predecessor rules to those we adopt today, copper retirements have been 
subject to the ``short term notice provisions'' set forth in Section 
51.333(a); and under Section 51.333(a), which applies ``if an incumbent 
LEC wishes to provide less than six months' notice of planned network 
changes,'' the incumbent LEC already must certify that they have 
provided the public notice required by Section 51.325(a) directly to 
interconnecting telephone exchange service providers. As previously 
noted, incumbent LECs in fact include such certificates of service when 
filing their copper retirement notices with the Commission. The 
accelerated pace of broadband deployment and technology transitions 
warrant the Commission's reevaluation of the role of network change 
disclosures in protecting core values. Moreover, we conclude that the 
certification requirement embodied in Section 51.333(a), which we carry 
over to new Section 51.332(d), provides important protections. It 
ensures that all affected parties receive the appropriate notification.
(vi) Legal Authority
    75. Notice Requirements. We conclude that we have authority 
pursuant to Sections 201(b) and 251(c)(5) of the Act to adopt the 
proposed revisions to the network change disclosure rules regarding the 
types of information that must be contained in copper retirement 
notices. As noted above, Section 251(c)(5) of the Act requires 
``reasonable public notice of changes in the information necessary for 
the transmission and routing of services using that local exchange 
carrier's facilities or networks, as well as of any other changes that 
would affect the interoperability of those facilities and networks.'' 
We conclude that this language in the Act affords the Commission broad 
discretion in determining the information an incumbent LEC should be 
required to provide to interconnecting carriers. However, in 
implementing Section 251(c)(5) and adopting the network change 
disclosure rules, the Commission in the Second Local Competition Order 
defined the phrase ``information necessary for transmission and 
routing'' as ``any information in the incumbent LEC's possession that 
affects interconnectors' performance or ability to provide services.'' 
Noting that network change disclosures promote ``open and vigorous 
competition contemplated by the 1996 Act, the Commission declined to 
restrict the types of information that must be disclosed and noted that 
``[t]imely disclosure of changes reduces the possibility that incumbent 
LECs could make network changes in a manner that inhibits 
competition.'' The Commission thus noted that the information ``must 
include but not be limited to references to technical specifications.'' 
We thus reject arguments that the enhanced content requirements 
proposed in the NPRM go beyond the type of information authorized by 
Section 251(c)(5). We conclude that providing interconnecting entities 
with information regarding the effect of a planned copper retirement on 
rates, terms, or conditions will allow those entities to better plan 
their business. We further conclude that, contrary to AT&T's 
assertions, this is consistent with the Commission's determination in 
the Second Local Competition Order that the information to be provided 
in network change disclosures is not limited to information that will 
affect existing interconnection arrangements but rather should include 
``information concerning network changes that potentially could affect 
anticipated interconnection.'' We also conclude that the additional 
information proposed in the NPRM is necessary to ensure that the 
incumbent LECs' practices are just and reasonable under Section 201(b) 
of the Act. Competitive providers need information regarding changes to 
the rates, terms, and conditions that will result from a planned copper 
retirement in order to engage in appropriate business planning.
    76. The updated network change disclosure rules we adopt today are 
crucial to protecting the core values of the Act, specifically the 
promotion of competition and protection of consumers. We disagree with

[[Page 63338]]

commenters that argue that requiring incumbent LECs to provide notice 
to retail customers goes beyond the authority of Section 251(c)(5) to 
require that incumbent LECs provide ``reasonable public notice.'' We 
conclude that the phrase ``reasonable public notice'' requires the 
Commission to determine what notice must be provided and to whom it 
should be provided in order to serve the public interest. We agree with 
public interest commenters that our actions here ensure that consumers 
have accurate and timely notice of network changes that could impact 
the functionality and interoperability of their devices or third-party 
services, the Commission is giving clarity to what is considered 
```reasonable public notice'' of changes that affect the transmission, 
routing, and interoperability of services on the network. We further 
conclude that ``reasonable'' notice to non-expert members of the public 
cannot strictly be limited to a bare description of the changes; 
instead, it should encompass the kind of clarifying information that we 
require here.
    77. Finally, we reject arguments that Section 706 of the 1996 Act 
counsels against the actions we take today. Section 706(a) is a grant 
of authority to ``utilize, in a manner consistent with the public 
interest, convenience, and necessity . . . measures that promote 
competition in the local telecommunications market, or other regulating 
methods that remove barriers to infrastructure investment.'' 
Additionally, if the Commission determines that ``advanced 
telecommunications capability'' is not being deployed in a ``reasonable 
and timely fashion,'' Section 706(b) requires that the Commission 
``take immediate action to accelerate deployment of such capability by 
removing barriers to infrastructure investment and by promoting 
competition in the telecommunications market.'' Our actions are 
consistent with these provisions. Contrary to Cincinnati Bell's 
assertion, it simply is not true that we are ``forc[ing] [incumbent 
LECs] to preserve their copper networks.'' In fact, we retain a notice-
based process that provides a clear path to copper retirement. By 
promoting an environment in which all parties are more able to accept 
transitions away from copper, creating a more predictable retirement 
notification process, and retaining a notice-based process that does 
not erect additional regulatory barriers, the Commission acts to 
facilitate the deployment of advanced telecommunications services and 
remove potential barriers to infrastructure investment in a manner 
consistent with the public interest. We also promote competition by 
ensuring that interconnecting entities have the information that they 
need to continue to serve customers, and thus retain income needed for 
further investment, when copper facilities with which they interconnect 
are retired.
    78. Provision to Governmental and Tribal Entities. We also conclude 
that Section 251(c)(5)'s requirement that incumbent LECs provide 
``reasonable public notice of changes in the information necessary for 
the transmission and routing of services using that local exchange 
carrier's facilities or networks'' supports our decision to require 
notice to state authorities, Tribal governments, and the Department of 
Defense. State authorities and the Department of Defense already 
receive notice of service discontinuances, and this information 
provision will facilitate a consolidated understanding of technology 
transitions. These key public agencies are important recipients of such 
notice as guardians of the public interest. And given their extensive 
duties and limited resources, it would be unreasonable to expect them 
to have to constantly monitor the Web sites of numerous incumbent LECs 
as well as the Commission. We conclude that cooperating and 
coordinating with these key governmental authorities to ensure that 
consumers are protected and competition is preserved is also supported 
by Section 201(b)'s broad grant of authority to prescribe such rules 
and regulations as may be necessary in the public interest to carry out 
the provisions of the Act. We are persuaded that the minimal additional 
notice requirements that we adopt here will not reduce incentives for 
incumbents to continue to deploy fiber, and the consumer protection and 
public safety benefits outweigh the additional burden on incumbent 
LECs. We realize that Section 63.71(a) of the Commission's rules does 
not require notice to Tribes in connection with a discontinuance 
application, and that it could be incongruous to require greater notice 
for copper retirement than for discontinuances. However, as noted 
above, we believe it is important to act cooperatively with state and 
Tribal authorities to address ``concerns about technological change, 
competitive access, and universal service,'' and the concern is no less 
on Tribal lands, where state commissions may not have jurisdiction. We 
therefore include in the FNPRM a request for comment on revising 
Section 63.71(a) to include such a requirement.
b. Definition of ``Cooper Retirement''
    79. Due to the current frequency and scope of copper network 
retirement, it is critical that industry participants and stakeholders 
clearly understand when our copper retirement notice process is 
triggered so that the momentum of prompt, responsible transitions is 
not abated. Therefore, it is necessary to clarify when a ``copper 
retirement'' occurs. We endeavor to catalyze further fiber deployment 
and find that eliminating this uncertainty removes one potential source 
of industry resistance or hesitation to retiring copper. Further, we 
find that providing additional clarity is critical for properly 
informing the public of network changes in accordance with Section 
251(c)(5) of the Act and also for maintaining the Commission's core 
values. Our actions build on the NPRM, which requested comment on 
proposed revisions to the ``retirement'' definition, with particular 
focus on: (1) The types of copper facilities to be included within the 
concept of ``retirement'', and (2) the actions (or lack of action) 
constituting ``retirement.''
    80. For the reasons set forth below, we adopt the expanded 
definition proposed in the NPRM and therefore define copper retirement 
to mean ``removal or disabling of copper loops, subloops, or the feeder 
portion of such loops or subloops, or the replacement of such loops 
with fiber-to-the-home loops or fiber-to-the-curb loops.'' We also 
define copper retirement to include de facto retirement, i.e., failure 
to maintain copper loops, subloops, or the feeder portion of such loops 
or subloops that is the functional equivalent of removal or disabling. 
By providing additional clarity in our rules, we will minimize ongoing 
disputes and carrier uncertainty as to what is required as technology 
transitions occur in the marketplace.
    81. Section 251(c)(5) of the Act imposes on incumbent LECs ``[t]he 
duty to provide reasonable public notice of changes in the information 
necessary for the transmission and routing of services using that local 
exchange carrier's facilities or networks, as well as of any other 
changes that would affect the interoperability of those facilities and 
networks.'' Although our rules require this statutorily mandated notice 
in the event of ``retirement'' of copper facilities, we have not 
specified what constitutes ``retirement,'' and we have not revisited 
the issue of when copper retirement triggers a network change 
notification requirement in over a decade. Given the increasing pace 
and

[[Page 63339]]

scope of retirements of copper facilities, we find the definition that 
we adopt necessary to ensure fulfillment of the goals of Section 
251(c)(5).
(i) Copper Facilities To Be Included
    82. The current network change disclosure rules do not include the 
feeder portion of loops within the relevant provisions, but they do 
include ``retirement of copper loops or copper subloops, and the 
replacement of such loops with fiber-to-the-home loops or fiber-to-the-
curb loops.'' In the NPRM, the Commission sought comment on expanding 
``retirement'' to include the feeder portion of the loop and also on 
whether other copper facilities should also be included. Prior to the 
NPRM, various parties requested a rulemaking to adopt rules 
encompassing the feeder portion of the loop, noting that if the feeder 
portion is unavailable for unbundled access, ``the practical difficulty 
of obtaining access to the remaining portion of the loop forecloses 
competitive access to the customer.'' After considering the record 
received, we find that modifying our rule is appropriate in light of 
experience with our initial implementing rules and the current 
marketplace. The Commission received many comments regarding the 
expansion of copper facilities included within the retirement 
definition. Several commenters support including the feeder portion, 
noting the importance of that portion to gaining access to retail 
customers. Other commenters take no position on the matter. Incumbent 
LECs are generally opposed to the Commission's proposed revisions to 
the scope of copper facilities encompassed within the rules. While 
incumbent LECs refrained from offering specific comments regarding the 
feeder loop addition, their overall position is that there is ``little 
need for new rules in this area'' and that the proposed modifications 
do not provide ``any identifiable benefit to consumers or 
competition.''
    83. We agree with the Pennsylvania Public Utility Commission that 
if the feeder portion is unavailable to competitive LECs, the practical 
difficulty of accessing the remaining portion of the loop for retail 
purposes is insurmountable. In many cases, replacement of copper feeder 
can have the same harmful effects as removal or replacement of the home 
run loops and sub loops, which are explicitly covered under the current 
rules. Therefore, we disagree with the incumbent LECs' argument 
regarding the supposed lack of benefits to consumers and competition. 
Incumbent LECs should not be permitted to avoid the network change 
notification requirements simply because they are replacing one portion 
of the loop instead of another equally critical portion. We also agree 
with XO Communications that specifying in our rules that retirement of 
copper feeder is a ``retirement'' will avoid confusion in the 
marketplace among both incumbent and competitive carriers. We therefore 
adopt our proposal that the feeder portion of the loop should be one of 
the copper facilities captured within the concept of retirement.
(ii) Defining ``Retirement'', ``Removal'' and ``Disabling''
    84. The existing network change notification rules do not define 
what actions constitute ``retirement'' and thus what actions trigger 
the notification duty under Section 251(c)(5). To address this lack of 
a definition, we proposed defining the term ``copper retirement'' as 
``the removal or disabling of'' covered copper facilities, i.e., 
``copper loops, subloops, or the feeder portion of such loops or 
subloops.'' For reasons discussed below, we conclude that it is 
appropriate to adopt a definition that defines retirement as the 
``removal or disabling'' of copper facilities. We further define 
``disabling'' to mean rendering the copper facilities inoperable 
(through acts of commission or omission). We limit the definition of 
``removal'' to physical removal.
    85. We find that the phrase ``removing or disabling'' is 
appropriate because it captures the typical activities by which 
incumbent LECs have transitioned away from copper networks. Notably, no 
commenters argued against the use of the phrase ``removal or 
disabling.'' Moreover, it is straightforward enough to indicate that 
providers should understand the type of activity that implicates the 
notification process.
    86. We conclude that ``disabling'' should be further defined to 
include rendering the copper facilities inoperable. We also agree with 
the California PUC that ``disabling'' should only refer to long term or 
permanent periods of time and that instances where facilities are 
temporarily inoperable due to a catastrophe or for repair should not 
constitute ``disabling'' under the new rule. We do not intend for the 
retirement definition to encompass the downtime associated with 
scheduled upgrades and repairs. However, we caution that a sufficiently 
long disabling of facilities (or the functional equivalent thereof) 
with no end in sight, even if ostensibly temporary, may constitute 
retirement for which a carrier must undergo our network change 
notification process. Because each circumstance will require careful 
analysis of the particular facts at issue--including but not limited to 
the length of time in which the facilities have been unavailable, the 
announced plans of the incumbent LEC with respect to the facilities, 
and the extent of unavailability--we decline to adopt any bright line 
time limits and instead clarify that we will resolve each issue on a 
case-by-case basis.
    87. We also clarify that the term ``disabling'' does not, however, 
mean only affirmative acts by incumbent LECs. As discussed below, acts 
of omission, such as the failure to repair or maintain copper 
facilities, can also render those facilities inoperable. A sufficient 
and long-term level of neglect can therefore constitute retirement.
    88. As for ``removal,'' we conclude it should be defined as the 
physical removal of copper. Cincinnati Bell suggests that the 
Commission consider creating two categories for retirement--one for 
physical removal and one for non-physical removal. It argued there are 
several reasons that incumbent LECs should have an option to retire 
copper in place without physically removing it, such as: The provision 
of structural support for fiber optic cables and the provision of line 
power (from the copper) to other equipment in the field. We agree with 
Cincinnati Bell that copper that remains physically deployed but no 
longer performs its vestigial telecommunications function may 
nonetheless retain utility, but we find it necessary for such 
facilities to go through the copper retirement notification process so 
that the public is notified that the facilities no longer function. We 
conclude, however, there is no need for a non-physical definition of 
removal because if copper remains physically present but is no longer 
capable of providing telecommunications services (i.e., it is 
inoperable), it has been ``disabled'' and is retired within the meaning 
of our rules. Therefore, contrary to Public Knowledge's suggestion, it 
is unnecessary to have multiple categories of ``removal'' in the new 
rule. As discussed below, we define retirement to include de facto 
retirement.
(iii) De Facto Retirement
    89. The NPRM outlines numerous allegations that in some cases 
incumbent LECs have allowed copper networks to deteriorate to the 
extent that the networks are no longer reliable. In these 
circumstances, under our current rules, incumbent LECs have not been 
required to comply with the Commission's existing copper retirement 
procedures. The NPRM proposed revising our rules to require

[[Page 63340]]

an incumbent LEC to undergo the network change notification process for 
a de facto retirement, defined as the failure to maintain copper that 
is the functional equivalent of removal or disabling.
    90. We find that the practice of deliberately allowing copper 
networks to deteriorate is harmful to competition, negatively impacting 
end users, and that de facto retirements should be covered in the 
copper retirement requirements. We therefore add to our definition of 
retirement any ``failure to maintain copper loops, subloops, or the 
feeder portion of such loops or subloops that is the functional 
equivalent of removal or disabling.'' We adopt this change to ensure 
incumbent LECs are aware that intentional neglect of copper facilities 
triggers their notification responsibilities, and to make such 
practices less likely to occur. We find that while States, localities, 
and Tribal Nations play a critical monitoring and enforcement role for 
de facto retirement, the Commission also has an important enforcement 
role to play, particularly in situations where local entities no longer 
have the authority to act. We encourage consumers and others to file a 
complaint on our Web site if their service is poor due to copper 
facilities that are not being maintained adequately. To be clear, the 
Commission will not hesitate to take appropriate measures where a 
provider de facto retires copper facilities without first complying 
with our the copper retirement requirements we adopt today, including 
enforcement action. We anticipate that the threat of enforcement action 
will serve as a deterrent to de facto copper retirement, but if not, 
the Commission reserves the right to consider more specific remedies in 
cases where carriers allow copper facilities to deteriorate to the 
point that is the functional equivalent of removal or disabling of the 
copper facilities (such as, depending on the particular facts and the 
legal authorities triggered, repairing the copper facilities or making 
available replacement facilities).
    91. We agree with competitive LECs, state PUCs, and consumer 
advocates that the copper retirement definition should be expanded to 
include de facto retirements resulting from a provider's intentional 
neglect. In response to the NPRM, CWA suggests eleven factors for the 
Commission to consider when identifying a de facto retirement during a 
complaint process. We recognize that a wide range of information may be 
relevant to our evaluation, but while we gain experience with this 
issue we prefer to adopt a case-by-case approach rather than constrain 
the sources of information that we will consider. Contrary to AT&T's 
suggestion that ``there is no such thing as a de facto retirement,'' 
the record suggests that this is a significant issue. Several filings 
in the record detail a number of specific examples of negligence in 
Maryland, the District of Columbia, California, Illinois, and New York. 
Xchange Telecom expressly disputes Verizon's assertion that de facto 
retirement is a myth. And the Utilities Telecom Council points out the 
consequences of de facto retirements. We do not, however, adopt 
WorldNet's proposed broader definition of de facto retirement that 
would encompass inside wiring owned or controlled by the incumbent LEC. 
The record does not support adoption of such a broad approach, which 
would go beyond the scope of our copper retirement rules. Instead, we 
find that the scope of facilities to which the de facto retirement 
concept applies should be no broader than the underlying scope of 
facilities covered by our copper retirement rules.
    92. We remind carriers that where they neglect copper facilities in 
a manner that constitutes de facto retirement, any resulting loss of 
service may constitute a discontinuance, reduction, or impairment of 
service for which a Section 214(a) application is necessary. The copper 
retirement network change notification process and the discontinuance 
approval process remain fundamentally distinct because the former 
concerns changes in facilities and merely requires notice, while the 
latter concerns changes in services and requires Commission approval. 
We therefore disagree with assertions that the revised definition for 
copper retirement ``begins to look like the service discontinuance 
process.'' However, in those instances where a de facto copper 
retirement also results in discontinuance, we expect carriers in such a 
situation to file both a notice and an application. By emphasizing 
Section 214(a), we do not mean to suggest that it is our only source of 
authority to act with respect to carriers that fail to maintain copper 
facilities adequately.
(iv) Scope of New Rules
    93. Flexibility to address individual customer service concerns. In 
recognizing the concept of ``de facto'' copper retirement and requiring 
notice of certain retirements to individual customers, it is not our 
intent to limit a carrier's flexibility to respond to an individual 
customer's service quality concerns by migrating a customer from its 
copper facilities in areas where a carrier has already deployed fiber-
to-the-premises. Accordingly, the advance notice requirements will not 
apply in situations in which a carrier migrates an individual customer 
from its copper to its fiber network to resolve service issues raised 
to the carrier by the customer (e.g., complaints by the customer of a 
frequent ``crackling'' sound on the copper voice line or frequent 
outages in wet conditions), provided that the retirement does not 
result in a change in the nature of the services being provided to the 
affected customers. We contrast this customer-specific network 
migration (which will not trigger advance notice requirements or serve 
as prima facie evidence of de facto copper retirement) with migrations 
in which (i) the carrier requires customers in a given area to move 
from its copper to its fiber network as part of a planned network 
migration, in which case the notice process described above should be 
followed, or (ii) the carrier allows its copper network serving a 
broader geographical area (e.g., an entire neighborhood) to deteriorate 
in a manner that is the ``functional equivalent of removal or disabling 
it'' without first following the notice-based copper retirement 
process. In addition, we caution that this clarification is not a 
loophole and if we see evidence of abuse, we will reevaluate the issue 
and take action if appropriate.
    94. The clarification we provide above provides carriers with 
sufficient flexibility to manage service calls by moving customers from 
a copper to a fiber network. We therefore do not believe it is 
necessary or appropriate to adopt the ``safe harbors'' from the copper 
retirement notice requirements we adopt today requested by Verizon--one 
``in which an incumbent LEC will not be considered to have engaged in 
de facto copper retirement in areas where it has deployed a fiber 
network and service is available to customers over fiber facilities,'' 
and the other ``in which an incumbent LEC that meets a statewide 
Network Trouble Reports Per Hundred Lines standard will not be found to 
have engaged in de facto retirement of its copper facilities.'' Fiber 
to the Home Council seeks an even broader exception, asserting that 
there should not be a finding of de facto retirement ``once a carrier 
announces its intention to deploy fiber to residential customer 
premises in a specific area . . . since the carrier has an incentive to 
install fiber promptly and any dispute about de facto retirements would 
only impose costs without any material benefit.'' We are not persuaded 
by this argument in light of recent news stories of incumbent LEC 
failures to follow through with announced intentions to

[[Page 63341]]

deploy fiber. In such instances, if the incumbent LEC follows the 
procedures set forth in the rules we adopt today, it would not subject 
itself to claims of de facto retirement. Read literally, these safe 
harbors could permit immediate retirement regardless of the 
circumstances, e.g., there would be no need to notify customers even in 
the event of a planned retirement (as opposed to in response to an 
individual service complaint), and a carrier could allow its network 
serving many customers over a given area to deteriorate to the point of 
de facto retirement without first following the notice-based copper 
retirement process. In particular, we decline to adopt the first 
suggested safe harbor as written because it is so broad that it would 
eliminate any duty to educate consumers and inform carriers about 
transitions to fiber, undercutting a key goal of the copper retirement 
rules that we adopt. We also decline to adopt Verizon's second 
suggested safe harbor because we find it to paint with too broad a 
brush. While we do not suggest that this is the intent of Verizon's 
proposed safe harbor, meeting a statewide average troubles per line 
metric set by a state would allow a carrier to mask large 
concentrations of bad copper lines by averaging its relatively few 
troubles per line numbers for its fiber lines with its relatively 
higher troubles per line numbers for its copper lines, again 
undercutting the purposes of our actions today.
    95. The modest clarification addresses the underlying concern that 
carriers will be unable to transition customers to fiber when service 
issues arise, while still achieving the Commission's pro-consumer 
goals. We understand TelePacific's concerns regarding involuntary 
transitions from copper to fiber, and the rules that we adopt strongly 
promote transparency regarding such transitions. However, we also 
recognize the need for carriers, when faced with exigent circumstances, 
to manage their networks and ensure that their customers do not have 
their service disrupted while their provider goes through the copper 
retirement network change disclosure process. Nor do we intend to 
subject carriers to liability for de facto retirement in situations 
where the issue is not widespread but instead the movement of a 
customer from a copper to a fiber network is the most effective and 
efficient means of addressing the customer's service concerns. Limiting 
the exception in the manner that we adopt strikes an appropriate 
balance between the needs of the incumbent LECs and the needs of 
competitive LECs and retail customers.
    96. States, Localities, and Tribes. We recognized in the NPRM that 
States, localities, and Tribal Nations play a vital role in overseeing 
carriers' service quality and network maintenance. Nevertheless, in 
light of the trend in which many states' legislatures have elected to 
limit the scope of their PUCs' traditional authority over 
telecommunications services we requested comments on whether these 
local institutions remain able to perform key oversight functions. Many 
commenters indicate a strong belief that local institutions are fully 
capable of administering the requisite oversight--including that of 
copper network maintenance. Several states emphasize that they still 
have unique insights into their jurisdictions and require a free hand 
to operate. We agree that local authorities have an important and 
unique role to play. And contrary to Verizon's claims, our actions do 
not encroach on traditional state jurisdiction regarding ongoing 
maintenance obligations. As stated in the NPRM, we emphasize that we do 
not seek to revisit or alter the Commission's decision in the Triennial 
Review Order to preserve state authority with respect to requirements 
for copper retirement. Furthermore, we agree that in addition to 
complaints directed to the Commission, complaints from retail and 
wholesale customers submitted to state regulatory agencies provide 
critical insight as to whether an incumbent LEC has failed to 
adequately maintain its copper networks.
    97. Other Issues. We decline to adopt CWA's suggestion that we 
distinguish disabling copper for service upgrades versus service 
downgrades. Our copper retirement rules do not contain such a 
distinction and we decline to adopt one because the Commission and the 
public have an equal need to be informed about all copper retirements, 
regardless of the purpose. We also decline at this time to adopt Public 
Knowledge's proposal that we establish a process for situations where a 
network is damaged after a natural disaster and a carrier decides to 
permanently replace that network with a new technology because such a 
clarification is unnecessary given existing requirements. The Act and 
our rules establish clear requirements for emergency and temporary 
discontinuances, and the November 2014 declaratory ruling that we 
reaffirm today provides significant guidance regarding when an 
application is required when functionality is lost. As the Commission 
noted when it granted Verizon's request for a waiver of Section 63.63's 
requirements following Superstorm Sandy: ``[T]he information required 
by the rule is critical to the Commission's ability to ensure that 
customers of communications providers are minimally affected by 
discontinuance, reduction, or impairment of service due to conditions 
beyond a provider's control.'' Further, the discontinuance and network 
change notification requirements that we propose in the FNPRM and adopt 
today are responsive to this concern because they help to ensure that 
carriers will notify us and seek our approval in appropriate 
circumstances and meet the needs of end users, so we do not find it 
necessary to establish a separate process at this time.
c. Sale of Copper Facilities That Would Otherwise Be Retired
    98. We continue to ``believe that sale of copper facilities could 
be a win-win proposition that permits incumbent LECs to manage their 
networks as they see fit while ensuring that copper remains available 
as a vehicle for competition.'' We are pleased that incumbent LECs such 
as AT&T and Cincinnati Bell have expressed willingness to consider 
selling copper facilities that they intend to retire. Although we 
recognize that there may be difficulties involved, we encourage other 
incumbent LECs to consider selling copper facilities that they intend 
to retire.
    99. While the potential benefits of sales of to-be-retired copper 
facilities are clear, we are not persuaded based on the record before 
us that we should mandate the sale of copper that an incumbent LEC 
intends to retire and/or establish for ourselves a supervisory role in 
the sale process. First, we agree with a number of commenters that 
Commission oversight of sales could be intrusive, costly, potentially a 
barrier to technology transitions, and would tax limited Commission 
resources. Second, the record has not revealed sufficient demand by 
competitive LECs or others for retired copper to warrant addressing the 
challenging legal and policy issues that likely would be raised. Third, 
as noted above, there is reason to expect that there will be willing 
incumbent LEC sellers in at least some markets without the need for 
regulatory action. Finally, we note that some state regulators are 
already active in this area, which mitigates at least somewhat the need 
for further Commission action.
    100. We reject the argument that Commission intervention is 
necessary because incumbent LECs will refuse to sell facilities that 
they intend to retire to thwart competition or exercise market

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power in determining the price and terms of sale. There is no evidence 
on the record before us that incumbent LECs have refused to sell 
facilities that they intend to retire. AT&T claims in its reply 
comments that there ``is no evidence that market-based solutions will 
harm competition or consumers, and thus no basis for Commission 
regulation.'' Several commenters assert that there is nothing 
prohibiting any prospective purchaser from inquiring about the sale of 
copper facilities that have been or are scheduled to be retired, and 
that such sales will occur to the extent that these facilities offer 
value to prospective purchasers. Further, our action today to ensure 
reasonably comparable wholesale access to next-generation services 
pending completion of the special access proceeding mitigates the 
concern that incumbent LEC refusal to sell would foreclose competition 
on next generation technology in the near term. Given the lack of 
existing evidence that incumbent LECs have refused to sell to-be-
retired copper facilities, the potential disruption that could be 
caused by Commission oversight, and the lack of clear proof of demand 
in the record, we do not think it necessary to impose any such 
oversight measures at this time. However, we note that if parties bring 
to our attention evidence of actual anticompetitive behavior or market 
failures in connection with the sale of copper, we may revisit this 
issue in the future. Finally, we are not convinced that we must act 
because ``carriers were fully reimbursed for their investments'' in 
copper facilities--even if true, this does not show that purchasers 
will be able to extract additional value.
2. Updating and Clarifying Commission Section 214 Discontinuances 
Policy for the Technology Transitions
    101. We further facilitate technology transitions by addressing the 
service discontinuance requirements set forth in Section 214(a) of the 
Act. Section 214(a) mandates that the Commission must ensure that the 
public is not adversely affected when carriers discontinue, reduce, or 
impair services on which communities rely. Today, we act to ensure that 
transitions in the technologies used to provide service do not undercut 
the availability of competitively-provided services that benefit 
communities and enterprise customers of all sizes that serve those 
communities. Our actions encourage technology transitions that could 
otherwise be delayed if enterprise customers lose the option to make 
comparable purchases at comparable rates to those which are presently 
available, including through supply from competitive carriers. First, 
we clarify that consistent with our longstanding precedent, a carrier 
must seek our approval if its elimination of a wholesale service 
results in the discontinuance, reduction, or impairment of service to a 
community. This clarification will minimize further disputes and 
carrier uncertainty as to what Section 214(a) requires as technology 
transitions continue in the marketplace, thereby facilitating the 
ability of carriers and consumers to successfully navigate this 
transition. Second, we require on an interim basis incumbent LECs that 
discontinue a TDM-based service to provide competitive carriers 
reasonably comparable wholesale access on reasonably comparable rates, 
terms, and conditions during the pendency of the special access 
proceeding. Competition provided by competitive carriers that often 
rely on wholesale inputs offers the benefits of additional choice to an 
enormous number of small- and medium-sized businesses, schools, 
government entities, healthcare facilities, libraries, and other 
enterprise customers. We therefore take these actions to protect 
consumers, preserve the extent of existing competition, and facilitate 
technology transitions. These actions will benefit the public by 
ensuring that as technology transitions proceed, end users do not lose 
service and continue to have choices for communications services. We 
are not today protecting competitive carriers; rather, we act to 
preserve their contributions to the market, which can include lower 
prices, higher output, and increased innovation and quality.
(a) Scope of Section 214(a) Discontinuance Authority and Wholesale 
Services
    102. Overview and Background. In this section, we provide guidance 
and clarification concerning the circumstances in which the statutory 
obligations of Section 214(a) of the Act apply to a carrier's 
discontinuance of a service used as a wholesale input by one or more 
other carriers. Consistent with Section 214(a) of the Act and our 
precedent, we clarify that a carrier must obtain Commission approval 
before discontinuing, reducing, or impairing a service used as a 
wholesale input when the carrier's actions will discontinue, reduce, or 
impair service to end users, including a carrier-customer's retail end 
users. The Commission has previously equated ``community, or part of a 
community'' with the using public. We also clarify that a carrier may 
discontinue a service used as a wholesale input so long as it either 
(a) obtains Commission approval via the Section 214 process, or (b) 
determines that there will be no discontinuance, reduction, or 
impairment of service to end users, including carrier-customers' end 
users. As we explain in detail below, under the statute and our 
precedent it is not enough for a carrier that intends to discontinue a 
service to look only at its own end user customers. Instead, the 
carrier must follow the process established by statute and precedent 
for obtaining approval if its action will discontinue, reduce, or 
impair service to a community, or part of a community--including 
service provided to the community by the discontinuing carrier's 
carrier-customer. Thus, we explain that in order to comply with its 
obligations, a carrier discontinuing service--whether that carrier is 
an incumbent or a competitive carrier--must carefully determine whether 
its actions will, in fact, discontinue, reduce, or impair service to 
end users.
    103. We provide clarity and certainty for carriers seeking to 
transition technologies while continuing to protect the public in the 
manner mandated by Congress. We find that this clarification is 
necessary to fortify the Commission's ability to fulfill its critical 
statutory role in overseeing service discontinuances under Section 214 
of the Act, which requires carriers to obtain a certificate from the 
Commission ``that neither the present nor future public convenience and 
necessity will be adversely affected'' by the carrier's plan to 
discontinue service to a community or part of a community. Section 
214(a) and our implementing rules were designed to protect retail 
customers from the adverse impacts associated with discontinuances of 
service, and they ensure that service to communities will not be 
discontinued without advance notice to affected customers, opportunity 
to comment, and Commission authorization. Section 214(a) and our 
implementing rules ensure that the Commission has the information 
needed to determine whether the present or future public convenience 
and necessity will be adversely affected by the carrier's action. Our 
rules are designed to ensure that customers are fully informed of any 
proposed change that will reduce or end service, ensure appropriate 
oversight by the Commission of such changes, and provide an orderly 
transition of service, as appropriate. As the Commission has stated in 
a prior enforcement action related to the Section 214 discontinuance 
process, ``[u]nless the

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Commission has the ability to determine whether a discontinuance of 
service is in the public interest, it cannot protect customers from 
having essential services cut off without adequate warning, or ensure 
that these customers have other viable alternatives.''
    104. Our actions will help to ensure that before service that 
benefits a community is discontinued, reduced, or impaired, the 
Commission is able to conduct a careful evaluation of whether that 
action is consistent with the public interest. Competitive LECs are 
concerned that they will lose the ability to access the last-mile 
facilities necessary to serve their customers if incumbent LECs 
discontinue TDM-based services when transitioning from TDM to IP-based 
services. Several commenters state that discontinuance of wholesale 
services used by competitive LECs will necessarily, or is likely to, 
result in a discontinuance of service to retail end users. We address 
these concerns in the context of Section 214(a) and precedent by 
emphasizing that carriers must consider the impact of their actions on 
end user customers, including the end users of carrier-customers.
    105. We reiterate that our intent is to fulfill our statutory duty 
to safeguard the public interest while also facilitating technology 
transitions and that ``[t]o say that section 214 applies does not mean 
that section 214 approval will be withheld.'' We also recognize that a 
carrier's discontinuance, reduction, or impairment of a wholesale 
service may not always discontinue, reduce, or impair service to retail 
end users. Rather, we emphasize that a carrier must undertake a 
meaningful evaluation of the situation, as discussed in greater detail 
below.
    106. Our decision will ensure that the Commission is informed and 
able to fulfill its statutory duty with respect to discontinuances, 
reductions, or impairments of service used as a wholesale input, but it 
also ensures that carriers need not file an application where no such 
discontinuance, reduction, or impairment occurs. In addition, Section 
214(a) states that no authorization is required ``for any installation, 
replacement, or other changes in plant, operation, or equipment, other 
than new construction, which will not impair the adequacy or quality of 
service provided.'' Thus, our action is not in tension with commenter 
assertions that retail services are not necessarily discontinued, 
reduced, or impaired by changes in wholesale service, and that there is 
little evidence to support a conclusion that retail services are 
discontinued, reduced, or impaired by such changes. We note that we 
find AT&T's assertion that discontinuance of service to competitive 
LECs' customers would ``rarely be true'' to be in tension with its 
separate statement that it cannot be expected to know how its wholesale 
customers' end users would be affected by a service discontinuance. We 
further address commenters' arguments that replacement services may be 
available to carrier-customers such that service to retail end users 
may not be affected infra at para. 116. We do not prejudge whether and 
when a discontinuance occurs, and instead we simply reinforce that 
Section 214 mandates that our approval process be followed when it 
does.
    107. Because our careful review of Section 214(a) and precedent 
leads us to adopt the clarification articulated above, we find it 
unnecessary to adopt the rebuttable presumption proposed in the NPRM. 
We proposed establishing a rebuttable presumption that ``where a 
carrier seeks to discontinue, reduce, or impair a wholesale service, 
that action will discontinue, reduce, or impair service to a community 
or part of a community such that approval is necessary pursuant to 
section 214(a).'' In the NPRM, we proposed that this presumption would 
be rebutted where it could be shown that either: (i) Discontinuance, 
reduction, or impairment of the wholesale service would not 
discontinue, reduce, or impair service to a community or part of a 
community; or (ii) discontinuance, reduction, or impairment of the 
wholesale service would not impair the adequacy or quality of service 
provided to end users by either the incumbent LEC or competitive LECs 
in the market. We see no need to create a new legal mechanism with the 
potential to unnecessarily delay technology transitions when the 
clarification that we adopt is sufficient to ensure that we are able to 
fulfill our obligation under Section 214(a) to protect the public, 
while continuing to facilitate these transitions.
    108. Precedent. We take this action pursuant to Section 214, the 
Commission's implementing rules, and precedent. As explained in detail 
below, our clarification of precedent to ensure that the public 
interest is protected and carriers have the clarity needed to 
facilitate technology transitions, particularly as discontinuances 
increase during these transitions, is consistent with and builds on our 
precedent. Section 214(a) states that ``[n]o carrier shall discontinue, 
reduce, or impair service to a community, or part of a community, 
unless and until there shall first have been obtained from the 
Commission a certificate that neither the present nor future public 
convenience and necessity will be adversely affected thereby.'' By the 
plain terms of the statute, carriers must obtain Commission approval 
when their actions will discontinue, reduce, or impair service to a 
community or part of a community, not just when their actions will 
discontinue, reduce, or impair their own service to their own end 
users. The Commission has consistently held that carrier-to-carrier 
relationships are subject to Section 214(a), and that prior Commission 
approval is required when a carrier seeks to discontinue service that 
another carrier uses to provide service to the community or part of the 
community if discontinuing, reducing, or impairing that service will 
discontinue, reduce, or impair service to the carrier-customer's retail 
customers.
    109. In Western Union, the Commission addressed the purpose of the 
Section 214(a) notice and discontinuance requirements, finding that 
they ``are directed at preventing a loss or impairment of a service 
offering to a community or part of a community without adequate public 
interest safeguards.'' Similarly, in that decision the Commission 
stated that ``[i]n determining the need for prior authority to 
discontinue, reduce or impair service under Section 214(a), the primary 
focus should be on the end service provided by a carrier to a community 
or part of a community, i.e., the using public.'' Our clarification is 
consistent with these statements precisely because they focus on impact 
on the using public and are directed to preventing a loss to the end-
user community without adequate safeguards. Notably, Western Union also 
states that the Commission ``consider[s] carrier-to-carrier 
interconnection relationships to come within the context of Section 
214(a),'' demonstrating that carrier relationships can be cognizable 
within the scope of Section 214(a). The Commission found that ``for 
Section 214(a) purposes, we must distinguish those situations in which 
a change in a carrier's service offerings to another carrier will 
result in an actual discontinuance, reduction or impairment to the 
latter carrier's customers as opposed to a discontinuance, reduction or 
impairment of service to only the carrier itself.'' Under the 
particular set of facts at issue in Western Union, the Commission found 
that the carrier-customer failed to show how its claims of increased 
costs and loss of operational flexibility as a result of the

[[Page 63344]]

upstream carrier's actions would result in a loss or impairment of 
service to the carrier-customer's retail end users. This conclusion 
does not foreclose the possibility that the impact of a carrier's 
actions on a carrier-customer's ability to serve its end users could 
constitute discontinuance. To the contrary, it simply was a finding 
that the end user community simply had not undergone a discontinuance 
under the facts of that case. Consistent with Western Union, we 
recognize that a carrier's actions can result in a discontinuance, 
reduction, or impairment of service to the end-user community via 
impact on a carrier-customer's ability to serve that community, 
depending on the particular facts and circumstances at issue.
    110. In Lincoln County, the Commission again considered the 
question of when a discontinuance under Section 214(a) occurs. The 
Commission noted that ``[h]ere we have one carrier attempting to invoke 
Section 214(a) against another carrier'' and that ``[t]he concern 
should be for the ultimate impact on the community served.'' The 
Commission further stated that ``for Section 214(a) purposes, we must 
distinguish those situations in which changes . . . will result in an 
actual discontinuance, reduction or impairment to the latter carriers' 
[i.e., carrier-customers'] customers as opposed to a discontinuance, 
reduction or impairment of interconnection to only the carrier 
itself,'' and found that an alternate routing reconfiguration did not 
impair service to the community served by the carrier-customer. Again, 
this holding shows that there was not a discontinuance under the 
particular facts of the case. The Commission's decision in Lincoln 
County shows that ``an actual discontinuance, reduction or impairment 
to the [carrier-customers'] customers'' as a result of the upstream 
carrier's actions would require a discontinuance application. As noted 
in para. 115 below, we maintain the distinction, highlighted in both 
Western Union and Lincoln County, between situations in which a 
discontinuance, reduction, or impairment of service will result in an 
actual discontinuance, reduction, or impairment to the carrier-
customer's retail end users and situations where the actions will 
discontinue, reduce, or impair service to only the carrier-customer 
itself.
    111. In Graphnet, the Commission again addressed the issue of 
whether a carrier violated Section 214(a) and stated that ``in 
situations where one carrier attempts to invoke Section 214(a) against 
another carrier, concern should be had for the ultimate impact on the 
community served rather than on any technical or financial impact on 
the carrier itself.'' The Commission found that service to a community 
or part of a community ``was not discontinued, reduced, or impaired in 
this instance'' where domestic traffic was routed through Canada but no 
service disruption was noted. Thus, the Commission merely found that 
there was not a discontinuance based on the particular facts in that 
case, i.e., there was not a reduction or impairment of service to the 
using public.
    112. Our clarification finds especially strong support in BellSouth 
Telephone. In that proceeding, the Commission specifically rejected 
BellSouth's argument that Section 214 authorization is not required to 
discontinue certain service because it was only discontinuing service 
to its carrier-customers. The Commission again emphasized that ``[i]f, 
for example, a discontinuance, reduction, or impairment of service to 
the carrier-customer ultimately discontinues service to an end user, 
the Commission has found that Sec.  214(a) requires the Commission to 
authorize such a discontinuance.'' It also found that, under the facts 
at issue, a Section 214(a) application and evaluation was necessary 
prior to service discontinuance to determine if the impairment of 
service to the carrier-customer's end users will adversely affect the 
present or future public convenience or necessity. The Commission 
further noted that it would evaluate BellSouth's arguments for approval 
and the impact of such discontinuance on end users in the proceeding on 
that application.
    113. Therefore, we reject arguments that a carrier need not ever 
seek Commission approval for discontinuance of service to a carrier-
customer. As explained above, these arguments ignore the fact-specific 
nature of the conclusions in those proceedings, and they overlook 
BellSouth Telephone. We also find that our clarification is fully 
consistent with and strengthens the Commission's finding in these cases 
that it must distinguish between discontinuances, reductions, or 
impairments of service that will result in the discontinuance, 
reduction, or impairment of service to a community or part of a 
community and those that will not have such an impact on the using 
public. Discontinuance, reduction, or impairment of wholesale service 
is subject to Section 214(a), and prior authorization is required when 
the actions will discontinue, reduce, or impair service to retail 
customers, including carrier-customers' retail end users. In such 
cases, a 214 application is necessary to determine if the impairment of 
service to the carrier-customer's end users will adversely affect the 
present or future public convenience or necessity.
    114. Required Evaluation. We clarify that carriers must assess the 
impact of their actions on end user customers to prevent the 
discontinuance of service to a community without adequate public 
interest safeguards, including notice to affected customers and 
Commission consideration of the effect on the public convenience and 
necessity. Specifically, carriers must undertake a meaningful 
evaluation of the impact of actions that will discontinue, reduce, or 
impair services used as wholesale inputs and assess the impact of these 
actions on end user customers. This meaningful evaluation must include 
consultation directly with affected carrier-customers to evaluate the 
impact on those carrier-customers' end users. If their actions will 
discontinue service to any such end users, Commission approval is 
required. Commission approval is not required, however, for a planned 
discontinuance, reduction, or impairment of service: (i) When the 
action will not discontinue, reduce, or impair service to a community 
or part of a community; or (ii) for any installation, replacement, or 
other changes in plant, operation, or equipment, other than new 
construction, which will not impair the adequacy or quality of service 
provided. Consistent with the text of Section 214(a) and precedent, a 
carrier should not discontinue a service used as wholesale inputs until 
it is able to determine that there will be no discontinuance, 
reduction, or impairment of service to a community or part of a 
community of end users, including carrier-customers' end users, or 
until it has obtained Commission approval pursuant to Section 214(a).
    115. The framework articulated above maintains the distinction 
between discontinuances, reductions, and impairments that affect a 
community or part of a community (i.e., end users) and those that only 
affect carrier-customers. The Commission will also continue to 
distinguish discontinuance of service that will affect service to 
retail customers from discontinuances that affect only the carrier-
customer itself when considering applications for discontinuance of 
wholesale service and determining whether the discontinuance will 
adversely affect the public convenience and necessity. Thus, in 
undertaking this evaluation, the carrier's focus must be on impact to 
the using public. Our clarification therefore ensures that, consistent 
with the statute and precedent, a carrier fully evaluates

[[Page 63345]]

whether there will be a discontinuance, reduction, or impairment of 
service to a community or part of a community, including a carrier-
customer's retail end users. When the carrier can determine with 
reasonable certainty that there will be no such impact on the community 
or part of the community, Commission approval is not required and the 
carrier may proceed.
    116. When assessing whether a carrier's actions will result in 
discontinuance, reduction, or impairment of service to a carrier-
customer's retail end users, consideration of whether replacement 
wholesale services are available to the carrier-customer from other 
sources is warranted. If such replacement services are reasonably 
available to the carrier-customer, retail end users may not necessarily 
experience a discontinuance, reduction, or impairment of service. 
However, we caution that bare speculation will not be sufficient to 
establish the necessary evaluation has occurred, and the carrier must 
have some basis for concluding that such alternatives will not result 
in discontinuance, reduction, or impairment of service to the carrier-
customer's end users. Some commenters assert that retail customers will 
not be affected because adequate replacement or alternative services 
will typically be available independent of the wholesale service being 
discontinued, reduced or impaired. AT&T also argues that competitive 
LECs can ``purchase or provide for itself a substitute,'' for example 
by obtaining bare copper loops and utilizing their own electronics to 
provide service. We caution that such unsupported, blanket assertions 
will not be sufficient to establish the necessary evaluation has 
occurred. Moreover, the fact that there are other carriers in the 
market and other services are, or may be, available to a carrier-
customers' end users does not eliminate a carrier's obligation to seek 
Commission approval and provide notice when its actions will 
discontinue, reduce, or impair service to retail customers. Consistent 
with precedent, any discontinuance, reduction, or impairment of service 
to the using public must be approved by the Commission pursuant to 
Section 214, and the Commission will consider whether there are 
adequate substitutes in the market; in such cases, the existence of 
alternative services ``does not obviate the need for a section 214 
finding.''
    117. For example, many enterprise customers receive nationwide 
voice and other low-speed services from competitive LECs that depend 
upon wholesale voice inputs that combine local loops, switching, and 
transport. If such commercial wholesale platform services are 
discontinued, then this would constitute a discontinuance, reduction, 
or impairment to the enterprise end users if the competitive LEC 
carrier-customer cannot readily obtain a replacement input that would 
allow it to maintain its existing service without reduction or 
impairment. If, on the other hand, the competitive LEC could maintain 
its existing service through use of alternative inputs without material 
difficulty or costs that would necessitate discontinuance, reduction, 
or impairment as to its end users, then the incumbent LEC's action 
would not constitute a discontinuance for which an application is 
necessary to that set of end users. We recognize that rate increases 
alone do not trigger a Section 214 application and that the issue of 
whether rates for a service are just and reasonable is distinct from 
the issue of whether a discontinuance requires Commission approval. 
However, we disagree with commenter assertions that this principle is 
in conflict with our decision here, which addresses a carrier's Section 
214 obligations only when: (1) The carrier ceases to provide service 
used by a carrier-customer as a wholesale input; (2) that 
discontinuance potentially adversely impacts a community; and (3) the 
carrier is not merely implementing a rate change for services that will 
remain available. Other commenters also assert that rate increases that 
simply increase a customer-carrier's costs do not discontinue, reduce, 
or impair service to a community or part of a community and are not a 
basis for requiring Section 214 applications. In these circumstances, 
prior Commission approval may be required if the increased cost to the 
carrier-customer due to the loss of a service input is such that it 
causes the carrier-customer to exit the market or materially and 
negatively change the services offered in the market such that there is 
a discontinuance, reduction, or impairment of service to end users. As 
the Commission has previously stated, ``where the technical or 
financial impact on the carrier customer is such that it would lead to 
discontinuance or impairment of service to its customers, such 
considerations may establish that Section 214 authorization is 
required.'' The Commission further found that the decision in Western 
Union does not preclude ``the use of technical or financial factors in 
determining the applicability of Section 214 to service withdrawals to 
carrier customers'' and ``taken in context with the entire discussion 
of this issue, it is clear that the intent in Western Union was merely 
to exclude technical or financial considerations when their impact was 
limited solely to the carrier customer, and did not affect the carrier 
customer's ability to continue to provide service to its customers.'' 
Accordingly, we find that financial and technical factors affecting the 
carrier-customer may be relevant to determining the impact of a planned 
discontinuance on the retail end-user for purposes of deciding whether 
Section 214(a) authorization is required. Of course, the ultimate test 
always will be the impact on the community or part of community 
affected, not merely on the carrier-customer.
    118. We disagree with commenters who assert that incumbent LECs are 
not in a position to determine whether discontinuing wholesale service 
will discontinue service to competitive LEC retail customers or are 
otherwise unsure of the impact on the community when they seek to 
discontinue wholesale service. These commenters further argue that, if 
we were to adopt the rebuttable presumption proposed in the NPRM, 
carriers will be required to seek Commission approval and file Section 
214 applications for the majority of wholesale discontinuances. As 
noted above, we do not adopt the rebuttable presumption or a ``process 
for rebutting the presumption.'' Rather, we are providing greater 
clarity regarding the scope of the existing duty under Section 214. 
Obtaining approval for a discontinuance is a clear statutory 
obligation. If a carrier is not able to determine whether discontinuing 
wholesale service will discontinue service to its carrier-customers' 
retail end users, that carrier cannot be sure that it is not 
discontinuing service to a community or part of a community and it 
should not discontinue the wholesale service until it is able to make 
such a determination or until it has obtained Commission approval 
pursuant to section 214(a). Further, this argument overlooks avenues of 
information available to carriers about their carrier-customers' 
service. For example, Windstream states that ``[w]hen Windstream orders 
channel terminations for last mile special access services, it must 
specify the end points of those services'' and ``[t]he ILEC has those 
end point locations.'' Windstream further asserts that, ``[w]ithin a 
wire center, the ILEC should be able to determine with a high degree of 
accuracy whether that location is its own switching office, the 
switching office or point of presence of a third

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party carrier, a carrier hotel, or an end user premises.'' In an 
analogous context, CenturyLink states that it is able to notify 
affected telephone exchange service providers of proposed copper 
retirement by email, ``with detailed information, including the Circuit 
ID, cable and pair numbers, and impacted addresses.''
    119. We emphasize that carriers must evaluate whether an 
application is required using all information available, including 
information obtained from carrier-customers. To be a thorough 
evaluation that would support a conclusion that no application is 
required, this must include at a minimum examining all information 
reasonably available to the carrier and reasonable efforts to ascertain 
the impact on retail end users. Nevertheless, we recognize that there 
may be times when a carrier, even after a thorough examination, is 
unable to determine the impact of its actions on a carrier-customer's 
end users. As a result, we clarify that when such information cannot be 
obtained from any sources, including carrier-customers, after an 
exercise of reasonable effort, the carrier may permissibly conclude 
that its actions do not constitute a discontinuance, reduction, or 
impairment of service to a community or part of a community with 
respect to end users of its carrier-customers and need not file an 
application for Commission approval on that basis. We anticipate that 
in an enforcement proceeding concerning whether a carrier discontinued, 
reduced, or impaired service without approval required by Section 
214(a) (whether in response to a complaint from a third party or on our 
own motion), such efforts would be at issue. Some commenters argue that 
the proposed rebuttable presumption would require applications in many 
cases, but the statutory command of Section 214(a) does not depend on 
the frequency with which it applies (and, in any event, more frequent 
submission of applications would tend to show the importance of the 
statute's application in order to ensure that communities are protected 
in the event of a discontinuance, reduction, or impairment of service). 
In any event, more frequent submission of applications would tend to 
show the importance of the statute's application in order to ensure 
that communities are protected in the event of a discontinuance, 
reduction, or impairment of service). As noted above, we do not adopt 
the rebuttable presumption or a ``process for rebutting the 
presumption.'' Rather, we are providing greater clarity regarding the 
scope of the existing duty under Section 214. The Commission will 
continue to address such applications expeditiously. The Commission 
will continue to address such applications expeditiously. We note that 
some commenters argue that this process should be modified, and we seek 
comment on proposed changes to this process in the attached FNPRM.
    120. Our clarification is necessary to ensure that all carriers--
including both incumbent LECs and competitive LECs--meet their Section 
214(a) obligations when a carrier discontinues a service, the 
Commission is able to fulfill its obligations under Section 214(a), and 
carriers have the clarity and certainty needed when carrying out 
technology transitions. Otherwise, the Commission may not be informed 
prior to carrier actions that discontinue, reduce, or impair service to 
retail end users due to the discontinuance, reduction, or impairment of 
a service taken by carrier-customers, actions that potentially 
adversely affect the present or future public convenience and 
necessity. Nothing stated herein excuses carrier-customers from the 
requirements of Section 214(a). For instance, carrier-customers that 
discontinue, reduce, or impair service to retail end users as a result 
of the elimination of a wholesale input must also comply with Section 
214(a) of the Act and the Commission's implementing rules, even if the 
carrier that eliminates the wholesale input also is subject to the same 
requirements. This helps ensure that all affected retail end users are 
properly notified and that the Commission is able to fulfill the duties 
assigned by Congress. The Commission normally will authorize proposed 
discontinuances of service unless it is shown that customers or other 
end users would be unable to receive service or a reasonable substitute 
from another carrier, or that the public convenience and necessity 
would be otherwise adversely affected. Further, carrier-customers and 
retail end users might not receive adequate notice or opportunity to 
object when such actions will discontinue service to carrier-customers' 
retail end users. The clarification that we adopt today does not excuse 
carriers from any existing applicable legal duties, including 
obligations under the Act, and their tariffs and terms of service 
unless and until modified. We therefore recognize that carrier-
customers may learn of changes to tariffed carrier services through 
updated tariff filings. However, we note that not all carrier services 
are tariffed services, and the notice period before the tariff change 
goes into effect is very short. AT&T also argues that the Commission 
need not address any rules regarding notice in this area because the 
network change notice rules, sufficiently cover notice matters and 
contracts and negotiation are sufficient to address early termination 
fees. However, AT&T fails to recognize the distinction between parts 51 
and 63 of our rules. For instance, there are circumstances when a 
carrier will file a Section 214 application under part 63, but not a 
copper retirement notification under part 51. Section 214 does not 
permit carriers to simply avoid filing applications for approval of 
discontinuances because they did not look into the impact of such 
discontinuances. This requirement ensures that retail customers do not 
suffer lapses in service. Waiting until after a carrier discontinues 
service to determine if retail end users had adequate service 
substitutes could adversely affect those retail customers. Commenters' 
arguments that incumbent LECs do not necessarily know how the 
discontinuance of wholesale services will affect the retail customers 
of competitive LECs that rely on those services further fuel our 
concerns that, in the absence of clarifying and establishing a clearly 
articulated obligation on the part of carriers to assess the impact of 
their planned actions on carrier-customers' retail customers, carriers 
may mistakenly assume that their discontinuance, reduction, or 
impairment of wholesale services will not discontinue, reduce, or 
impair service to carrier-customers' retail customers, and carriers 
will discontinue those services without complying with Section 214 and 
the Commission's rules and precedent.
    121. We find AT&T's assertion that carrier-customers should bear 
the burden of persuasion that discontinuance of wholesale service will 
discontinue service to a community to be inconsistent with the language 
of Section 214(a) and precedent, which put the burden on the carrier 
discontinuing service. Carriers must fully evaluate the impact of their 
actions and determine whether Section 214 requires that they file 
applications prior to implementation. The clarification we provide 
acknowledges that carrier-customers have information that will likely 
be useful to carriers when determining the impact of their actions on 
carrier-customers' retail end users. Nevertheless, the statute clearly 
places the compliance obligation on the carrier to seek approval if 
necessary before it proceeds. Evaluating whether approval

[[Page 63347]]

is required is a necessary predicate to fulfilling this obligation. And 
we have consistently held that carrier-to-carrier relationships are 
subject to Section 214(a) and that carriers must obtain Commission 
approval to discontinue service used as a wholesale input by another 
carrier if its actions will discontinue, reduce, or impair service to a 
carrier-customers' retail end users. As a result, the obligation 
properly falls on the carrier seeking to discontinue service. That 
said, as noted above, we recognize a burden of production on carrier-
customers when the discontinuing carrier seeks information relevant to 
making the determination of a discontinuance's impact on end-user 
customers (i.e., customers should respond to carriers if and when they 
are contacted).
    122. Moreover, we disagree with AT&T's assertion that the 
Commission's decision in Graphnet supports a finding that the burden of 
persuasion should be placed on the competitive LECs. In Graphnet, the 
Commission considered a complaint that a carrier violated Section 
214(a) and failed to seek Commission approval prior to reducing or 
impairing service. Although the Commission determined that the carrier 
did not violate Section 214(a) and that the carrier-customer failed to 
show that there would be a discontinuance, reduction, or impairment of 
service to the using public, the Commission did not conclude that 
carriers need not make such a determination regarding the effects of 
their actions when deciding whether Commission approval is necessary 
prior to implementing changes.
    123. That said, we do not agree with commenters that argue we 
should adopt more prescriptive requirements to ensure that carriers 
have met their obligations under Section 214(a). For example, some 
commenters have proposed requirements that: The carrier submit 
documentation or a certification to the Commission identifying and 
providing the basis for its conclusion that the carrier has adequately 
rebutted the presumption, the carrier submit prima facie evidence that 
it has rebutted the presumption, and the carrier provide notice of such 
submissions and opportunity to comment. We are not adopting a 
rebuttable presumption, but rather clarifying the scope of an existing 
duty under Section 214 that functionally leads to the same result: A 
considered decision as to the impact of an action on the community. 
Regardless, we find that it is not necessary for carriers to submit 
information to the Commission when it determines that a Section 214 
application is not needed because its actions do not discontinue, 
reduce, or impair service to the community or part of the community. We 
agree with other commenters that argue that the burdens of the 
suggested obligations would exceed the benefits and we do not want to 
unnecessarily delay technology transitions. The Enforcement Bureau will 
investigate potential carrier violations of Section 214(a) and our 
implementing rules and will pursue enforcement action when necessary. 
End users and carrier-customers will have incentives to monitor 
compliance, and thus we anticipate that any issues of potential 
noncompliance are likely to be brought to our attention. We encourage 
carriers to ensure that they undertake the necessary evaluation in a 
systematic way, and to be diligent and thorough when making these 
determinations. If this approach proves unsuccessful, we will revisit 
this decision.
    124. Our decision today will be less burdensome for carriers than 
the proposed rebuttable presumption and properly balances burdens with 
our goals of protecting the public interest and supporting technology 
transitions. AT&T argues that the proposed rebuttable presumption would 
impose enormous costs on incumbent LECs to the detriment of the public 
and will ``tax the resources of both carriers and the Commission.'' 
AT&T also argues that this will cause unacceptable delay that will 
strand incumbents' resources while the Commission rules on each 
application and will cause adverse effects on the deployment of next-
generation services that will ultimately harm consumers. AT&T seems to 
base its arguments on the erroneous assumption that every 
discontinuance of wholesale service will require Commission approval. 
We have articulated above the circumstances in which an application is 
not required. AT&T further includes the procedural burden of a ``case-
by-case adjudication to rebut the presumption'' in its burden 
assessment. We do not adopt the rebuttable presumption or procedures to 
rebut the presumption and, in fact, we allow the carrier to determine 
through its own internal processes whether Commission approval of its 
actions is necessary. We have also sought to minimize burdens and cost, 
and facilitate technology transitions, by not requiring carriers to 
submit documentation or certifications to the Commission regarding 
their determination that no Section 214 filing is required.
    125. Other Issues. We decline to adopt an irrebuttable presumption 
that discontinuance of a wholesale service necessarily results in a 
discontinuance, reduction, or impairment to end users. Such a 
presumption would require approval even where the carrier establishes 
that there is no actual discontinuance, reduction, or impairment to end 
users. We instead determine that our goals of protecting the public 
interest while facilitating technology transitions are best served by 
emphasizing and applying Section 214 and precedent, with some 
additional clarification and direction for carriers. The approach we 
adopt today better distinguishes situations in which Commission 
scrutiny is warranted under Section 214 because of potential negative 
impacts on retail users from situations in which scrutiny is not 
necessary because there is no similar risk of harm to end users. 
Further, our decision will be less burdensome for carriers than an 
irrebuttable presumption, as it does not presume that Commission 
approval is necessary in every case. We therefore prefer to take the 
more modest approach here that emanates from our longstanding precedent 
and the clear text of the statute.
    126. We find unwarranted the concern that the proposed rebuttable 
presumption would provide an opportunity for incumbent LECs' 
competitors ``to abuse the section 214 process to challenge changes in 
service that have little impact on end-user customers'' and are 
inappropriate for adjudication under Section 214. Under our decision, 
nothing in the Commission's Section 214 process will materially change: 
Carriers must assess the impact of their actions on the community and 
determine whether an application for Commission approval is required, 
the Commission will oversee the 214 process and ensure that any abuses 
are swiftly addressed, and the Commission will not consider objections 
to discontinuance applications that our precedent makes clear are not 
appropriate. The only change is that we have made clear that carriers 
cannot assume their actions have no impact on the community; they must 
undertake some internal process to determine whether a Section 214 
filing is required.
    127. In addressing the proposed rebuttable presumption, some 
incumbent LECs expressed concern that costs and delays associated with 
waiting for Commission approval may impede their plans to move to IP-
based services and assert that this process, and its accompanying costs 
and delays, are not in the public interest. However, concerns about 
delays are misplaced. First, as we make clear, all situations

[[Page 63348]]

will not require a Section 214 filing. Second, even if--after 
undertaking the required evaluation--a carrier concludes it is required 
to file a Section 214 application, that application will be granted 31 
or 60 days after the Commission releases public notice of the 
application filing, pursuant to our existing practices, unless the 
Commission removes the application from streamlined processing. In the 
FNPRM accompanying this Order, we seek comment on whether to alter 
these time periods. Further, our actions are consistent with the 
statutorily mandated goal of ensuring that the public not suffer 
discontinued, reduced, or impaired service without Commission 
oversight.
    128. We reject the suggestion that we should not ``equate the 
robustness of retail competition with the availability of retail 
service'' when interpreting Section 214(a). This sets up a false 
dichotomy. AT&T attempts to suggest that the extent of retail 
competition is beyond the ambit of Section 214, based on the fact that 
``Congress added the `discontinue, reduce, or impair' portion of 
section 214(a) during World War II, when telephone service was still 
provided to communities on a monopoly basis.'' But Congress enacted a 
forward-looking statute that does not tie the relevant evaluation to 
the specific market conditions of the monopoly era. The text of the 
statute simply states that ``[n]o carrier shall discontinue, reduce, or 
impair service to a community'' absent approval. The statute does not 
say, as it could, that ``no carrier shall discontinue, reduce, or 
impair the only service available to a community.'' Moreover, the 
availability of substitutes is explicitly a part of our evaluation of 
whether an application should be granted. Section 214(a) is not written 
to apply only to loss of a monopoly market. In fact, Section 214(a) is 
concerned with discontinuances, reductions, and impairments of any 
service to a community or part of a community. Moreover, we find that 
assessing the effect of discontinuances on competition in the market 
and its resulting effect on consumers further ensures that the 
Commission is able to make the determination required by Section 214 
regarding whether the public convenience and necessity will be 
adversely affected by the discontinuance. Our actions here help to 
protect the public interest and minimize harm to consumers by 
preventing potentially abrupt discontinuances of service and preventing 
harm to competition that would ultimately harm the public. These 
actions also provide clarity and certainty to carriers during this time 
of technology transitions.
    129. We reject ITTA's proposal that we ``adopt a safe harbor to 
limit liability'' pursuant to which ``if the ILEC [or other carrier] 
determines in the process of conducting its evaluation that'' its 
action ``would not impact its own retail end users (assuming, 
hypothetically, that it had retail end users that would be implicated), 
then no discontinuance application would be required.'' Adopting such a 
safe harbor would be tantamount to reversing the clarification that we 
adopt because it would foreclose a carrier's duty to consider the full 
impact of its discontinuance of service on the community of end users 
and improperly permit it to consider only the slice of the community 
that it serves directly.
    130. We decline to adopt the suggestions of commenters to make 
other modifications to the Section 214 process to benefit competitive 
LECs at this time. Thus, we do not interpret the statutory phrase 
``community, or part of a community'' to include platform providers and 
other competitive LECs, in addition to retail customers, as suggested 
by some commenters. Such an interpretation would be inconsistent with 
precedent, and we decline to do so at this time. We continue to believe 
that our touchstone under Section 214(a) is the ultimate impact on the 
community served. Competitive LECs play an important role in providing 
(at least some of) the benefits of competition in enterprise services 
to many communities, but within the framework of Section 214(a) 
ensuring that competitive LECs remain able to compete is a means to 
ensure that our communications landscape serves the public, rather than 
an end in itself.
b. Preserving the Benefits of Competition by Maintaining Reasonably 
Comparable Wholesale Access to Last-Mile Services
    131. Adoption of an interim rule to ensure continued access to 
necessary wholesale inputs will facilitate continued availability of 
existing competing options, reduce disputes, and provide the clarity 
and certainty that all carriers need to accelerate their transition to 
all-IP infrastructure while the Commission grapples with longer-term 
questions. At the same time, adoption of a flexible, balanced framework 
will facilitate prompt transitions by incumbent LECs. Our ultimate goal 
is to ensure that both incumbent and competitive LECs are able to 
transition to IP as promptly and effectively as possible. The central 
issue underlying the arguments of all stakeholders on this issue is 
whether incumbent LECs are subject to substantial competition in the 
provision of the packet-based services that will replace the services 
being discontinued and therefore have every incentive to price 
competitively to retain the wholesale business. Whether and where such 
competitive alternatives exist sufficient to constrain rates, terms, 
and conditions to just and reasonable levels is strongly disputed and 
the subject of complex analysis we currently are conducting in the 
special access proceeding. By the interim rule that we adopt today, 
which will remain in place only until the special access proceeding is 
resolved, we are establishing a balanced, flexible principle that will 
facilitate the ability of carriers and customers alike to navigate the 
transition successfully and ensure that small- and medium-sized 
business, schools, libraries, and other enterprise customers continue 
to enjoy the benefits of competition.
    132. Accordingly and for the reasons discussed below, we adopt an 
interim rule that incumbent LECs that seek Section 214 authority prior 
to the resolution of the special access proceeding to transition to 
all-IP by discontinuing, reducing, or impairing a TDM-based special 
access or commercial wholesale platform service (as specified further 
herein) that is currently used as a wholesale input by competitive 
carriers must as a condition to obtaining discontinuance authority 
provide competitive carriers reasonably comparable wholesale access on 
reasonably comparable rates, terms, and conditions. Although Section 
214 applies to all carriers, the reasonably comparable wholesale access 
condition apply only to the services specified herein. The interim 
condition to which incumbent LECs must commit to obtain discontinuance 
authority will remain in place only for a limited time--specifically, 
the Commission will have adopted and implemented the rules and policies 
that end the reasonably comparable wholesale access interim rule when: 
(1) It identifies a set of rules and/or policies that will ensure 
rates, terms, and conditions for special access services are just and 
reasonable; (2) it provides notice such rules are effective in the 
Federal Register; and (3) such rules and/or policies become effective. 
The Commission's special access proceeding involves a comprehensive 
evaluation of the correct policies for the long-run concerning access 
to a key form of competitive inputs and technology change--special 
access.

[[Page 63349]]

Special access is the non-switched dedicated transmission of voice and 
data traffic between two points. The Commission's Pricing Flexibility 
Order relaxed much of this traditional price regulation for incumbent 
LECs in competitive areas; however, the factors used to determine the 
level of competition an incumbent LEC faces in a given area are the 
topic of much debate and will be a main focus of the special access 
proceedings. As explained below, the reasonably comparable wholesale 
access condition that we adopt applies to two categories of service: 
(1) Special access services at DS1 speed and above; and (2) commercial 
wholesale platform services such as AT&T's Local Service Complete and 
Verizon's Wholesale Advantage. References to wholesale inputs with 
respect to the reasonably comparable wholesale access condition, unless 
stated otherwise, applies to these two categories of services. 
References to wholesale inputs with respect to the reasonably 
comparable wholesale access condition, unless stated otherwise, applies 
to these two categories of services. As detailed below, we evaluate 
whether an incumbent LEC provides reasonably comparable wholesale 
access on reasonably comparable rates, terms, and conditions based on 
the totality of the circumstances, and our evaluation takes into 
account five of the specific factors for which we sought comment in the 
NPRM. The reasonably comparable wholesale access requirement is a 
condition to a grant of a discontinuance application imposed under our 
authority pursuant to Section 214(c) of the Act, as further explained 
below. When an incumbent carrier files an application for approval to 
discontinue, reduce, or impair a TDM-based service, the Commission will 
evaluate whether approval should be granted according to the 
longstanding criteria by which it evaluates such applications. The 
FNPRM proposes articulating specific factors by which the Commission 
will evaluate one of the factors within its multifactor test in the 
context of certain technology transitions. Thus, the reasonably 
comparable wholesale access interim rule applies as an interim 
condition in addition to and separate from the multifactor evaluation 
of whether to grant the application. If the Commission grants approval, 
then by interim rule the incumbent LEC will be subject to the 
reasonably comparable wholesale access requirement as a condition on 
the grant of authority pursuant to Section 214(c) of the Act. To ensure 
clarity for this interim rule and to assist with compliance and 
enforceability, we codify the reasonably comparable wholesale access 
condition in a new subsection to Section 63.71 of our rules. Compliance 
with the reasonably comparable wholesale condition does not excuse an 
incumbent LEC's obligation to comply with other applicable law, 
including applicable provisions of the Act. To ensure clarity for this 
interim rule and to assist with compliance and enforceability, we 
codify the reasonably comparable wholesale access condition in a new 
subsection to Section 63.71 of our rules. Compliance with the 
reasonably comparable wholesale condition does not excuse an incumbent 
LEC's obligation to comply with other applicable law, including 
applicable provisions of the Act.
    133. The Commission received many comments on maintaining wholesale 
access. Competitive LECs, industry and consumer advocacy organizations, 
several state commissions and other government entities, businesses, 
schools, and healthcare facilities support the Commission's tentative 
conclusion to require incumbent LECs that seek Section 214 authority to 
provide competitive carriers wholesale access on equivalent rates, 
terms, and conditions. These parties also generally support the 
principles proposed by Windstream as an appropriate method to evaluate 
whether incumbent LECs satisfy the equivalency requirement for 
wholesale access. Some parties support the Windstream principles with 
modifications, as discussed below. Many incumbent LECs, ITTA, Corning, 
and USTelecom and other industry groups oppose the Commission's 
tentative conclusion and adoption of specific factors to define 
``equivalent wholesale access.'' Incumbent LEC commenters argue there 
is sufficient competition in the wholesale access marketplace that such 
use of the Section 214 discontinuance process is unnecessary and will 
stifle the technology transitions and harm innovation. USTelecom argues 
that the FCC could establish a presumption that incumbent LECs are no 
longer dominant in most or all voice markets nationwide because 
competitive LECs and cable providers control over 45 percent of the 
market for business voice services, attempting to draw a parallel with 
the FCC's finding that there is effective competition for cable 
companies in the market for multichannel video programming (MVPD) 
services because the direct broadband satellite (DBS) providers have 
captured 34 percent of MVPD subscribers. However, we find USTelecom's 
comparison to be inapposite because, despite the relatively similar 
degrees of market share, the DBS providers do not rely on incumbent 
cable operators to provide their products to customers whereas 
competitive LECs rely on the networks and services of incumbent LECs. 
In addition, ``effective competition'' for cable systems is a term of 
art established in the Communications Act via specific tests, and such 
tests do not apply in the context of competition between incumbent LECs 
and competitive LECs.
    134. We recognize the importance of preserving opportunities to 
continue to provide the competition that competitive LECs have brought 
to the enterprise market. Competitive LECs are the primary source of 
competition for wireline communications services purchased by 
enterprise customers, including government, healthcare, schools, and 
libraries. We note that according to the Commission's most recent Local 
Telephone Competition Report, competitive LECs using leased copper and 
fiber facilities provide substantially more business lines than cable 
operators. COMPTEL explains that Ethernet over Copper (EoC) services 
built using DS1s and DS3s as wholesale inputs allow small and medium-
sized businesses to realize many of the same efficiencies of Ethernet 
technology that previously only were available to larger enterprise 
customers. Moreover, XO states that it currently provides EoC from over 
565 local serving offices and to approximately 953,000 buildings. The 
continued existence of these competitive options enhances the ability 
of enterprise customers to choose the most cost-effective option for 
their business or organization.
    135. The record contains compelling comments alleging that 
competitive LECs will be unable to serve their retail customers at 
competitive rates, terms, and conditions without reasonable access to 
incumbent LEC last-mile inputs. As such, their end-user customers could 
potentially face higher communications costs and less competitive 
choice. We seek to avoid the situation where a competitive LEC may 
irrevocably lose business as a result of the technology transitions and 
loss of wholesale inputs even though such wholesale inputs may 
ultimately be made available as a result of the special access 
proceeding. Although some commenters disagree, competitive LECs 
maintain they are still dependent on incumbent LEC last-mile inputs to 
serve small- and medium-sized customers. In particular, competitive 
LECs, which often serve their customers pursuant to long-term 
contracts, question whether they may continue to serve these

[[Page 63350]]

customers if the wholesale input prices that they relied on when 
negotiating their end-user contracts materially increase when incumbent 
LECs discontinue their legacy services, such as DS1 and DS3 special 
access services, and replace them with packet-based services at 
different rates, terms, and conditions. Competitive LECs assert that in 
the majority of cases there are no alternative sources for the 
necessary wholesale inputs, and the incumbent LEC rates for proposed 
replacement services are unreasonably high. Windstream has submitted a 
CostQuest study that it states ``demonstrates that ILECs continue to 
enjoy a dramatic advantage over CLECs in the average cost per building 
of new last-mile fiber deployment'' and that ``[t]hus, competition for 
most business service customer locations likely will continue to depend 
on CLECs' being able to lease ILEC last-mile inputs so that they can 
connect their CLEC fiber backbone facilities to individual customer 
locations.'' As Windstream notes, a replacement of a DS1 service with a 
2 Mbps Ethernet service in Kings Point, Florida would result in an 800 
percent input price increase to Windstream. This type of rate increase, 
far beyond the bounds of reasonable comparability, may result in 
certain geographic areas or certain classes of customers, including 
enterprise consumers, government, healthcare, schools, and libraries 
facing fewer competitive options and potentially higher rates--
ultimately harming the public that these institutions and enterprises 
serve.
    136. We conclude that in the absence of any interim protection, 
competition from competitive LECs could be irrevocably lost depending 
on the answers to key factual questions that we are not yet able to 
answer. To the extent the wholesale prices of replacement packet-based 
services are unreasonably high, competitive LECs may be unable to 
modify the terms of their long-term retail contracts to recover the 
increased cost of the wholesale inputs without losing customers or 
losing revenue and potentially exiting the market, to the detriment of 
its customers and the public they serve. Moreover, in offering new 
contracts to customers, competitive LECs could in these circumstances 
be forced to raise their prices, so a switch to packet-based services 
could weaken the constraint competitive LECs place on incumbent LEC 
market power. These results would delay the positive effects of the 
technology transitions on competition and the economy. Thus, without 
our interim reasonably comparable wholesale access rule, the prices 
competitive LECs must pay for wholesale inputs could substantially 
increase, thereby substantially increasing the costs to their 
customers. We want to ensure that technology transitions continue to 
positively affect competition to the benefit of end-user retail 
customers and the economy at large. Therefore, we conclude we should 
limit potential temporary disruptions by requiring that wholesale 
inputs continue to be offered on reasonably comparable rates, terms, 
and conditions until the Commission develops longer-term policies for 
such services after a full analysis of the special access market.
    137. The reasonably comparable wholesale access interim rule will 
ensure existing competition is not diminished by bridging the gap until 
the Commission's special access proceeding is complete. As stated 
above, data show that competitive LECs currently are the principal 
source of competition to incumbent LECs in the enterprise market. 
Competitive LECs provide broadband services that ``are vital inputs for 
small and medium business and enterprise users, including mobile 
carriers.'' The Commission recognizes the critical role that wholesale 
access to last-mile inputs plays in promoting competition and has 
emphasized the ``technology transitions should not be used as an excuse 
to limit competition that exists.'' In addition, the City of New York 
expressed concern about the cost of replacement services, ``both in its 
role as a consumer advocate and in its role as a large customer.'' Ad 
Hoc Telecommunications Users Committee also expresses concern about 
continued availability of competitive services from the perspective of 
retail customers. Moreover, Public Knowledge, NASUCA and state public 
service commissions also recognize that retail customers will be harmed 
if competitive LECs do not have sufficient access to wholesale inputs. 
We find these arguments persuasive that action is needed.
    138. In the NPRM, we sought comment on whether an ``equivalent'' 
standard of wholesale access or a ``reasonably comparable'' standard 
would best achieve our goals. We now conclude that the ``reasonably 
comparable'' standard best comports with our goals of promoting 
technology transitions by all parties and maintaining competition-
facilitating wholesale access to critical inputs as we continue our 
special access rulemaking proceeding. The approach that we adopt 
facilitates prompt transitions to IP by incumbent LECs because it 
removes issues that may otherwise pose barriers to transitions while 
the special access proceeding remains pending and provides as much 
flexibility as possible consistent with the goal of preserving 
competition. It also reflects our commitment to accelerated and 
seamless technology transitions by preserving the benefits of the 
competition that exists today. Because our goal is to accelerate 
carriers' transition to all-IP infrastructure through creating clear 
rules of the road, we recognize the importance of balancing the goals 
of preserving current levels of competition through interim wholesale 
access requirements pending resolution of the special access 
proceeding, with avoiding unduly costly impediments to competition in 
innovation and the technology transition. We agree with CenturyLink 
that the Commission's role in facilitating the transitions should not 
be to ``perpetuate the specific characteristics (and costs)'' 
associated with the legacy TDM-based services, but instead should be 
focused on ``facilitating a shift to the services and features that 
actual customers demand.'' Our reasonably comparable standard is 
consistent with this goal. We do not require incumbent LECs to maintain 
multiple networks or to forego the advantages of new technologies or 
services to fulfill these requirements; indeed, these competition-
preserving requirements are necessary precisely because we anticipate 
that incumbent LECs will continue to have incentives to transition. 
Accordingly, and for the reasons stated herein, we reject arguments 
that we should adopt an ``equivalent'' wholesale access standard out of 
concern that it would impose potentially unnecessarily high costs on 
incumbent LECs that could unduly deter the pace of transitions and 
thereby diminish the supply or quality of replacement services.
    139. We agree with CenturyLink that incumbent LECs should be 
required to provide no more than a ``reasonably comparable'' 
alternative.'' Our interim rule adopts such an approach. We recognize 
concerns that temporarily basing rates for higher speed IP-based 
services that replace discontinued TDM wholesale inputs on legacy 
rates, terms, and conditions may create disincentives for innovation, 
and we find that a moderated ``reasonably comparable'' approach best 
balances ensuring ongoing competition with minimizing disincentives for 
incumbent LECs.
    140. As stated above, the record convinces us that there is a 
substantial risk that competition could be lost in the absence of the 
interim wholesale access condition that we adopt. However, we recognize 
that we are

[[Page 63351]]

acting based on the best information available at present while we are 
separately conducting a related in-depth analysis, and we adopt a time-
limited interim measure for this reason. We will be able to evaluate 
the state of competition and need for regulation with far greater 
certainty and granularity once we complete our evaluation of the 
special data collection. Incumbent LECs assert that they are subject to 
substantial competition in the provision of packet-based special access 
services and have every incentive to price competitively to retain the 
wholesale business. Verizon asserts that ``it is better for an ILEC if 
. . . consumer[s] take . . . retail service from one of the incumbent 
LEC's wholesale customers--and therefore generates wholesale revenues 
for the ILEC--instead of one of the many available intermodal options 
competitors offer.'' The reasonableness of the incumbent LEC arguments 
depends on the availability of competitive alternatives to constrain 
the discontinuing incumbent LEC's rates, terms, and conditions for 
packet-based special access services to just and reasonable levels. 
Whether and where such competitive alternatives exist is precisely the 
analysis we currently are conducting in the special access proceeding. 
The Commission is in the process of comprehensively evaluating its 
special access rules by analyzing data collected from both providers 
and users of special access services. The deadline for responding to 
the mandatory collection is currently September 25, 2015. Our review of 
such data will provide the objective foundation for a thorough analysis 
of competition in the special access service marketplace. Such analysis 
will support our adoption of the appropriate rules and policies to 
ensure access to critical wholesale inputs at just and reasonable 
rates, terms, and conditions over time and in connection with 
technology changes. Given that we do not yet have the benefit of 
evaluation of the special access data, we find that the flexible 
interim approach that we adopt strikes an appropriate middle course 
that avoids any unduly strong assumptions about the ultimate outcome of 
our evaluation.
    141. If we were to fail to adopt any wholesale access requirement, 
we risk allowing the benefits of competition to be lost irrevocably. At 
the same time, we have come to the conclusion that adopting an 
``equivalent wholesale access'' requirement would go too far in advance 
of determinations yet to be made in the special access proceeding by 
exporting in its entirety the complex tariffed framework currently 
applicable to incumbent LEC DS1 and DS3 services and applying it to 
replacement services. Given the factual disputes that underpin the 
parties' arguments, which we will examine in the special access 
policies. access proceeding, we find that the middle course that we 
adopt today strikes the correct balance between preserving competition 
and promoting transitions by all parties during the interim period of 
factual uncertainty before the resolution of the special access 
proceeding. We agree with the New York PSC that ``legacy policies 
regarding wholesale access and obligations should be reviewed so as not 
to burden ILEC investment in more reliable, robust and innovative 
networks.'' We find that the standard that we adopt accomplishes this 
goal. We also disagree with ITTA that our actions are ``premature'' in 
light of any actions the Commission may take as part of that 
proceeding. We do not attempt to prejudge any findings in the special 
access proceeding in this Order. Rather, by limiting the duration and 
stringency of the equivalent wholesale access requirement proposed in 
the NPRM, we are striking the right balance by taking interim measures 
to ensure that competition does not decrease as incumbent LECs 
discontinue their legacy services while facilitating such transitions 
as the Commission continues to consider long-term special access 
policies. The Commission expects to release a Report and Order 
addressing issues raised in the Data Collection Reconsideration Order. 
We reject as improperly prejudging the final outcome of the special 
access proceeding CenturyLink's proposal that we adopt a ``glide path'' 
pursuant to which ``[r]ates for existing circuits would gradually 
adjust to the market rate for the IP replacement product.''
    142. We reject arguments that adopting a wholesale requirement is 
bad policy. These arguments misconstrue the modest, time-limited nature 
of the requirements we adopt and fail to take into account the 
``reasonably comparable'' standard that we adopt. CenturyLink cautions 
that ``exit approval requirements are among the very most intrusive 
forms of regulation . . . [and] are only appropriate when retail 
customers will be left without any reasonably comparable alternative.'' 
Since our interim rule is specifically designed to ensure the 
availability of reasonably comparable offerings to retail customers by 
ensuring competitors maintain access to reasonably comparable wholesale 
inputs, we find it appropriate to avoid precisely the situation that 
CenturyLink describes as warranting action. As discussed above, it is 
not yet clear whether (or where) competitive alternatives exist that 
are sufficient to constrain a discontinuing incumbent LEC's rates, 
terms, and conditions for replacement services. Absent such 
alternatives, competitive LECs and their customers could be left with 
less choice and higher prices. To ensure technology transitions do not 
harm our core value of competition, prophylactic action is necessary to 
ensure that the competition that exists today is not undermined, at 
least until the Commission completes its full, data-driven evaluation 
of the special access market.
    143. Some commenters further assert that a wholesale access 
condition will ``micromanage'' technology decisions or network 
upgrades. We disagree. As discussed herein, the interim rule the 
Commission has established is flexible in nature and avoids rigid 
prescriptions. It also is limited in duration and scope so as not to 
overburden the incumbent LECs or impede their technology transitions. 
Of note, the condition applies only when an incumbent LEC discontinues 
a TDM special access or commercial wholesale platform service used as a 
wholesale input (as opposed to when it offers that service alongside 
new IP-based services). And within those bounds, this rule will ensure 
that competitive LECs continue to access wholesale last-mile inputs at 
reasonably comparable rates, terms, and conditions during the 
technology transitions while the Commission continues its review of 
special access market.
    144. Some commenters also claim that there is sufficient intermodal 
competition so an interim wholesale access condition is not necessary 
to ensure businesses, government, and other organizations have choice, 
competitive prices, and innovative service offerings. Verizon and 
USTelecom point to the growing broadband market share of mobile and 
cable providers as proof that competitors are successfully serving the 
enterprise market over their own last-mile facilities or wholesale 
arrangements and therefore no additional regulation is necessary. We 
are encouraged by the growth in intermodal competition; however, we do 
not wish to prejudge the special access proceeding's comprehensive data 
evaluation. As discussed above, competitive LECs are dependent on 
incumbent LEC last mile wholesale inputs to provide service to 
enterprise customers, governments, schools and libraries, and other 
organizations. Our goal, as reiterated throughout this Order,

[[Page 63352]]

is to encourage the accelerated technology transitions to IP while we 
continue to evaluate claims about competitiveness in the special access 
market. Our interim reasonably comparable wholesale access condition is 
a light-handed, temporary regulation to avoid transition delays due to 
diminished competition while the Commission conducts an analysis of the 
special access marketplace.
    145. We also decline to adopt a presumption in favor of approving 
discontinuance of a retail service if at least one competitive 
alternative is available. Under our precedent, the Commission evaluates 
a range of factors to determine whether to grant a discontinuance 
application. In evaluating an application for discontinuance authority 
under Section 214(a), the Commission considers five factors that are 
intended to balance the interests of the carrier seeking discontinuance 
authority and the affected user community: (1) The financial impact on 
the common carrier of continuing to provide the service; (2) the need 
for the service in general; (3) the need for the particular facilities 
in question; (4) the existence, availability, and adequacy of 
alternatives; and (5) increased charges for alternative services, 
although this factor may be outweighed by other considerations. As 
explained above, the reasonably comparable wholesale access interim 
rule applies as an interim condition in addition to and separate from 
the multifactor evaluation of whether to grant the application. We do 
not see a reason to deviate from these longstanding and clearly 
articulated criteria by which we evaluate Section 214(a) applications, 
which already take into account whether alternatives are available. 
Moreover, our existing criteria better capture and balance the public 
interest than would CenturyLink's proposal to give the availability of 
a competitive alternative new primacy. Thus, we are not convinced that 
this proposal is in the best interest of the public that consumes 
communications services, which must be our primary consideration. 
Further, at present we grant the vast majority of applications within 
31 or 60 days of release of the Commission's public notice of the 
application filing, and we are not currently convinced that this 
process needs to be further expedited.
    146. Scope of Service Covered. Because of our intent to prevent 
potential irrevocable loss of competition during the pendency of the 
special access proceeding, we apply the reasonably comparable wholesale 
access interim rule to special access services. However, we agree with 
Verizon that applying the reasonably comparable wholesale access 
condition to lower speed special access services is not consistent with 
our efforts to guide and accelerate the technological revolutions that 
are underway. Accordingly, we will only apply the reasonably comparable 
wholesale access condition to special access services at or above the 
DS1 level. While there is evidence in the record that there is a demand 
for commercial wholesale platform services that include voice grade 
circuits equivalent in speed to DS0 level special access service, there 
is no evidence of significant demand for stand-alone DS0 service. That 
is, competitive carriers have not asserted they will be unable to serve 
their retail customers at reasonably comparable rates, terms, and 
conditions without comparable access to incumbent LEC DS0 replacement 
services. We thus do not find on this record that competitive LEC will 
likely irrevocably lose business as a result of the technology 
transitions without access to DS0 special access wholesale services. We 
also note that Verizon asserts that ``the proposed equivalence standard 
would be particularly burdensome for providers seeking to grandfather 
or discontinue DS0 dedicated services'' and cites the example of its 
efforts to provide DS0 equivalent services over fiber in six wire 
centers where it has fully transitioned to a fiber network--noting that 
``necessary equipment to provide a single fiber based DS0 equivalent at 
a customer location can cost more than $30,000.'' We accordingly 
conclude that the purpose of our wholesale access condition--to promote 
technology transitions by maintaining current competition--is satisfied 
if competitors can access replacement services for discontinued TDM-
based special access service at or above a DS1 level.
    147. While we categorically exclude special access DS0s from the 
reasonably comparable wholesale access interim rule, we recognize the 
importance of competition in basic voice service to businesses and 
other enterprises. If an incumbent LEC discontinues a TDM-based 
wholesale voice arrangement that includes DS0 local loops, switching, 
and transport in a commercial unbundled network element platform (UNE-
P) replacement arrangement, such as AT&T's Local Service Complete and 
Verizon's Wholesale Advantage (commercial wholesale platform service), 
under the interim rule the incumbent LEC must offer the replacement 
service at reasonably comparable rates, terms, and conditions. AT&T 
argues that before the Commission can condition the withdrawal of 
commercial wholesale platform services on the availability of 
reasonably comparable replacement services, it must address the basis 
for its jurisdiction over wholesale voice platform services because 
they are local in nature, do not appear in any interstate tariffs, and 
are not classified as Section 251 unbundled network elements. However, 
the interim reasonably comparable condition will apply to commercial 
wholesale platform services only in the limited context of Section 
214(a) discontinuances, thereby obviating AT&T's concern about our 
overall jurisdiction over such services. Large, well-known companies--
including Starbucks, Sears, Bed Bath and Beyond, Panera, Tory Burch, 
Domino's, Simon, and Scholastic--and education, community, and 
governmental organizations--such as YMCA of San Francisco, Scholastic, 
and Washington Metropolitan Area Transit Authority--have filed letters 
with the Commission expressing concern about the lack of competitive 
options if competitive LECs lose access to commercial wholesale 
platform service. Based on the record, we conclude that these IP-
replacements services should be subject to the reasonably comparable 
wholesale access condition so competitive LECs may continue to serve 
multi-location business customers that have modest demands for voice 
service.
    148. Certain competitive LECs depend significantly on commercial 
wholesale platform services. These competitive LECs offer multi-
location businesses voice services at each location by combining value-
added services with underlying TDM-based telephone services purchased 
at wholesale from incumbent LECs. These competitors also argue that the 
combined platform services are necessary as a complete wholesale input 
to serve customers with lower bandwidth needs. We are persuaded by 
evidence in the record that competitive LECs are unable to offer their 
multi-location services without access to the wholesale platform 
replacement service pursuant to agreements that are reasonably 
comparable to the entire wholesale platform agreements for the 
discontinued service with incumbent LECs. Moreover, the information in 
the record does not suggest that the costs of providing this commercial 
wholesale platform replacement service are significantly different than 
those of the TDM-based service. However, with respect to the cost to 
provide DS0 service, Verizon claims ``that necessary

[[Page 63353]]

equipment to provide a single fiber based DS0 equivalent at a customer 
location can cost more than $30,000.'' That said, we reject a strict 
equivalency standard and deem the provision of a substitute on 
``reasonably comparable'' rates, terms, and conditions most appropriate 
to ensure continued opportunities for competition while avoiding 
deterring transitions or adopting an unduly prescriptive rule. 
Moreover, we are not imposing any special access regulation on 
switching or transport elements, as they are not special access 
services. We also are not resurrecting any UNE-P-type regulation on 
these commercial offerings. Rather, we are imposing the interim 
reasonably comparable wholesale access condition on the commercial 
wholesale platform service, which includes not only switching and 
transport but also voice (i.e., DS0 speed) loops. As such, an incumbent 
LEC's IP replacement for its commercial wholesale platform service must 
be offered at reasonably comparable rates, terms, and conditions during 
the pendency of the special access proceeding. This will protect 
against the loss of competition by multi-location enterprise customers 
that rely on low-bandwidth voice services during the pendency of the 
special access proceeding and the FNPRM.
    149. This extension of our reasonably comparable wholesale access 
condition is necessary to further the technology transitions underway. 
Verizon argues that the fact that incumbent LECs offer on a 
``voluntary'' basis commercial wholesale platform service ``is the best 
evidence these customers will continue to have options.'' We note that 
Section 214(a) requires carriers to obtain Commission authority to 
discontinue, reduce, or impair service to a community, or part of a 
community, without respect to whether the service was initially 
provided on a voluntary basis. We are encouraged by the availability of 
these TDM offerings in the marketplace. However, we note that Section 
214(a) requires carriers to obtain Commission authority to discontinue, 
reduce, or impair service to a community, or part of a community, 
without respect to whether the service was initially provided on a 
voluntary basis. Our Section 214 authority addresses AT&T's assertion 
that before including commercial wholesale platform services under the 
revised Section 214 discontinuance regulations, the Commission must 
``address the fact that the ILECs have been providing these services on 
a voluntary basis under commercially negotiated contracts since the 
obligation to provide the unbundled network element platform was struck 
down by the Courts.'' Pursuant to this Section 214 framework, we are 
persuaded that the temporary condition we adopt today for commercial 
wholesale platform services is warranted in order to provide certainty 
and clarity during these stages of the technology transitions, in which 
the perceived, looming sunset of TDM service raises questions as to 
whether end-user customers will continue to receive competitive options 
for their multi-location, low-bandwidth businesses.
    150. In reaching these conclusions, we reject the argument that the 
interim reasonably comparable wholesale access condition ``must be 
limited to DS1 and DS3 special access services.'' With respect to 
special access, we include within the scope of the condition all 
special access services at or above DS1 speed to provide both 
competitive and incumbent LECs with greater flexibility than would be 
available if we limited speed intervals more rigidly. And for the 
reasons stated above, we reject the argument that we should exclude 
commercial wholesale platform services, which provide a crucial input 
for services on which many multi-location businesses depend.
    151. Timing. We also reject the contention that we should establish 
a date certain by which the reasonably comparable wholesale access 
condition will sunset. Under such an approach, competition may be lost 
irrevocably due to the absence of workable wholesale inputs during any 
gap between the end of the condition and the effective date of special 
access rules and/or policies. Further, adoption of a date certain 
sunset increases uncertainty in the market by leaving all parties 
uncertain as to whether their rights and obligations will be altered 
substantially due to the passage of time in the interim of adoption of 
effective special access rules and/or policies. These results would be 
contrary to the purpose of the interim rule that we adopt herein. 
Additionally, adopting a date certain sunset would create an 
undesirable incentive for parties that benefit from the status quo in 
the absence of the condition to attempt to forestall completion of the 
special access proceeding. USTelecom argues that ``the Commission has 
always placed a premium on facilities-based competition over less-
sustainable competition models'' and that ``competing providers would 
be well-served to focus on decreasing their dependence on incumbent 
local exchange carrier legacy facilities rather than slowing down the 
transition'' such that ``[a] hard deadline . . . would ultimately do 
more to ensure the success of the transition than would a wait-and-see 
approach.'' This argument presupposes that a less regulated special 
access market will be preferable for competition in the long run, an 
issue the Commission cannot resolve until it completes its review of 
the relevant data. In the interim, the reasonably comparable standard 
that we adopt best preserves the benefits of the status quo and best 
charts a course between the competing risks of (1) irrevocable loss of 
competition due to the elimination of potentially necessary inputs and 
(2) deterrence of transitions and facility construction due to overly 
prescriptive regulation. In contrast, the standard for termination that 
we adopt protects against the irrevocable loss of competition during 
the full interim period until completion of the special access 
proceeding and provides certainty to all parties regarding their rights 
and obligations until that time. We emphasize that we intend fully for 
the condition to be interim and short-term in nature, and consistent 
with that goal we have adopted a specific and foreseeable endpoint. We 
specifically reject arguments that we should adopt a purportedly 
``interim'' standard that is unmoored from any specific and foreseeable 
endpoint. Moreover, the Commission and its staff is working hard to 
bring the special access proceeding to as rapid a conclusion as 
possible.
    152. We seek comment in the FNPRM about whether or not the 
reasonably comparable wholesale access condition, as it applies to the 
commercial wholesale platform service, should be extended beyond the 
completion of the special access proceeding. Even though commercial 
wholesale platform services are not special access services, the timing 
we adopt is appropriate because the special access proceeding provides 
a foreseeable and definitive point in the future at which we can 
reassess the efficacy and necessity of the requirement that we adopt 
and will entail a comprehensive evaluation of competition pursuant to 
which the Commission intends to adopt a set of rules and/or policies 
that may have wide-ranging effects on telecommunications competition. 
We reject Granite's argument that we should not specify the term for 
the condition as to commercial wholesale platform services at this time 
and instead merely seek comment on the appropriate term. We find that 
this approach would leave a key aspect of our requirements too vague 
and that the lack of predictability inherent in this approach risks 
deterring

[[Page 63354]]

investment. We also reject Granite's argument that we should extend the 
condition ``until such time as the Commission adopts rules governing 
the economic regulations governing incumbent LEC wholesale voice 
services in the pending IP-Enabled [Services] proceeding'' in response 
to the Notice of Proposed Rulemaking issued in 2004 in that proceeding. 
In our view, the special access proceeding provides a more clearly 
foreseeable point at which to reevaluate appropriate duration of the 
reasonably comparable wholesale access interim rule as to commercial 
wholesale platform services.
    153. Legal Authority. We find the Commission has authority under 
Section 214 to condition an incumbent LEC's authorization to 
discontinue TDM-based services by requiring the incumbent LEC to offer 
the IP replacement wholesale service on reasonably comparable rates, 
terms, and conditions and therefore disagree with arguments to the 
contrary. Section 214(c) states the Commission ``may attach to the 
issuance of the certificate such terms and conditions as in its 
judgment the public convenience and necessity may require.'' The 
Commission has the discretion to condition a 214 authorization and 
regularly does so when necessary to protect the public interest. 
Specifically, in the December 2014 Connect America Fund Order, we held 
the Commission ``has discretion to grant a discontinuance request in 
whole or in part, and may attach conditions as necessary to protect 
consumers and the public interest.'' Although the Commission could 
impose the reasonably comparable wholesale access condition on a case-
by-case basis, we find it less administratively burdensome and clearer 
to the parties to include the condition as part of the Section 214 
rules for a limited time until the Commission concludes the special 
access proceeding. We reject AT&T's claim that the Commission is 
obligated to consider the facts of each individual discontinuance 
application to apply the wholesale access condition. As stated above, 
we could adopt the condition on a case-by-case basis but find our 
approach here less administratively burdensome and clearer to parties. 
In a case-by-case analysis, we would find the condition necessary as to 
the class of applications that we identify here in order to ensure the 
technology transitions are successful and promote the public interest 
by maintaining currently levels of competition. Moreover, we find that 
an industry-wide rule is preferable to a case-by-case analysis as the 
reasonably comparable condition is time-limited and will only apply 
when (1) an incumbent LEC has determined that end-user customers will 
experience a discontinuance, reduction, or impairment of service; or 
(2) is unable to conclude that end-user customers will not experience a 
discontinuance, reduction, or impairment of service. In these limited 
circumstances where an incumbent LEC is seeking discontinuance 
authority under Section 214(a), a temporary, industry-wide reasonably 
comparable condition is warranted to encourage technology transitions 
and competitive choice.
    154. Further, we find that our authority under Section 214(a) 
supports adoption of the reasonably comparable wholesale access interim 
rule. As discussed above, consistent with Section 214(a) and precedent, 
a carrier must obtain Commission approval before discontinuing, 
reducing, or impairing a service used as a wholesale input when the 
carrier's actions will discontinue, reduce, or impair service to retail 
end users, including a carrier-customer's retail end users. We find 
that as incumbent LECs transition from TDM-based services to IP, 
competitive LECs may be unable to obtain wholesale replacement services 
at reasonably comparable rates, terms, and conditions, and lack of 
wholesale alternatives will adversely affect its retail customers and 
harm the public interest. And, as discussed above, as a matter of 
statutory interpretation, these retail customers are part of the 
community identified in Section 214(a) and thus it is consistent with 
precedent to address their needs through Section 214 when services are 
discontinued. This is the best interpretation of the relevant statutory 
language and helps us to ensure that technology transitions do not 
thwart the public policy objective, enshrined in the Telecommunications 
Act of 1996, to promote competition. The rule changes we adopt in this 
rulemaking process ensure that Section 214 of the Act continues to be 
implemented in an effective manner throughout the technology 
transitions process. For these reasons, we are not persuaded by the 
argument that the Commission's application of Section 214 conditions to 
wholesale services exceeds its statutory authority.
    155. Some commenters claim that our interpretation of Section 214 
cannot be squared with other provisions of the Act. That is, they claim 
that there are statutory provisions directed to competition between 
carriers, including Sections 201, 202, 251, and 252, and they claim 
that the Commission cannot impute competition provisions into Section 
214. We are not persuaded by this argument. The mere fact that the Act 
contains provisions designed to open markets to competition does not 
preclude the Commission from considering competition in the wholesale 
last-mile input market as part of its Section 214 public interest 
analysis. The wholesale access condition and requirements we adopt in 
this Order ensure that Section 214 is implemented in a way that 
maintains its effectiveness in the technology transition context. 
Moreover, we consider the pro-competition provisions of the 1996 Act as 
a whole, and thus disagree that competition is considered as a factor 
in Sections 251, 201, and 203 but not 214, as competitive access to 
wholesale inputs ultimately affects end users. We further disagree with 
ITTA that ``established law'' prohibits the reasonably comparable 
wholesale access interim condition. The Commission's ``public 
convenience and necessity'' mandate includes pro-competition 
considerations more strongly now than prior to enactment of the 
Telecommunications Act of 1996.
    156. It is not necessary for us to satisfy the substantive and 
procedural requirements of Section 205 to adopt the interim reasonably 
comparable wholesale access condition, contrary to AT&T's assertion 
otherwise. Sections 205 and 214 are distinct and independent sources of 
authority. The DC Circuit has confirmed that ``Section 214(c) does, in 
[the court's] judgment, authorize the Commission to restrict'' Section 
214 applicants outside of the tariffing process ``in derogation of the 
legislative compromise embodied in Sections 203-205'' so long as ``it 
has affirmatively determined that `the public convenience and necessity 
[so] require.' '' AT&T asserts that the 1977 MCI court ``did not 
address, and had no occasion to address, the much different situation 
presented here.'' But of course courts only address the facts in front 
of them. Nonetheless, the decision clearly stands for the proposition 
that Section 214(c) authorizes conditions ``in derogation'' of Sections 
203-205 so long as the Commission determines that the public interest 
so requires. Indeed, on many occasions the Commission has granted 
Section 214 applications conditioned on obligations regarding pricing. 
The condition applies only if an incumbent LEC voluntarily discontinues 
a specified service and offers an IP service in the same geographic 
market(s). Thus, Commission precedent regarding ``voluntary 
transactions'' is relevant to understanding the scope of

[[Page 63355]]

our Section 214(c) authority here. For the reasons articulated herein, 
we affirmatively determine that the public convenience and necessity 
requires imposition of the interim reasonably comparable wholesale 
access condition when certain discontinuance applications are granted, 
and therefore our action comports with Section 214(c) and the Act as a 
whole.
    157. It would be incongruous for Section 205 to restrict our 
authority under Section 214 given the different scope of the two 
provisions--while our Section 205 authority applies to ``any charge, 
classification, regulation, or practice of any carrier or carriers,'' 
the reasonably comparable wholesale access condition applies only if a 
carrier voluntarily discontinues a specified service during the interim 
period. Additionally, we note that a number of the cases cited by AT&T 
specifically support the Commission's authority to take action to 
preserve the status quo on a limited-term basis, and our action today 
preserves certain key aspects of the market status quo pending 
completion of the special access proceeding. AT&T's contentions rest on 
the idea that if we preserve a status quo, it must specifically be the 
``status quo in the Ethernet market.'' But in light of the rapidly 
transitioning marketplace and given our goal of avoiding the 
irrevocable loss of competition, we find that the relevant status quo 
is that of the overall market, encompassing multiple transmission 
technologies. This un-blinkered framework best comports with the 
direction in Section 214(a) and (c) to consider the public convenience 
and necessity. For the same reasons as articulated above with respect 
to Section 205, we reject AT&T's contention that the prior grant to 
AT&T of forbearance for certain non-TDM services poses an 
``insurmountable legal bar[ ].'' Section 214(c) provides sufficient 
authority to condition the voluntary discontinuance of TDM-based 
special access and commercial wholesale platform services, and AT&T 
does not claim that the Commission granted forbearance as to these TDM 
services. Thus it simply is irrelevant whether forbearance has been 
granted as to IP service because the Commission has sufficient 
authority under Section 214 as to the discontinuance of TDM service. To 
conclude otherwise would improperly nullify Section 214(c) by 
suggesting that it must be supplemented by a second source of 
authority. AT&T's arguments presume that Section 205 regulation of IP 
would be, but for forbearance, the only permissible means to achieve 
the policy adopted herein. But it is not nor is it surprising that the 
Commission has available multiple sources of authority to implement a 
policy--the Commission regularly identifies multiple sources of 
authority to justify its actions.
    158. Enforcement. We further find that to continue efficient 
network transitions and avoid possible delays, competitive LECs that 
believe an incumbent LEC has violated the reasonably comparable 
wholesale access condition must be able to seek enforcement action. We 
note the Commission's longstanding precedent that ``the Section 
208(b)(1) deadline shall apply to . . . those matters that would have 
been included in tariffs but for the Commission's forbearance from 
tariff regulation.'' We thus agree with Windstream's argument and find 
that incumbent LECs should not preclude their wholesale customers that 
receive an IP replacement service under the Commission's reasonably 
comparable wholesale access condition from disclosing the rates, terms, 
and conditions to a regulator in the context of an action before the 
Enforcement Bureau. We further agree that an enforcement action subject 
to this prohibition would include formal complaints, informal 
complaints, and any mediation processes, provided the wholesale 
customer seeks confidential treatment of such rates, terms, and 
conditions.
(i) Totality of the Circumstances Evaluation for Reasonably Comparable 
Wholesale Access
    159. Because of the flexible nature of our reasonably comparable 
wholesale access standard, we recognize the need for a similarly 
flexible case-by-case approach to evaluating the reasonable 
comparability of rates, terms, and conditions. This approach also is 
beneficial because it recognizes that circumstances in each market will 
vary, as will the rates, terms, and conditions associated with the 
discontinued service and the replacement service. We therefore adopt a 
``totality of the circumstances'' test for evaluating compliance with 
the ``reasonably comparable wholesale access'' condition. 
Notwithstanding the flexible approach that we adopt, we are cognizant 
of the importance of providing guidance to parties. In the NPRM, we 
sought comment on six specific ground rules to facilitate the IP 
transition by establishing objective standards and clear criteria for 
applying the proposed ``equivalent wholesale access'' standard. 
Specifically, the NPRM sought comment on six principles proposed by 
Windstream to apply as the specific conditions of the proposed 
``equivalent wholesale access'' standard when an incumbent LEC is 
discontinuing a legacy service. Given our adoption of a ``reasonably 
comparable'' standard, we find that Windstream's specific proposals--
which focus on ensuring equivalency--are inappropriate for adoption 
verbatim. However, for the reasons stated below, in evaluating whether 
the reasonably comparable wholesale access requirement is fulfilled, we 
will consider the following questions, adapted from five of 
Windstream's proposals, as well as any other relevant evidence:
     Will Price per Mbps Increase? Will the price per Mbps of 
the IP replacement product exceed the price per Mbps of the TDM product 
that otherwise would have been used to provide comparable special 
access service at 50 Mbps or below? Providing reasonably comparable 
pricing, terms, and conditions should be reasonably achievable by the 
incumbent LECs, as the record is replete with references to the 
efficiencies inherent in IP-based networks and services and the cost 
savings that the incumbent LECs should realize from transitioning away 
from TDM networks and services.
     Will A Provider's Wholesale Rates Exceed Its Retail Rates? 
Will an incumbent's wholesale charges for the replacement product 
exceed its retail rates for the corresponding offering?
     Will Reasonably Comparable Basic Wholesale Voice and Data 
Services Be Available? Will the price (net of any and all discounts) of 
wholesale voice service purchased under a commercial wholesale platform 
service be higher than the price of the existing TDM wholesale voice 
service it replaces, and the price (net of any and all discounts) for 
the lowest capacity level of special access service at or above the 
capacity of a DS1 increase?
     Will Bandwidth Options Be Reduced? Will wholesale 
bandwidth options include the same services retail business service 
customers receive from the incumbent LEC?
     Will Service Delivery or Quality Be Impaired? Will service 
functionality and quality, OSS efficiency, and other elements affecting 
service quality be equivalent or superior compared to what is provided 
for TDM inputs today? Will installation intervals and other elements 
affecting service delivery be equivalent or superior compared to what 
the incumbent delivers for its own or its affiliates' operations?
    160. We adopt these specific questions to provide guidance as to 
what constitutes reasonably comparable

[[Page 63356]]

wholesale access and provide additional guidance on their meaning 
below. We will examine responses to these questions holistically, 
including the evidence concerning the motivation for an incumbent LEC's 
actions. We emphasize that no one question is dispositive, and we will 
evaluate each situation individually based on the totality of the 
circumstances, including but not limited to consideration of these 
questions.
(a) Will price per Mbps increase?
    161. For the reasons set forth below, as part of any evaluation of 
compliance with the reasonably comparable wholesale access condition, 
we would inquire, ``Will the price per Mbps of the IP replacement 
product exceed the price per Mbps of the TDM product that otherwise 
would have been used to provide comparable special access service at 50 
Mbps or below?'' A positive response would weigh toward a conclusion 
that reasonably comparable rates, terms, and conditions are not being 
offered, particularly if there is not a sound reason for a given rate 
increase.
    162. Competitive LECs argue that this inquiry (framed as a 
requirement by Windstream) is necessary to ensure the continued 
availability of wholesale access to last-mile inputs at a cost to 
competitive LECs that will enable them to remain effective competitors. 
In addition, Windstream and Birch et al. assert that many small- and 
medium-sized businesses and multi-location businesses benefit from the 
availability of TDM-based special access services. As discussed above, 
incumbent LECs and other commenters object to a wholesale access 
condition as a whole, but do not address this specific issue. They 
argue that pricing conditions attached to a Section 214 discontinuance 
application are unlawful and would impede deployment of next generation 
services. However, as discussed above, we find that requiring 
reasonably comparable levels of wholesale access to services when 
incumbent LECs transition their legacy networks is necessary to 
preserve the Commission's core value of competition during the pendency 
of the special access proceeding. This specific question that we will 
ask goes to the price relationship between TDM and IP products that is 
the heart of the interim reasonably comparable wholesale access 
condition that we adopt.
    163. We ask this question on a ``price per Mbps'' basis to 
emphasize flexibility for both incumbent and competitive LECs. Unlike 
DS1s, Ethernet services do not have to be offered in 1.5 Mbps 
increments. We agree with CenturyLink and other incumbent LECs that IP-
based technologies allow greater flexibility in speed offerings 
compared to TDM. We wish to preserve this flexibility for incumbent 
LECs so that they can respond to market demands in deciding speeds for 
their Ethernet service offerings. But to preserve this flexibility and 
to avoid rendering the reasonably comparable wholesale access condition 
toothless, it is necessary to ask whether price comparability is 
available across the speeds that the incumbent LEC offers. This 
specific question that we will ask goes to the price relationship 
between TDM and IP products that is the heart of the interim reasonably 
comparable wholesale access condition that we adopt. Moreover, because 
we recognize speed offerings between TDM and IP may vary, incumbent 
LECs are able to offer IP speeds that have no TDM predecessor offering 
at exactly equal speeds. Because it is not possible to calculate rates 
solely on a ``one-to-one'' basis, it is necessary to inquire about the 
rate to be calculated based on a ``per Mbps'' speed of service 
denominator.
    164. We will generally limit our inquiry regarding price per Mbps 
to replacement services at or below 50 Mbps. Based on the record, 50 
Mbps appears to be the closest standard speed offering to a DS3 
offering of 44.736 Mbps. In doing so, we reject arguments by the 
Wholesale DS-0 Coalition, Granite, and others that this inquiry (framed 
as a requirement in the NPRM) should not have a maximum speed. The 
underlying purpose of our reasonably comparable wholesale access 
condition is to preserve for a limited time the opportunities for 
competition that exist today. Inquiring about rate equivalency at any 
speed would go too far because it would create obligations regarding 
price for speeds that are not offered as TDM services and thus not 
related to the discontinuance of TDM services. The vast majority of the 
special access inputs used by competitive LECs are at or below the DS3 
speed level of 44.736 Mbps. The 50 Mbps figure, as the nearest ``round 
number'' above the DS3 speed, is a sensible dividing line that allows 
incumbent LECs to offer tomorrow's speeds without price limitation 
while we inquire as to whether substitutes and near-substitutes for 
today's services remain available to competitive LECs at reasonably 
comparable rates. We find that this bright-line cutoff strikes the best 
balance between preserving the competition that exists and leaving 
incumbent LECs flexibility to invest in and deploy service 
improvements. However, if the only replacement service for a DS3 
special access service available to competitive LECs is higher than 50 
Mbps, then we will inquire about the next-highest-speed offering so 
that DS3 replacement services, which are important for competitive LECs 
to serve their end-user customers, are not excluded from our inquiry.
    165. With respect to special access services, we believe that the 
incumbent LECs' DS1and DS3 generally available tariffed rates at the 
time of discontinuance, including discounts associated with three- and 
five-year term and volume discount plans, are the appropriate interim 
benchmark for measuring the rate relationship between IP-based 
replacement service and the discontinued service during our inquiry and 
will provide an efficient and objective measure for both incumbent LECs 
and their wholesale customers to determine rate comparability. We 
specifically will inquire about the rates, terms, and conditions 
associated with three- and five-year term and term-and-volume discount 
plans as a pricing benchmark given the fact that a significant share of 
special access purchases takes place at those terms and that they 
therefore function as reasonably representative interim pricing 
arrangements. We acknowledge that these pricing options still encompass 
a variety of different pricing arrangements. Rather than attempt to 
address all aspects of these varied arrangements, we will evaluate 
these issues as they arise and leave it to the parties to resolve these 
details in good faith in their negotiations. We expect that, other 
things being equal, we would deem it to be reasonably comparable and 
thus compliant with the wholesale access condition for parties to treat 
existing pricing arrangements as a default setting for rates for 
replacement services. This approach will facilitate technology 
transitions in the interim until the Commission completes its current 
review of special access regulation. To ensure that current levels of 
competition are not curtailed as we facilitate technology transitions, 
we also include within the scope of our reasonably comparable wholesale 
access requirement new customers and existing customers who wish to 
purchase additional services; reasonably comparable rates, terms, and 
conditions must be offered to such entities and not only to existing 
customers as to existing services. Finally, we will inquire whether 
purchasers that make volume commitments under tariffed special access 
discounts are being penalized through loss of a discount or through 
shortfall or early termination penalties

[[Page 63357]]

for purposes of services discontinued as a result of an incumbent LEC's 
technology transition. Similarly, we will inquire whether replacement 
services are counted toward fulfillment of a purchaser's volume 
commitment where TDM services have been discontinued. In both 
instances, it would be inconsistent with the purpose of the reasonably 
comparable wholesale access standard that we articulate if competitors 
suffer changes that are not reasonably comparable because of an 
incumbent LEC's unilateral decision to transition technologies. We find 
that anchoring our evaluation of this question concerning IP rates to 
DS1 and DS3 rates creates predictability, simplicity, and clarity due 
to the prevalence of DS1 and DS3 services on the market today. 
Specifically, under this inquiry, for IP services at or below 12 Mbps, 
we will calculate the TDM benchmark per Mbps rate based on the DS1 TDM 
service it offered in the area; for IP services above 12 Mbps and at or 
below 50 Mbps, we will calculate the TDM benchmark per Mbps based on 
the DS3 service it offered in the area. We adopt a 12 Mbps threshold 
for calculating comparable rates for replacement services based on DS1 
pricing because it most closely replicates the options that exist today 
since it is technologically infeasible to bond DS1 special access 
services to provide more than 12 Mbps in capacity. We inquire about 
replacement services above 12 Mbps based on comparisons to DS3 prices 
since the only viable TDM special access option for delivering more 
than 12 Mbps service to a customer location is a DS3 service. We 
recognize that 12 Mbps is an approximate figure but nonetheless use it 
for convenience.
    166. Wholesale Platform Services Approach. We recognize that this 
initial inquiry, which is evaluated on a per Mbps basis, is not 
directly relevant to commercial wholesale platform services. Thus, with 
respect to pricing for such services, we will focus on the inquiries 
below and not this first inquiry. Nevertheless, for clarity and 
parallelism we set forth here our benchmarking approach for such 
services. In contrast to our inquiry for special access services, we 
adopt an individualized approach to the interim benchmark for our 
inquiry with respect to commercial wholesale platform services. Under 
this approach, we will ask whether the competitive LEC is able to take 
the IP-replacement service at reasonably comparable rates, terms, and 
conditions to the service taken before discontinuance. We agree with 
Granite that, ``[p]arties to wholesale TDM-based voice agreements know 
the prices in their agreements.'' Unlike the special access services 
discussed above that are offered on tariffed rates, commercial 
wholesale platform services are non-tariffed commercial offerings. 
Thus, we adopt an inquiry for these services that is based on market-
negotiated rates, terms, and conditions, as such an inquiry is 
administratively more straightforward to implement.
(b) Will a provider's wholesale rates exceed its retail rates?
    167. For the reasons set forth below, as part of any evaluation of 
compliance with the reasonably comparable wholesale access condition, 
we would inquire, ``Will an incumbent's wholesale charges for the IP 
replacement product exceed its retail rates for the corresponding 
offering?'' A positive response would weigh toward a conclusion that 
reasonably comparable rates, terms, and conditions are not being 
offered, particularly if the rate disparity is significant or if there 
is not a sound reason for any differences in offerings. It remains an 
open question whether there are suburban, remote, rural and other areas 
not served by cable or other modes of service where the only 
competition that exists at the retail level is between an incumbent LEC 
and a competitive LEC that needs wholesale access from the incumbent 
LEC in order to compete at the retail level. We recognize that 
competitive LECs continue to play the most significant role in 
competing with incumbent LECs for enterprise telecommunications 
business. As a result, depending on the competitive state of various 
markets, there may be an incentive for the incumbent to charge higher 
rates at the wholesale level in order to prevent or disadvantage 
competition at the retail level. Whether and where such competitive 
alternatives exist is precisely the analysis we are conducting in the 
special access proceeding. Absent such alternatives, competitive LECs 
and their customers will likely be left with less choice and higher 
prices.
    168. We find that this inquiry is necessary to verify the offering 
of reasonably comparable wholesale access, which ensures that 
competitive LECs are able to compete. We further find that this inquiry 
concerning discrimination includes related costs such as the imposition 
of special construction charges and timing of provisioning. The 
guarantee of competitive wholesale access free of unreasonable 
discrimination has played a bedrock role in facilitating the market 
competition that exists today. Until we are able to reach appropriate 
long-term conclusions about the state of the wholesale access market in 
the special access proceeding, we find it necessary, as an interim 
measure, to inquire whether and to what degree discrimination exists 
between retail and wholesale customers to determine whether reasonably 
comparable rates, terms, and conditions are being offered.
(c) Will reasonably comparable basic wholesale voice and data services 
be available?
    169. For the reasons set forth below, as part of any evaluation of 
compliance with the reasonably comparable wholesale access condition, 
we would inquire, ``Will the price (net of any and all discounts) of 
wholesale voice service purchased under a commercial wholesale platform 
service be higher than the price of the existing TDM wholesale voice 
service it replaces, and the price (net of any and all discounts) for 
the lowest capacity level of special access service at or above the 
capacity of a DS1 increase?'' A positive response to any of these 
questions would weigh toward a conclusion that reasonably comparable 
rates, terms, and conditions are not being offered, particularly if 
there is not a sound reason for a rate increase. We emphasize that this 
pricing-related factor--given that pricing is at the heart of 
commercial negotiations--will be extremely important in our analysis.
    170. Pricing for data services. We will evaluate whether the 
incumbent LECs price their lowest capacity level of IP-based special 
access service providing speeds equal to or greater than a DS1 at 
wholesale rates that exceed the generally available tariffed rates for 
DS1 services at the time of discontinuance, including discounts 
associated with three and five year term and term and volume discount 
plans--and if there is a price discrepancy, we will evaluate its scope. 
We find that this inquiry is important to evaluate whether competitive 
LECs retain access to replacements for DS1 service at reasonably 
comparable rates, terms, and conditions. Incumbent LECs argue that 
imposing specific speed and rate requirements for next generation IP-
based services in parity with TDM-based technology requirements 
interferes with their ability to innovate and compete. We agree for the 
reasons stated above. At the same time, there is significant evidence 
in the record demonstrating a significant continued reliance upon basic 
service levels at this time. Therefore, to evaluate whether reasonably 
comparable rates, terms, and conditions are being offered, we will

[[Page 63358]]

focus with particularity on whether competitive LECs are offered a 
replacement service priced comparably to DS1 service.
    171. This question is distinct from the first question articulated 
above because it is not calculated on a per Mbps basis; we simply ask 
whether the lowest capacity level at or above DS1 to be offered is 
offered at the DS1 rate. This more stringent component of any 
evaluation will help to obviate the risk that an incumbent LEC would 
only offer higher speed services and thereby cutoff any replacement 
similar to DS1s because such a change would be unlikely to constitute 
reasonably comparable rates, terms, and conditions. Without any focus 
on the price relationship of the closest IP equivalent to the current 
pricing for basic service, incumbent LECs could avoid a rate standard 
``by simply offering only high capacity (and therefore higher priced 
wholesale inputs).'' We expect the efficiencies inherent in the 
provision of IP service will ensure that even if incumbent LECs 
maintain rates equal to or below TDM rates for the DS1 replacement 
service, the resulting rates will allow incumbent LECs to recover their 
investment in marginally faster IP services.
    172. Pricing for wholesale voice services. We further will evaluate 
whether incumbent LECs price their replacement wholesale voice service, 
purchased under a commercial agreement, net of any and all discounts, 
greater than the price of the existing TDM wholesale voice service it 
replaces, and if so to what degree. We agree with Granite that both the 
incumbent and competitive LECs know the prices of their commercial 
wholesale platform services, and those prices can be readily applied to 
replacement products. We find this is an appropriate evaluation to 
promote technology transitions by helping to ensure that competitive 
carriers can continue to provide multi-location enterprise services 
pursuant to commercial wholesale platform arrangements.
    173. We find this additional inquiry to evaluate the comparability 
of rates, terms, and conditions for commercial wholesale platform 
arrangements builds on the other inquiries that we adopt and our 
proposals in the NPRM. This additional language to the third question 
emphasizes treatment of ``basic service'' for this important service 
used by competitive LECs to serve a large sector of enterprise 
customers in many locations with low bandwidth needs. The first 
question discussed above is not on point for commercial wholesale 
platform services, since that inquiry is based on a per Mbps offering 
at the DS1 level and above, not a platform offering that includes 
loops, switching and transport. We further clarify that we will ask our 
other specific questions, particularly the fifth question as to whether 
there will be impairment in service quality or delivery, as to these 
commercial wholesale platform services.
(d) Will bandwidth options be reduced?
    174. For the reasons set forth below, as part of any evaluation of 
compliance with the reasonably comparable wholesale access condition, 
we would inquire, ``Will wholesale bandwidth options include the same 
services retail business service customers receive from the incumbent 
LEC?'' A negative response would weigh toward a conclusion that 
reasonably comparable rates, terms, and conditions are not being 
offered, particularly if the range of offerings is significantly more 
limited or if there is not a sound reason for any differences in 
offerings. We recognize that any wholesale access standard could be 
obviated ``by simply offering only high capacity (and therefore higher 
priced wholesale inputs).'' We will therefore ask this question as a 
part of our totality of the circumstances inquiry to facilitate a 
determination of whether rates, terms, and conditions of replacement 
services are reasonably comparable. We find that the existing services 
an incumbent LEC makes available to retail business service customers 
provides baseline from which to conduct our evaluation because 
incumbent LECs find it convenient to provide these services in the 
market. Sprint argues that an incumbent LEC, at a minimum, should be 
required to offer the same variety of speed offerings that it currently 
offers in TDM-based services, ``or the speed offerings of its retail IP 
services, whichever is greater.'' While we agree that we should 
evaluate the relationship between the speeds of IP offerings to retail 
business customers and to competitive LECs, we decline to focus our 
inquiry on whether incumbent LECs retain TDM-based speeds. Such an 
inquiry may improperly lock incumbent LECs into legacy speed offerings, 
which is contrary to the purpose of the flexible reasonably comparable 
wholesale access condition that we adopt.
(e) Will service delivery or quality be impaired?
    175. For the reasons set forth below, as part of any evaluation of 
compliance with the reasonably comparable wholesale access condition, 
we will inquire, ``Will service functionality and quality, OSS 
efficiency, and other elements affecting service quality be equivalent 
or superior compared to what is provided for TDM inputs today? Will 
installation intervals and other elements affecting service delivery be 
equivalent or superior compared to what the incumbent LEC delivers for 
its own or its affiliates' operations?'' A negative response to either 
question would weigh toward a conclusion that reasonably comparable 
rates, terms, and conditions are not being offered, particularly if the 
level of difference is significant or if there is not a sound reason 
for any impairment. We are persuaded that quality of service and 
reliable installation and delivery are important so that wholesale 
customers can continue to compete. Therefore, in considering whether 
reasonably comparable rates, terms, and conditions are available, we 
will examine the factors identified by the question above. As discussed 
herein, competitive LECs are dependent on wholesale inputs to serve 
their retail customers and if the service delivery or quality of the IP 
replacement service is unduly impaired, these carriers likely will be 
unable to provide competitive services to their customers. We note the 
Commission addressed discrimination issues with respect to broadband 
Internet access service in its Open Internet Order, when it declined to 
forbear from Sections 201 and 202 of the Act for broadband Internet 
access service. The Commission found that broadband providers are 
``gatekeepers'' to end-users of broadband Internet access service and 
antidiscrimination provisions are necessary to protect the public 
interest from harmful effects. We find a similar rationale applies in 
the context of the reasonably comparable wholesale access interim rule 
since incumbent LECs control the last-mile inputs competitive LECs need 
to serve their customers and technology transitions may create a 
predicate for discriminatory acts that could harm enterprise consumers 
and organizations.
    176. We agree with competitive LECs and enterprise customers that 
at least in areas where incumbent LECs face competition only from their 
wholesale customers, the incumbent LECs may have an incentive to 
disadvantage their wholesale customers by degrading the quality of the 
wholesale service. Given the inherent efficiencies of IP-based service, 
we do not believe that this component of our inquiry--or the overall 
reasonably comparable wholesale access condition--will be unduly 
burdensome, and we anticipate that the costs of compliance generally 
will be lower than (or at a minimum

[[Page 63359]]

will not exceed) the costs of compliance with similar obligations as to 
TDM services. For instance, AT&T states that this technology transition 
``will `dramatically reduce network costs, allowing providers to serve 
customers with increased efficiencies that can lead to improved and 
innovative product offerings and lower prices.' ''
(f) Other
    177. Although the Commission will consider the questions discussed 
above as part of the totality of the circumstances test, the Commission 
is not limited to these questions in its analysis and may consider 
other evidence. For example, in the 2011 Data Roaming Order, the 
Commission held that it would consider ``other relevant factors in 
determining the commercial reasonableness of the negotiations, 
providers' conduct, and the terms and conditions the proffered data 
roaming arrangements.'' Similarly, here we may consider evidence as to 
these and other issues provided by the incumbent LEC, competitive LEC, 
and other parties.
(ii) Inquiries and Requirements Not Adopted
    178. Backdoor Price Increases. In the NPRM, we sought comment on 
whether, as a part of a wholesale access condition, to prohibit price 
hikes from being effectuated via significant changes to charges for 
network to network interface (NNI) or any other rate elements, lock-up 
provisions, early termination fees (ETFs), special construction 
charges, or any other measure. We agree that it would be a cause for 
concern if incumbent LECs evaded the interim wholesale access condition 
through improper workarounds, and emphasize that our ``reasonably 
comparable'' standard allows us to evaluate the totality of the 
circumstances, including any apparent attempts at evasion. However, 
given the complexity of these issues--which extend significantly beyond 
what otherwise was raised in the NPRM--and given that we are examining 
a number of them in other proceedings, we decline to take any 
additional specific actions on these issues at this time.
    179. Other Requests. We decline to include any rate publication 
requirement in our evaluation of compliance with the reasonably 
comparable wholesale access condition. Birch proposes that the 
Commission require incumbent LECs to ``memorialize all of the rates 
terms, and conditions governing [the incumbent LEC's] Replacement 
Service offerings on its Web site.'' Moreover, Windstream also proposes 
that incumbent LECs publish the TDM rates for the services being 
discontinued. We do not find sufficient evidence to impose publication 
obligations on incumbent LECs. Given the interim nature of the 
reasonably comparable wholesale access condition, we are highly 
skeptical that a publication requirement would carry significant value 
despite its clear costs. In addition, we agree with CenturyLink that 
this requirement would go beyond merely preserving the essence of the 
status quo to create an obligation that does not presently exist for 
TDM services that are discontinued, and therefore is contrary to the 
overall framework and purpose of our reasonably comparable wholesale 
access obligation.
    180. We also decline to include additional requirements to our 
evaluation of the reasonably comparable wholesale access condition. 
Specifically we decline to impose a certification requirement proposed 
by some commenters as it is unclear the timing of certification, and 
requiring certification is inherently backward-looking, i.e., it is 
best suited to confirming that an entity has already complied with a 
regulatory obligation. We find that the condition we adopt to govern 
the discontinuance process is better suited to ensuring forward-
looking, ongoing compliance on an interim basis. And we see no need at 
this time to adopt additional ``belt and suspenders'' methods to ensure 
compliance when doing so imposes costs--even if incrementally small--
when it is not clear that doing so will result in any benefit. For the 
same reasons, we decline to include any audits or specific performance 
metrics. We note that in the FNPRM we seek comment on possible 
revisions to rule 63.71 to provide additional notice to customers that 
use the proposed discontinued TDM service as a wholesale input.

III. Order on Reconsideration

    181. On December 23, 2014, the United States Telecom Association 
(USTelecom) filed a Petition for Reconsideration of the Declaratory 
Ruling (Declaratory Ruling) that accompanied the NPRM. For the reasons 
set forth below, we deny USTelecom's Petition.

A. Background

    182. Along with the NPRM, the Commission adopted the Declaratory 
Ruling, which clarified that when analyzing whether network changes 
constitute a ``discontinuance, reduction, or impairment of service'' 
under Section 214, the Commission applies a ``functional test'' 
encompassing ``the totality of the circumstances.'' The Commission 
found this clarification was necessary in order to terminate an 
industry controversy that arose after Hurricane Sandy. In 2012, 
Hurricane Sandy destroyed much of the legacy network in the barrier 
islands of New York and New Jersey. The following year, Verizon 
proposed to serve affected customers with network facilities and 
services that differed in meaningful ways from those available prior to 
Sandy. Verizon subsequently decided to rebuild its network in Fire 
Island, New York with fiber. Verizon's discontinuance application 
relating to the NJ barrier islands currently is pending. Consumers 
complained the new network may not support certain third-party services 
and devices (fax machines, DVR services, credit card machines, medical 
devices, etc.) that functioned well on the legacy network. Verizon 
argued that because these services and devices were not described in 
its tariff, network changes resulting in their loss could not be 
considered a ``discontinuance, reduction, or impairment of service'' 
under Section 214(a). Verizon points out that ``[s]uch devices and 
services were not, however, offered by Verizon as a `POTS feature or 
service capability' of its telecommunications services.''
    183. In the Declaratory Ruling, the Commission found that ``[t]he 
purpose of a tariff is not to define the full scope of the service 
provided'' and that Congress did not intend Section 214(a) ``to allow 
the carrier to define the scope of `service' via its tariff.'' The 
Commission further noted that ``[t]he value of communications networks 
derives in significant part from the ability of customers to use these 
networks as inputs for a wide range of productive activities,'' and 
``[a]n important factor in this analysis is the extent to which the 
functionality [at issue] traditionally has been relied upon by the 
community.''
    184. In its Petition, USTelecom first asserts that the Declaratory 
Ruling is procedurally infirm because the Commission's ``new'' 
definition of ``service'' constitutes a legislative rule for which a 
notice of proposed rulemaking and comment period is required under the 
Administrative Procedure Act. USTelecom argues that the Commission 
impermissibly expanded the definition of ``service'' because the 
Commission and several courts historically have equated tariff and 
contract terms with the ``service'' offered by providers. Second, 
USTelecom argues the ``new definition [of service] is impermissibly 
vague and,

[[Page 63360]]

instead of terminating a controversy or removing uncertainty, it 
creates unnecessary confusion.''
    185. Several commenters support USTelecom's Petition, arguing that 
the Declaratory Ruling violates the Due Process Clause because it 
substantively changes the application of Section 214(a), and that 
therefore the Commission was required to give notice and an opportunity 
to comment. These commenters also agree with USTelecom's forecast that 
the Declaratory Ruling will result in a ``regulatory guessing game,'' 
and will create particular difficulties for small, high-cost carriers. 
Specifically, they argue carriers have no way of knowing every piece of 
third-party equipment used in connection with offered services, nor can 
carriers presage which third-party incompatibilities the Commission 
will deem requires an application.
    186. Opposing commenters argue the Declaratory Ruling does not 
create a new substantive rule, but rather that the Commission declared 
its interpretation of an existing rule in order to provide necessary 
clarity. They assert that clarifications do not qualify as the type of 
substantive change for which a rulemaking is necessary. Several of 
these commenters note that USTelecom does not cite any instances where 
the Commission interpreted ``service'' differently from how it is 
defined in the Declaratory Ruling. They also assert that the cases 
relied upon by USTelecom are inapposite to its arguments. Finally, 
opposing commenters find USTelecom's concerns about vague and amorphous 
standards disingenuous, noting that the Commission articulated the 
specific concerns giving rise to the Declaratory Ruling--i.e., the 
ability of devices and functionalities such as 9-1-1 location accuracy, 
alarm monitoring, medical alert capabilities, and fax machines to work 
on carriers' networks.

B. Discussion

    187. We find that USTelecom's arguments are meritless. First, the 
Declaratory Ruling did not require a notice and comment period because 
it does not substantively change existing rules. The Commission's 
interpretation only clarified Section 214. Second, the Declaratory 
Ruling is not impermissibly vague. For the reasons set forth below, we 
deny USTelecom's Petition.
1. The Clarification in the Declaratory Ruling Is Not a Legislative 
Rule and Thus Did Not Require a Notice and Comment Period
    188. USTelecom claims that the analysis set forth in the 
Declaratory Ruling is a new legislative rule requiring notice and 
comment under the APA. We disagree. The Declaratory Ruling clarified a 
misconception held by at least one incumbent LEC that an incumbent 
LEC's tariff is the sole source to which the Commission will look in 
determining what constitutes the ``service'' offered by the incumbent 
LEC. Per the Commission's rules, the Commission may issue declaratory 
rulings ``terminating a controversy or removing uncertainty''; 
therefore, its effort at eliminating confusion on this issue was 
entirely appropriate. The clarification in question comports with 
Section 214, with existing Commission regulations, and with Commission 
precedent. As explained in greater detail below, the Declaratory Ruling 
therefore does not constitute a legislative rule.
a. The Commission Has Never Used Tariffs To Exclusively Define the 
Scope of Service
    189. As stated in the Declaratory Ruling, ``the purpose of a tariff 
is not to define the full scope of the service provided.'' Rather, a 
tariff's purpose is to provide ``schedules showing all charges for 
itself and its connecting carriers . . . and showing the 
classifications, practices, and regulations affecting such charges.'' 
The Commission has never stated that its evaluation of whether a 
``service'' is discontinued only examines the service offering detailed 
within a tariff or contract. Nor is there anything in Section 214 or 
the Commission's rules establishing such limited parameters. As stated 
in the Declaratory Ruling, tariffs cannot define the scope of a 
``service'' under Section 214(a) given that there are circumstances in 
which the Commission has forborne from tariffing requirements but in 
which Section 214 obligations remain intact. For example, when AT&T, 
Embarq, and Frontier were granted forbearance from tariffing 
requirements, the Commission stated, in no uncertain terms, that the 
services at issue remained subject to Section 214. USTelecom's 
preference to tether our Section 214 analysis to tariff language would 
yield potentially absurd results. For example, under USTelecom's view, 
any rate increase could be construed as a discontinuance and would 
therefore trigger Section 214's approval process. Such an outcome would 
be inconsistent with Section 214(a) and Commission precedent and is 
precisely why the Commission does not limit its Section 214 evaluation 
to the four corners of the tariff.
b. USTelecom's Reliance on Other Sources Is Misplaced
    190. The Brand X Case is Inapposite. Given that Section 214 
contains no ``clear'' law stating that service is solely defined by 
what a provider offers its customers, USTelecom attempts to find it 
elsewhere. These attempts are unavailing. For example, USTelecom cites 
the Brand X case to support its conclusion that services are strictly 
``defined by the terms of its federal tariff, or in the case of 
telecommunications services that have been detariffed, in its contracts 
with its customers.'' However, in Brand X, neither the Court nor the 
Commission focused on the carrier's tariff or other contractual 
language in defining the service; instead, the Commission (and later 
the Court) explicitly relied on the consumer's point of view when 
determining how to classify the types of services customers receive 
from Internet service providers and whether consumers truly had been 
``offered'' certain services at all. Therefore, Brand X does not 
support USTelecom's argument that the Commission strictly relies upon 
tariff language when defining services.
    191. Filed Tariff Doctrine Is Also Inapplicable. USTelecom next 
turns to the filed tariff doctrine to contend that the tariff `` 
`conclusively and exclusively enumerate[s] the rights and liabilities' 
of the carrier and its customer.'' But it cannot show that the filed 
rate doctrine somehow controls the scope of Section 214(a). First, the 
filed rate doctrine only applies to tariffed offerings. Therefore, it 
is irrelevant to detariffed services under contract. Moreover, it is 
not clear how the filed rate doctrine could ``conclusively and 
exclusively'' control the meaning of Section 214(a) when the Commission 
has forborne from tariffing requirements in circumstances in which 
Section 214(a) still applies. Second, nothing in Section 214 references 
Section 203 or otherwise indicates Section 214 defines ``service'' to 
only include the written terms of a carrier's offering. As stated in 
the Declaratory Ruling, such an interpretation would be contrary to 
Commission precedent. Third, it is reasonable to define ``service'' 
differently for purposes of the filed rate doctrine and the market exit 
framework in Section 214 because they serve different purposes. The 
filed rate doctrine is intended to prevent price discrimination against 
end users by guaranteeing providers offer similarly situated customers 
equivalent terms and conditions. In that context, a rigid focus on the 
specific terms and conditions of the tariff is wholly appropriate.

[[Page 63361]]

However, Section 214 broadly directs the Commission to ensure that 
``neither the present nor future public convenience and necessity will 
be adversely affected'' by discontinuance of service. As one commenter 
noted, the ``totality of circumstances'' standard detailed in the 
Declaratory Ruling does not compromise the filed tariff doctrine's non-
discrimination principle. However, limiting the meaning of the term 
``service'' under Section 214(a) to only what is contained in a 
provider's tariff could cause the public to lose services upon which it 
has come to rely, directly affecting the public convenience and 
necessity so central to Section 214. The two statutes serve distinct 
purposes within the Act, and USTelecom's direct comparisons are 
unconvincing.
c. The Declaratory Ruling Does Not Rise to the Level of Legislative 
Rule Under Longstanding Precedent
    192. USTelecom argues that the Supreme Court's decision in Shalala 
v. Guernsey Memorial Hospital demonstrates that notice and comment were 
required for the Declaratory Ruling. However, the Court in Shalala held 
interpretive rules only require a notice and comment period when they 
adopt positions inconsistent with existing regulations. Because it 
merely confirms and clarifies existing precedent, the Declaratory 
Ruling does not require notice and comment under Shalala. USTelecom 
does not cite a single Commission rule or adjudication adopting a 
definition of ``service'' contradicted by or inconsistent with the 
Declaratory Ruling. Furthermore, much of the precedent USTelecom relies 
upon confirms that the Declaratory Ruling merely removed uncertainty 
and does not rise to the level of a legislative rule.
    193. For example, USTelecom references several D.C. Circuit cases 
where the court distinguishes between interpretative rules and 
legislative rules. Yet in each case USTelecom cites, the court found 
the agency in question departed from previous rules that were well-
defined. In each case, the court found the agency's shift in policy was 
the critical factor transforming what was ostensibly an interpretation 
into a legislative rule. However, in this matter, USTelecom has not 
identified the prior rule or decision that is purportedly inconsistent 
with the Declaratory Ruling because no such rule or decision exists. 
Moreover, the Supreme Court recently held that notice and comment is 
not required even for subsequent updates to interpretative rules. This 
effectively overturned much of the DC Circuit precedent upon which 
USTelecom relies.
    194. The Declaratory Ruling does not contradict any existing 
regulations, nor does it create any new obligations for providers. It 
simply clarifies how the Commission analyzes discontinuance under 
Section 214. USTelecom's inability to identify any rule the Commission 
diverted from distinguishes this matter significantly from the cases 
USTelecom cites and is fatal to the Petition. Indeed, the only changes 
USTelecom identifies are speculative, including ``increase[d] delays'' 
and the prospect of having to seek pre-determinations from the 
Commission regarding what constitutes discontinuance. We conclude these 
concerns are overstated and that the Declaratory Ruling ultimately 
creates less work and eliminates confusion for providers in the midst 
of technology transitions by clarifying the circumstances in which an 
application is required.
    195. As we have explained, USTelecom identified no previous 
Commission rules, interpretations, or adjudications from which the 
Declaratory Ruling deviates so substantively as to require resort to 
the rulemaking process. The Declaratory Ruling did nothing more than 
amplify the meaning of an existing rule. We reject USTelecom's 
assertion that the Declaratory Ruling was procedurally improper.
2. The Clarification Set Forth in the Declaratory Ruling Is Not 
Impermissibly Vague or Ambiguous
    196. We also disagree with USTelecom's contention that the 
Declaratory Ruling is obscure. To the contrary, as explained below, the 
standard set forth in the Declaratory Ruling is straightforward, 
consistent with the statutory language, and consistent with Commission 
precedent. Additionally, for the reasons stated below, we find that 
USTelecom exaggerates carriers' supposed inability to identify the 
relevant products and services subject to Section 214.
    197. Role of Tariff Clear. The Declaratory Ruling clarifies the 
non-dispositive role that a tariff plays in the functional test that it 
articulates. The Declaratory Ruling clearly states this standard: 
``Thus, while a carrier's tariff definition of its own service is 
important evidence of the `service provided,' . . . [a]lso relevant is 
what the `community or part of a community' reasonably would view as 
the service provided by the carrier.'' The functional test in the 
Declaratory Ruling simply clarifies that if relevant evidence indicates 
the ``service provided'' includes features outside of the carrier's 
definition in the tariff, then these features are relevant to the 
evaluation of whether a ``service'' has been discontinued. It bears 
repeating that the Declaratory Ruling does not simply dispense with the 
provider's service description. Tariffs remain a relevant data point in 
the discontinuance analysis. The Declaratory Ruling does not mean 
``every prior feature no matter how little-used or old-fashioned, must 
be maintained in perpetuity'' or that ``every functionality supported 
by a network is de facto a part of a carrier's `service.' '' Finally, 
it does not, as USTelecom fears, mean that the community's perception 
``trump[s] the language of a tariff including any limitations 
therein.'' To the contrary, the Declaratory Ruling only clarifies that 
a tariff is not the end of the inquiry; the community and its 
traditional reliance on a given functionality plays a relevant part in 
the analysis--along with the tariffs.
    198. Consistent With Section 214 Language. The functional test 
articulated by the Declaratory Ruling directly stems from the terms of 
the statute. Congress' regard for the community is clear from Section 
214's statutory language given that: (1) What triggers the prior 
approval provision of Section 214(a) is the discontinuance, reduction, 
or impairment of service ``to a community or part of a community''; and 
(2) the statute is designed to prevent harm to present and future 
``public convenience and necessity.'' Thus, rather than being solely 
fixated on the service provider's viewpoint, the statute itself is 
actually largely centered on impact on the public. While nothing in 
Section 214 indicates Congress intended ``service'' to mean ``as 
defined by the carrier,'' Congress' focus on community perception and 
effects is baked into the text of the statute. Therefore, the 
Commission's incorporation of consumer impact into the discontinuance 
analysis is entirely consistent with and necessary to accomplish the 
purposes of Section 214 and should not present a point of confusion for 
affected parties.
    199. Consistent With Past Commission Actions. Furthermore, the 
Declaratory Ruling's commitment to incorporating community perception 
and community effects into its analysis is consistent with prior 
Commission actions. For example, regarding Section 214, the Commission 
has repeatedly stated: ``In determining the need for prior authority to 
discontinue, reduce, or impair service under Section 214(a), the 
primary focus should be on the end

[[Page 63362]]

service provided by a carrier to a community or part of a community, 
i.e., the using public.'' Additionally, the community-focused 
discontinuance analysis in Section 214 is supported by the Commission's 
approach to common carrier services in other contexts. There have been 
several incidents where the Commission looked beyond the scope of the 
service as defined by the carrier in its tariff to other possible uses; 
therefore, the Declaratory Ruling's focus on the community rather than 
just the tariff language is consistent with past Commission decisions. 
This precedent provides guidance to carriers on when an application 
must be filed.
    200. USTelecom Exaggerates Carriers' Inability To Identify Relevant 
Services and Devices. USTelecom argues that it will be unable to 
determine which relevant services and devices constitute the 
``service'' provided to consumers. However, as one commenter notes, the 
services identified in the Declaratory Ruling are the very services for 
which carriers frequently market and sell additional lines to 
customers. The Declaratory Ruling specifically details the kinds of 
concerns that gave rise to it, including loss of 9-1-1 location 
accuracy and inability to use existing home security, medical 
monitoring, fax machines, credit card billing, DVRs, and other 
services. Finally, as noted in the Declaratory Ruling, Section 
68.110(b) of the Commission's rules currently requires carriers to 
provide notice to customers when changes in the providers' facilities, 
equipment, operations, or procedures ``can be reasonably expected to 
render any customer's terminal equipment incompatible with the 
communications facilities of the provider . . . or require modification 
or alteration of such terminal equipment, or otherwise materially 
affect its use or performance . . . to allow the customer an 
opportunity to maintain uninterrupted service.'' Carriers, including 
USTelecom's members, have access to a database of terminal equipment 
certified as compliant with part 68's requirement that terminal 
equipment not harm carriers' networks. Carriers are therefore well 
aware of many of the forms of terminal equipment in use by their 
customers on TDM networks. They also are well aware of the technical 
specifications of that equipment and whether changes to their 
facilities, etc. will affect the ability of that terminal equipment to 
effectively connect to the carriers' networks. Considering all of this, 
we do not find USTelecom's claims that carriers will be unable to 
navigate the thicket of devices they ``may not even know exist'' to be 
credible.
    201. In sum, the standard for discontinuance review set forth in 
the Declaratory Ruling is clear, consistent with the Commission's past 
actions, and consistent with current provider obligations. We therefore 
reject USTelecom's claims about the supposed vagueness and 
inscrutability of the Declaratory Ruling.

IV. Procedural Matters

A. Ex Parte Presentations

    202. This proceeding shall continue to be treated as a ``permit-
but-disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making ex parte presentations must file a copy of any 
written presentation or a memorandum summarizing any oral presentation 
within two business days after the presentation (unless a different 
deadline applicable to the Sunshine period applies). Persons making 
oral ex parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule 1.1206(b). In proceedings governed by 
rule 1.49(f) or for which the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.

B. Paperwork Reduction Act Analysis

    203. The Report and Order contains new and modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. It will be submitted to the Office of 
Management and Budget (OMB) for review under Section 3507(d) of the 
PRA. OMB, the general public, and other Federal agencies are invited to 
comment on the new or modified information collection requirements 
contained in this proceeding. In addition, we note that pursuant to the 
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 
U.S.C. 3506(c)(4), we previously sought specific comment on how the 
Commission might further reduce the information collection burden for 
small business concerns with fewer than 25 employees. In this present 
document, we require incumbent LECs to: (1) Include in their copper 
retirement notices to interconnecting carriers the information 
currently required by Section 51.327(a) and a description of any 
changes in prices, terms, or conditions that will accompany the planned 
changes; (2) provide direct notice of planned copper retirements to 
interconnecting entities within the affected service area at least 180 
days prior to the planned implementation date, except when the 
facilities to be retired are no longer being used to serve customers in 
the affected service area, in which case notice must be provided at 
least 90 days prior to the planned implementation date; (3) provide 
notice of planned copper retirements to the public utility commission 
and to the governor of the state in which the network change is 
proposed, to the Tribal entity with authority over the Tribal lands in 
which the network change is proposed, and to the Secretary of Defense, 
with such notice to be provided at least 180 days prior to the planned 
implementation date, but only 90 days prior to the planned 
implementation date when the facilities to be retired are no longer 
being used to serve customers in the affected service area; (4) work in 
good faith with interconnecting entities to provide information 
necessary to assist them in accommodating planned copper retirements 
without disruption of service to their customers; (5) provide clear and 
conspicuous direct notice via electronic mail or postal mail to retail 
customers of planned copper retirements where the retail customer is 
within the service area of the retired copper and only where the 
retirement will result in the involuntary retirement of copper loops, 
with such notice to be

[[Page 63363]]

provided at least 180 days prior to the planned implementation date for 
non-residential retail customers and at least 90 days prior to the 
planned implementation date for residential retail customers; (6) 
include in notice to retail customers information to enable the retail 
customer to make an informed decision as to whether to continue 
subscribing to the service to be affected by the planned network 
changes, including (i) the information required by Section 51.327(a) 
other than Section 51.327(a)(5), (ii) a statement that the customer 
will still be able to purchase the existing service with the same 
functionalities and features, except that if the statement would be 
untrue, then the incumbent LEC must include a statement identifying any 
changes to the service(s) and the functionality and features thereof, 
and (iii) a neutral statement of the various service options that the 
incumbent LEC makes available to retail customers affected by the 
planned copper retirement; and (7) file a certificate of service within 
90 days before a retirement certifying their compliance with the 
requirements imposed by our network change disclosure rules pertaining 
to copper retirement. We have assessed the effects of these 
requirements and find that any burden on small businesses will be 
minimal because: (1) The rules remain notice-based; (2) incumbent LECs 
already must provide direct notice of planned copper retirements to 
many interconnecting entities; (3) the method of transmission of the 
notice required by the rules matches previously existing requirements 
for notice to interconnecting telephone exchange service providers; (4) 
the expanded content requirement for notices to interconnecting 
entities is a narrow and targeted extension of the existing requirement 
to provide notice of the ``reasonably foreseeable impact of the planned 
changes'' already required by Section 51.327(a) of the Commission's 
rules; (5) incumbent LEC commenters, including small, rural LECs, 
assert that they already engage in significant outreach to their retail 
customers when implementing copper retirements; (6) the rules require 
incumbent LECs to include in their direct notices to retail customers 
one neutral statement of the various service options that the incumbent 
LEC makes available to retail customers affected by the planned copper 
retirement, with no other consumer education or outreach requirements; 
(7) limit the requirement of direct notice to retail customers within 
the service area of the retired copper and only where the retirement 
will result in the involuntary retirement of copper loops; and (8) the 
rules do not require direct notice to retail customers when the copper 
facilities being retired are no longer in use in the affected service 
area.

C. Congressional Review Act

    204. The Commission will send a copy of this Report & Order and 
Order on Reconsideration to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act.

D. Final Regulatory Flexibility Analysis

    205. As required by the Regulatory Flexibility Act of 1980 (RFA), 
an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into 
the NPRM. The Commission sought written public comment on the possible 
significant economic impact on small entities regarding the proposals 
addressed in the NPRM, including comments on the IRFA. The Commission 
did not receive any comments on the NPRM IRFA. Pursuant to the RFA, a 
Final Regulatory Flexibility Analysis is set forth below. This Final 
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

E. Need for, and Objectives of, the Final Rules

    206. The fixed communications networks in this country are 
undergoing several technology transitions that are rapidly bringing 
innovative and improved services to consumers and the marketplace. As a 
nation, we are steadily moving from voice networks based on time-
division multiplexed (TDM) services running on copper, to all-Internet 
Protocol (IP) multimedia networks running on a range of physical 
infrastructures. At the same time, the success of these technology 
transitions depends on the technologically-neutral preservation of 
longstanding principles embodied in the Communications Act, including 
those of competition and consumer protection. Towards that end, this 
Order adopts rules and policies to preserve our pro-consumer and pro-
competition policies as communications facilities and services change. 
In addition to ensuring that interconnecting carriers and consumers are 
adequately informed when copper facilities are retired and that 
carriers comply with Section 214(a) and obtain Commission approval 
prior to discontinuing service used by carrier-customers as a wholesale 
input if the carrier's actions will discontinue, reduce, or impair 
service to a community or part of a community, this Order revises the 
Commission's Section 214 discontinuance rules to preserve competitive 
access to wholesale inputs during the pendency of our special access 
proceeding.
    207. Copper Retirement. The Order finds that the pace of copper 
retirement has accelerated over the last few years and that this rapid 
pace of retirements, combined with the deterioration of copper networks 
that have not been formally retired, has necessitated changes to ensure 
that our rules governing copper retirement promote competition, which 
will in turn serve the public interest. Thus, the foreseeable and 
increasing impact that copper retirement is exerting on competition and 
consumers warrants revisions to the Commission's network change 
disclosure rules to allow for greater transparency, opportunities for 
participation, and consumer protection. The Order revises these rules 
to require incumbent LECs planning copper retirements to provide direct 
notice to all entities within the affected service area that directly 
interconnect with their network and to include in their network change 
disclosures not only the information already required by Section 
51.327(a) of the Commission's rules, but also a description of any 
changes in prices, terms, or conditions that will accompany the planned 
changes. Additionally, incumbent LECs must provide the notice to 
interconnecting entities--or each entity that directly interconnects 
with the incumbent LEC's network--at least 180 days prior to the 
planned implementation date, except when the facilities to be retired 
are no longer being used to serve customers in the affected service 
area. In instances where facilities are no longer in use, the Order 
instead adopts the baseline 90-day period of the Commission's prior 
rules as the applicable notice period. After the Commission receives 
notice of the planned copper retirement from the incumbent LEC, it will 
issue a public notice of the retirement. It is at that point that the 
180-day period begins to run. We find that receipt of the additional 
information and the extended notice period adopted in the Order will 
allow interconnecting entities to work more closely with their 
customers to ensure minimal disruption to service as a result of any 
planned copper retirements. These rules will also help ensure that 
competitive LECs are fully informed about the impact that copper 
retirements will have on their businesses. We further believe that by 
retaining a time-limited notice-based process, we can better ensure 
that our rules strike a sensible balance between meeting the needs of 
interconnecting

[[Page 63364]]

carriers and allowing incumbent LECs to manage their networks.
    208. In light of the extended notice period adopted in the Order, 
we discard the objection procedures. However, we find that incumbent 
LECs should be required to act in good faith to provide additional 
information to interconnecting entities upon request when such 
information is necessary to accommodate the copper retirement without 
disruption of service to the interconnecting entity's customers. When 
an entity that directly interconnects with an incumbent LEC's network 
requests that the incumbent LEC provide additional information where 
necessary to allow the interconnecting entity to accommodate the 
incumbent LEC's changes with no disruption of service to the 
interconnecting entity's end user customers, we require incumbent LECs 
to work with such requesting interconnecting entities in good faith to 
provide such additional information. This good faith communication 
requirement will ensure that interconnecting entities still may obtain 
the information they need in order to accommodate the planned copper 
retirement without disruption of service to their customers that they 
would have been entitled to seek through the objection procedures. We 
further believe that this requirement strikes an appropriate balance 
between the needs of interconnecting carriers for sufficient 
information to allow for a seamless transition and the need to not 
impose overly burdensome notice requirements on incumbent LECs.
    209. The Order also revises Section 51.331 of our rules by deleting 
paragraph (c), which provides that competing service providers may 
object to planned copper retirements by using the procedures set forth 
in Section 51.333(c). The Order further revises Section 51.333 to 
remove those provisions and phrases applicable to copper retirement. We 
find that consolidation of all notice requirements and rights of 
competing providers pertaining to copper retirements in one 
comprehensive rule provides clarity to industry and customers alike 
when seeking to inform themselves of their respective rights and 
obligations.
    210. The Order modifies our network change disclosure rules to 
require direct notice to retail customers of planned copper 
retirements. Copper retirements often affect consumers, and consumers 
need to understand how they will be affected. We believe that the 
network change disclosure rules adopted in the Order will help to 
safeguard the most vulnerable populations of consumers against any 
confusion and will ensure that they are informed about how they will be 
impacted by any copper retirements. Thus, under the updated rules 
adopted in the Order, incumbent LECs will be required to provide direct 
notice of planned copper retirements to all of their retail customers 
within the affected service area(s), but only where the copper to the 
customer's premises is to be removed (e.g., where a customer is 
required to receive service via fiber-to-the-premises). We believe 
limiting the notice requirement to retirements involving involuntary 
replacement of copper to the customer's premises limits notice to 
circumstances in which customers are most likely to be affected, 
thereby avoiding confusion and minimizing the costs of compliance. We 
find that modifying the proposed class of recipients in this way will 
make it easier for incumbent LECs to comply with their notice 
obligations by removing the need for them to make an independent 
determination regarding whether particular customers will require new 
or modified CPE or whether particular customers will be negatively 
impacted by the planned network change. We believe that the adopted 
rule will provide customers with sufficient clarity and will ensure 
that none are inadvertently excluded from the pool of recipients. The 
modified rule extends copper retirement notice requirements not just to 
consumers, but also to non-residential end users such as businesses and 
anchor institutions.
    211. The NPRM proposed requiring that copper retirement notices to 
retail customers provide sufficient information to enable the customer 
to make an informed decision as to whether to continue subscribing to 
the service to be affected by the planned network changes, including 
the information required by Section 51.327(a), as well as statements 
notifying customers that they can still purchase existing services and 
that they have a right to comment, and advising them regarding timing 
and the Commission's process. In this Order, we modify the proposal in 
the NPRM in four ways. First, we adopt the additional requirement that 
the mandatory statements in the notice must be made in a clear and 
conspicuous manner. As stated above, the record reflects that a number 
of consumers are confused when copper retirements occur, so clear and 
conspicuous provision of information will help to remedy that issue. To 
provide additional guidance, we clarify that a statement is ``clear and 
conspicuous'' if it is disclosed in such size, color, contrast, and/or 
location that it is readily noticeable, readable, and understandable. 
In addition, the statement may not contradict or be inconsistent with 
any other information with which it is presented; if a statement 
materially modifies, explains or clarifies other information with which 
it is presented, then the statement must be presented in proximity to 
the information it modifies, explains or clarifies, in a manner that is 
readily noticeable, readable, and understandable, and not obscured in 
any manner; and hyperlinks included as part of the message must be 
clearly labeled or described. We adopt this detailed definition of 
``clear and conspicuous'' to provide guidance to help ensure that 
customers will understand the required notice and to provide certainty 
to industry about our requirements. And to streamline the filing and 
reduce the burden on incumbent LECs, we decline to require that the 
notice include: (1) Information required by Section 51.327(a)(5), 
because that primarily requires provision of technical specifications 
that are unlikely to be of use to most retail customers; (2) a 
statement regarding the customer's right to comment on the planned 
network change, because, as discussed below, we decline to include in 
the updated rule we adopt today a provision regarding the opportunity 
to comment on planned network changes; and (3) a statement that 
``[t]his notice of planned network change will become effective'' a 
certain number of days after the Federal Communications Commission 
(FCC) releases a public notice of the planned change on its Web site'' 
because this statement is likely to be unnecessarily confusing and 
because 47 CFR 51.327(a)(3), which we incorporate as to customer copper 
retirement notices, already requires disclosure of the implementation 
date of the planned changes.
    212. The Order further requires LECs to include in copper 
retirement notices to retail customers a neutral statement of the 
various service options that the LEC makes available to retail 
customers affected by the planned copper retirement and that incumbent 
LECs are not subject to any additional obligations. There is a risk 
that without a clear, neutral message explaining what copper retirement 
does and does not mean, some consumers will easily fall prey to 
marketing that relies on confusion about the ability to keep existing 
services. The Order also requires that the notice be free of any 
statement attempting to encourage a customer to purchase a service 
other

[[Page 63365]]

than the service to which the customer currently subscribes. However, 
this last prohibition applies only to copper retirement notices 
provided pursuant to the Commission's network change disclosure rules 
and not to any other communication. This neutral statement requirement 
and limited prohibition will better enable retail consumers to make 
informed choices regarding their services and will give them the 
necessary tools to determine what services to purchase without swaying 
them towards new or different offerings.
    213. The rules adopted in the Order allow incumbent LECs to use 
written or electronic notice such as postal mail or email to provide 
notice to retail customers of a planned copper retirement. This 
requirement should be sufficient to ensure that retail customers 
receive notice, without imposing unnecessary additional burdens on 
carriers. The rules adopted in the Order also require that incumbent 
LECs provide notice to non-residential retail customers at least 180 
days prior to the planned implementation date. This should allow non-
residential retail customers sufficient time to evaluate the impact of 
the planned network change on the service they would continue to 
receive and whether they need to seek out alternatives. Moreover, the 
rules require that incumbent LECs provide residential retail customers 
at least ninety-days' notice of planned copper retirements. We conclude 
that this notice period is appropriate for residential retail 
customers, to whom earlier notice may be confusing and potentially 
forgotten over a long period of time.
    214. The Order requires carriers to send notice of proposed copper 
retirements to state authorities (the governor and the state PUC), 
federally recognized Tribal nations within their Tribal lands, and the 
Secretary of the Department of Defense, and that this notice occur 
contemporaneously with notice to interconnecting entities. This rule 
will help ensure that states and Tribal governments are fully informed 
of copper retirements occurring within their respective borders. Given 
the increased cybersecurity risks posed by IP-based networks, the 
Department of Defense should also be kept informed of copper 
retirements.
    215. The Order further requires that no later than ninety (90) days 
before the date that the notices of copper retirement are deemed 
approved, incumbent LECs must file a certification identifying the 
proposed changes, the name and address of each entity upon which 
written notification was served, and a copy of the written notice 
provided to affected retail customers, among other information. 
Monitoring compliance with the rules adopted in the Order would be 
difficult without incumbent LECs confirming that they have complied. 
Thus, requiring this information is necessary to ensure compliance with 
our rules and will assist greatly with enforcement.
    216. Given the frequency and scope of copper network retirement, it 
is essential that industry participants and stakeholders alike have a 
clear understanding of what retirement entails so that the public is 
properly informed of network changes. To the end, the Order expands the 
definition of copper retirement to encompass the ``removal or disabling 
of copper loops, subloops, or the feeder portion of such loops or 
subloops, or the replacement of such loops with fiber-to-the-home loops 
or fiber-to-the-curb loops.'' Copper retirement also includes de facto 
retirement, i.e., failure to maintain copper loops, subloops, or the 
feeder portion of such loops or subloops that is the functional 
equivalent of removal or disabling.
    217. Service Discontinuance. Section 214(a) of the Act mandates 
that the Commission ensure that the public is not adversely affected 
when carriers discontinue, reduce, or impair services on which 
communities rely. To that end, the Order clarifies that a carrier must 
obtain Commission approval before discontinuing, reducing, or impairing 
a service used as a wholesale input when the carrier's actions will 
discontinue, reduce, or impair service to end users, including a 
carrier-customer's retail end users. The Order also clarifies that a 
carrier should not discontinue a service used as a wholesale input 
until it is able to determine that there will be no discontinuance, 
reduction, or impairment of service to end users, including carrier-
customers' end users, or until it obtains Commission approval. We find 
that this clarification is necessary to fortify the Commission's 
ability to fulfill its critical statutory role in overseeing service 
discontinuances under Section 214 of the Act. This clarification is 
thus designed to protect retail customers from the adverse impacts 
associated with discontinuances of service, and to ensure that service 
to communities will not be discontinued without advance notice to 
affected customers and Commission authorization. The Order clarifies 
that carriers must assess the impact of their actions on end user 
customers to prevent the discontinuance of service to a community 
without adequate public interest safeguards, including notice to 
affected customers and Commission consideration of the effect on the 
public convenience and necessity. This clarification is necessary to 
ensure that carriers meet their Section 214(a) obligations to obtain 
approval for a discontinuance. Absent such clarification, the 
Commission may not be informed prior to carriers' actions that 
discontinue, reduce, or impair service to retail end users, actions 
that potentially adversely affect the present or future public 
convenience and necessity. Moreover, without such clarification, 
carrier-customers and retail end users might not receive adequate 
notice or opportunity to object when such actions will discontinue 
service to carrier-customers' retail end users.
    218. The Order also adopts an interim rule that incumbent LECs that 
seek Section 214 authority prior to the resolution of the special 
access proceeding to discontinue, reduce, or impair a TDM-based service 
that is currently used as a wholesale input by competitive carriers 
must as a condition to obtaining discontinuance authority provide 
competitive carriers reasonably comparable wholesale access on 
reasonably comparable rates, terms, and conditions. The interim 
condition to which incumbent LECs must commit to obtain discontinuance 
authority for a TDM-based service will remain in place only until the 
Commission will have adopted and implemented the rules and policies 
that end the reasonably comparable wholesale access interim rule when 
(1) it identifies a set of rules and/or policies that will ensure 
rates, terms, and conditions for special access services are just and 
reasonable; (2) it provides notice such rules are effective in the 
Federal Register; and (3) such rules and/or policies become effective. 
The Commission will evaluate whether a carrier provides reasonably 
comparable wholesale access on reasonably comparable rates, terms, and 
conditions based on the totality of the circumstances, and its 
evaluation includes specifically whether the carrier is complying with 
five specific questions articulated in the Order. The reasonably 
comparable wholesale access condition that we adopt applies to two 
categories of service: (1) Special access services at DS1 speed and 
above and (2) commercial wholesale platform services such as AT&T's 
Local Service Complete and Verizon's Wholesale Advantage.
    219. Establishing the reasonably comparable wholesale access 
requirement is necessary to protect the competition that exists today 
for the provision of telecommunications services to small-and medium-
sized

[[Page 63366]]

businesses, schools, libraries, and other enterprise customers. This 
requirement is carefully tailored to preserve incentives for investment 
for incumbent LECs while maintaining opportunities for competitive LECs 
to provide the services that customers demand on a limited-term basis 
until the Commission completes its evaluation of the special access 
market or markets for TDM and IP based services and adopts rules and 
policies to ensure services are available at just and reasonable rates, 
terms, and conditions. An interim rule that provides both providers and 
their wholesale customers with a balanced approach will facilitate 
transitions and preserve the benefits of competition during the 
pendency of the special access proceeding.
    220. Service by competitive carriers that depend on wholesale 
inputs offers the benefits of additional competitive choice to an 
enormous number of small and medium-sized businesses, schools, 
government entities, healthcare facilities, libraries, and other 
enterprise customers. The Order takes these actions to preserve such 
competition and ensure that this competition continues to thrive as the 
ongoing technology transitions occur.

F. Summary of Significant Issues Raised by Public Comments To Response 
to the IRFA

    221. There were no comments filed that specifically addressed the 
rules and policies proposed in the IRFA. To the extent we received 
comments raising general small business concerns during this 
proceeding, those comments are addressed throughout the Order.

G. Description and Estimate of the Number of Small Entities To Which 
the Rules Will Apply

    222. The RFA directs agencies to provide a description of, and 
where feasible, an estimate of the number of small entities that may be 
affected by adopted rules. The RFA generally defines the term ``small 
entity'' as having the same meaning as the terms ``small business,'' 
``small organization,'' and ``small governmental jurisdiction.'' In 
addition, the term ``small business'' has the same meaning as the term 
``small-business concern'' under the Small Business Act. A ``small-
business concern'' is one which: (1) Is independently owned and 
operated; (2) is not dominant in its field of operation; and (3) 
satisfies any additional criteria established by the SBA.
    223. The majority of the rules and policies adopted in the Order 
will affect obligations on incumbent LECs and, in some cases, 
competitive LECs. Other entities, however, that choose to object to 
network change notifications for copper retirement under our new rules 
may be economically impacted by the regulations adopted in this Order.
1. Total Small Businesses
    224. A small business is an independent business having less than 
500 employees. Nationwide, there are a total of approximately 28.2 
million small businesses, according to the SBA. Affected small entities 
as defined by industry are as follows.
2. Wireline Providers
    225. Wired Telecommunications Carriers. The SBA has developed a 
small business size standard for Wired Telecommunications Carriers, 
which consists of all such companies having 1,500 or fewer employees. 
According to Census Bureau data for 2007, there were 3,188 firms in 
this category, total, that operated for the entire year. Of this total, 
3,144 firms had employment of 999 or fewer employees, and 44 firms had 
employment of 1,000 employees or more. Thus, under this size standard, 
the majority of firms can be considered small.
    226. Local Exchange Carriers (LECs). Neither the Commission nor the 
SBA has developed a size standard for small businesses specifically 
applicable to local exchange services. The closest applicable size 
standard under SBA rules is for Wired Telecommunications Carriers. 
Under that size standard, such a business is small if it has 1,500 or 
fewer employees. According to Commission data, 1,307 carriers reported 
that they were incumbent local exchange service providers. Of these 
1,307 carriers, an estimated 1,006 have 1,500 or fewer employees and 
301 have more than 1,500 employees. Consequently, the Commission 
estimates that most providers of local exchange service are small 
entities that may be affected by the rules adopted in the Order.
    227. Incumbent Local Exchange Carriers (Incumbent LECs). Neither 
the Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The closest 
applicable size standard under SBA rules is for the category Wired 
Telecommunications Carriers. Under that size standard, such a business 
is small if it has 1,500 or fewer employees. According to Commission 
data, 1,307 carriers reported that they were incumbent local exchange 
service providers. Of these 1,307 carriers, an estimated 1,006 have 
1,500 or fewer employees and 301 have more than 1,500 employees. 
Consequently, the Commission estimates that most providers of incumbent 
local exchange service are small businesses that may be affected by 
rules adopted pursuant to the Order.
    228. We have included small incumbent LECs in this present RFA 
analysis. As noted above, a ``small business'' under the RFA is one 
that, inter alia, meets the pertinent small business size standard 
(e.g., a telephone communications business having 1,500 or fewer 
employees), and ``is not dominant in its field of operation.'' The 
SBA's Office of Advocacy contends that, for RFA purposes, small 
incumbent LECs are not dominant in their field of operation because any 
such dominance is not ``national'' in scope. We have therefore included 
small incumbent LECs in this RFA analysis, although we emphasize that 
this RFA action has no effect on Commission analyses and determinations 
in other, non-RFA contexts.
    229. Competitive Local Exchange Carriers (Competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant Service Providers, 
and Other Local Service Providers. Neither the Commission nor the SBA 
has developed a small business size standard specifically for these 
service providers. The appropriate size standard under SBA rules is for 
the category Wired Telecommunications Carriers. Under that size 
standard, such a business is small if it has 1,500 or fewer employees. 
According to Commission data, 1,442 carriers reported that they were 
engaged in the provision of either competitive local exchange services 
or competitive access provider services. Of these 1,442 carriers, an 
estimated 1,256 have 1,500 or fewer employees and 186 have more than 
1,500 employees. In addition, 17 carriers have reported that they are 
Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 
or fewer employees. In addition, 72 carriers have reported that they 
are Other Local Service Providers. Of the 72, seventy have 1,500 or 
fewer employees and two have more than 1,500 employees. Consequently, 
the Commission estimates that most providers of competitive local 
exchange service, competitive access providers, Shared-Tenant Service 
Providers, and other local service providers are small entities that 
may be affected by rules adopted pursuant to the Order.
    230. Interexchange Carriers. Neither the Commission nor the SBA has 
developed a small business size standard specifically for providers of 
interexchange services. The appropriate size standard under SBA rules 
is for the

[[Page 63367]]

category Wired Telecommunications Carriers. Under that size standard, 
such a business is small if it has 1,500 or fewer employees. According 
to Commission data, 359 carriers have reported that they are engaged in 
the provision of interexchange service. Of these, an estimated 317 have 
1,500 or fewer employees and 42 have more than 1,500 employees. 
Consequently, the Commission estimates that the majority of IXCs are 
small entities that may be affected by rules adopted pursuant to the 
Order.
    231. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a size standard for small businesses specifically applicable 
to Other Toll Carriers. This category includes toll carriers that do 
not fall within the categories of interexchange carriers, operator 
service providers, prepaid calling card providers, satellite service 
carriers, or toll resellers. The closest applicable size standard under 
SBA rules is for Wired Telecommunications Carriers. Under that size 
standard, such a business is small if it has 1,500 or fewer employees. 
According to Commission data, 284 companies reported that their primary 
telecommunications service activity was the provision of other toll 
carriage. Of these, an estimated 279 have 1,500 or fewer employees and 
five have more than 1,500 employees. Consequently, the Commission 
estimates that most Other Toll Carriers are small entities that may be 
affected by the rules and policies adopted pursuant to the Report and 
Order.
3. Wireline Providers
    232. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the Census Bureau has placed wireless firms within this new, 
broad, economic census category. Under the present and prior 
categories, the SBA has deemed a wireless business to be small if it 
has 1,500 or fewer employees. For the category of Wireless 
Telecommunications Carriers (except Satellite), census data for 2007 
show that there were 1,383 firms that operated for the entire year. Of 
this total, 1,368 firms had employment of 999 or fewer employees and 15 
had employment of 1,000 employees or more. Since all firms with fewer 
than 1,500 employees are considered small, given the total employment 
in the sector, we estimate that the vast majority of wireless firms are 
small.
    233. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. The SBA has developed a small business size 
standard for Wireless Telecommunications Carriers (except Satellite). 
Under the SBA small business size standard, a business is small if it 
has 1,500 or fewer employees. According to Commission data, 413 
carriers reported that they were engaged in wireless telephony. Of 
these, an estimated 261 have 1,500 or fewer employees and 152 have more 
than 1,500 employees. Consequently, the Commission estimates that 
approximately half or more of these firms can be considered small. 
Thus, using available data, we estimate that the majority of wireless 
firms can be considered small.
4. Cable Service Providers
    234. Cable and Other Program Distributors. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for this category, which is: All such firms having 1,500 or fewer 
employees. To gauge small business prevalence for these cable services 
we must, however, use current census data that are based on the 
previous category of Cable and Other Program Distribution and its 
associated size standard; that size standard was all such firms having 
$13.5 million or less in annual receipts. According to Census Bureau 
data for 2007, there were a total of 3,188 firms in this category that 
operated for the entire year. Of this total, 2,684 firms had annual 
receipts of under $10 million, and 504 firms had receipts of $10 
million or more. Thus, the majority of these firms can be considered 
small and may be affected by rules adopted pursuant to the Order.
    235. Cable Companies and Systems. The Commission has also developed 
its own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers, nationwide. Industry data 
shows that there are 660 cable operators in the country. Of this total, 
all but eleven cable operators nationwide are small under this size 
standard. In addition, under the Commission's rules, a ``small system'' 
is a cable system serving 15,000 or fewer subscribers. Current 
Commission records show 4,945 cable systems nationwide. Of this total, 
4,380 cable systems have less than 20,000 subscribers, and 565 systems 
have 20,000 or more subscribers, based on the same records. Thus, under 
this standard, we estimate that most cable systems are small entities.
5. All Other Telecommunications
    236. The Census Bureau defines this industry as including 
``establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. 
Establishments providing Internet services or Voice over Internet 
Protocol (VoIP) services via client-supplied telecommunications 
connections are also included in this industry.'' The SBA has developed 
a small business size standard for this category; that size standard is 
$32.5 million or less in average annual receipts. According to Census 
Bureau data for 2007, there were 2,383 firms in this category that 
operated for the entire year. Of these, 2,346 firms had annual receipts 
of under $25 million and 37 firms had annual receipts of $25 million or 
more. Consequently, we estimate that the majority of these firms are 
small entities that may be affected by our action.

H. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    237. The Order proposes a number of rules and policies that will 
affect reporting, recordkeeping, and other compliance requirements.
    238. Copper Retirement. The Order revises our network change rules 
to require incumbent LECS planning copper retirements to include in 
their network change disclosures not only the information already 
required by Section 51.327(a) of the Commission's rules, but also a 
description of any changes in prices, terms, or conditions that will 
accompany the planned changes. Additionally, these providers must 
provide direct notice to interconnecting entities within the affected 
service area at least 180 days prior to the planned implementation 
date, except when the facilities to be retired are no longer

[[Page 63368]]

being used to serve customers in the affected service area. In 
instances where facilities are no longer in use, the Order adopts a 90-
day period as the applicable notice period.
    239. The Order also requires that an entity that directly 
interconnects with an incumbent LEC's network may request that the 
incumbent LEC provide additional information where necessary to allow 
the interconnecting entity to accommodate the incumbent LEC's changes 
with no disruption of service to the interconnecting entity's end user 
customers. Incumbent LECs are required to work with such requesting 
interconnecting entities in good faith to provide such additional 
information.
    240. The Order further modifies our network change disclosure rules 
to require direct notice to retail customers of planned copper 
retirements. Under the updated rules adopted in the Order, incumbent 
LECs will be required to provide direct notice of planned copper 
retirements to all of their retail customers within the affected 
service area(s). The modified rule extends copper retirement notice 
requirements not just to consumers, but also to non-residential end 
users such as businesses and anchor institutions.
    241. The Order requires that copper retirement notices to retail 
customers provide sufficient information to enable the customer to make 
an informed decision as to whether to continue subscribing to the 
service to be affected by the planned network changes, including the 
information required by Section 51.327(a)--with the exception of the 
information required by Section 51.327(a)(5)--as well as statements 
notifying customers that they can still purchase existing services.
    242. The Order further requires LECs to include in copper 
retirement notices to retail customers a neutral statement of the 
various service options that the LEC makes available to retail 
customers affected by the planned copper retirement. The Order also 
requires that the notice be free of any statement attempting to 
encourage a customer to purchase a service other than the service to 
which the customer currently subscribes. However, this last prohibition 
applies only to copper retirement notices provided pursuant to the 
Commission's network change disclosure rules and not to any other 
communication. The rules adopted in the Order allow incumbent LECs to 
use written or electronic notice such as postal mail or email to 
provide notice to retail customers of a planned copper retirement.
    243. The Order also requires carriers to send notice of proposed 
copper retirements to state authorities (the state governor and PUC) 
and the Secretary of the Department of Defense, as well as affected 
Tribal entities.
    244. In tandem with their public notice, incumbent LECs must file a 
certification identifying the proposed changes, the name and address of 
each entity upon which written notification was served, and a copy of 
the written notice provided to affected retail customers, among other 
information.
    245. The Order also expands the definition of copper retirement to 
encompass the ``removal or disabling of copper loops, subloops, or the 
feeder portion of such loops or subloops, or the replacement of such 
loops with fiber-to-the-home loops or fiber-to-the-curb loops.'' Copper 
retirement also includes de facto retirement, i.e., failure to maintain 
copper loops, subloops, or the feeder portion of such loops or subloops 
that is the functional equivalent of removal or disabling.
    246. Service Discontinuance. The Order clarifies that a carrier 
must obtain Commission approval before discontinuing, reducing, or 
impairing a service used as a wholesale input when the carrier's 
actions will discontinue, reduce, or impair service to end users, 
including a carrier-customer's retail end users. The Order also 
clarifies that a carrier should not discontinue a service used as a 
wholesale input until it is able to determine that there will be no 
discontinuance, reduction, or impairment of service to end users, 
including carrier-customers' end users, or until it obtains Commission 
approval.
    247. The Order clarifies that carriers must assess the impact of 
their actions on end user customers to prevent the discontinuance of 
service to a community without adequate public interest safeguards, 
including notice to affected customers and Commission consideration of 
the effect on the public convenience and necessity. Specifically, 
carriers must undertake a meaningful evaluation of the impact of 
actions that will discontinue, reduce, or impair services used as 
wholesale inputs, using all information available, including 
information obtained from carrier-customers, and assess the impact of 
these actions on end user customers, including carrier-customers' end 
users. If their actions will discontinue service to any such end users, 
Commission approval is required.

I. Steps Taken To Minimize the Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    248. The Order also adopts an interim rule that incumbent LECs that 
seek Section 214 authority prior to the resolution of the special 
access proceeding to discontinue, reduce, or impair a TDM-based service 
that is currently used as a wholesale input by competitive carriers 
must as a condition to obtaining discontinuance authority provide 
competitive carriers reasonably comparable wholesale access on 
reasonably comparable rates, terms, and conditions. The interim 
condition to which incumbent LECs must commit to obtain discontinuance 
authority for a TDM-based service will remain in place only until the 
Commission will have adopted and implemented the rules and policies 
that end the reasonably comparable wholesale access interim rule when: 
(1) It identifies a set of rules and/or policies that will ensure 
rates, terms, and conditions for special access services are just and 
reasonable; (2) it provides notice such rules are effective in the 
Federal Register; and (3) such rules and/or policies become effective. 
The Commission will evaluate whether a carrier provides reasonably 
comparable wholesale access on reasonably comparable rates, terms, and 
conditions based on the totality of the circumstances, and its 
evaluation includes specifically whether the carrier is complying with 
five specific questions articulated in the Order. The reasonably 
comparable wholesale access condition that we adopt applies to two 
categories of service: (1) Special access services at DS1 speed and 
above and (2) commercial wholesale platform services such as AT&T's 
Local Service Complete and Verizon's Wholesale Advantage.
    249. The RFA requires an agency to describe any significant 
alternatives that it has considered in reaching its proposed approach, 
which may include (among others) the following four alternatives: (1) 
The establishment of differing compliance or reporting requirements or 
timetables that take into account the resources available to small 
entities; (2) the clarification, consolidation, or simplification of 
compliance and reporting requirements under the rules for such small 
entities; (3) the use of performance rather than design standards; and 
(4) an exemption from coverage of the rule, or any part thereof, for 
such small entities.
    250. The Commission is aware that some of the rules adopted in this 
Order will impact small entities by imposing costs and administrative 
burdens. For this reason, in reaching its final conclusions and taking 
action in this proceeding, the Commission has taken a number of 
measures to minimize or eliminate the costs and burdens generated by 
compliance with the adopted regulations.

[[Page 63369]]

    251. Although the Order adopted new requirements for the copper 
retirement notice process, the Commission declined to require that the 
descriptions of the potential impact of the planning changes be 
specific to each interconnecting carrier to whom an incumbent LEC must 
give notice. Such a requirement would impose an unreasonable burden on 
incumbent LECs, as would the requirement that copper retirement notices 
include information regarding impacted circuits and wholesale 
alternatives, another alternative step that we considered before 
eventually discarding. The requirements in new Section 51.332 of our 
rules are sufficient protection to interconnecting carriers without the 
need for further regulation. The Commission also declined to adopt a 
particular required format for copper retirement notices, since such a 
specified format runs the risk of not covering all aspects of each 
provider's copper retirement plans.
    252. In light of the extended notice period adopted in the Order, 
the Commission eliminated the objection procedures. The Order also 
consolidates all notice requirements and rights of competing providers 
pertaining to copper retirements within one comprehensive rule in order 
to provide clarity to small entities when seeking to inform themselves 
of their rights and obligations.
    253. Although we considered a proposal that, for a network change 
to qualify as a copper retirement as opposed to a service 
discontinuance, a carrier must present the same standardized interface 
to the end user as it did when it used copper, we ultimately concluded 
that this requirement was unnecessary. We find that this proposal would 
go far beyond the mandate of Section 68.110(b) of the Commission's 
rules, which speaks to the effect of changes in facilities, equipment, 
operations, or procedures on customer's terminal equipment.
    254. We similarly declined to require incumbent LECs to provide 
competitive providers with an annual forecast of copper retirements. 
This type of information can constitute some of an incumbent LEC's most 
competitively sensitive information, and such an advance disclosure 
requirement may risk putting them at a competitive disadvantage. 
Moreover, the information contained in a forecast can change over time 
as circumstances change, and we are thus skeptical of the value of such 
a requirement. We also declined to adopt a requirement that incumbent 
LECs establish and maintain a publicly available and searchable 
database of all their copper plant. It is not clear based on the record 
that such a database would be feasible or cost-effective, and such a 
requirement could impose an expensive and potentially duplicative 
burden.
    255. The Order also modified the notice to retail customers rules 
proposed in the NPRM in order to minimize the burden they impose on 
incumbent LECs, primarily by eliminating a requirement that incumbent 
LECs undertake consumer education efforts in connection with planned 
copper retirements, among several other requirements proposed as part 
of the NPRM. Under the rules adopted by the Order, incumbent LECs are 
required to provide only one neutral statement to consumers and will 
not be subject to any additional obligations with regards to the notice 
to retail customers requirement.
    256. While the NPRM proposed requiring direct notice to all retail 
customers affected by the planned network change, the rules adopted in 
the Order require incumbent LECs to provide direct notice of planned 
copper retirements to all of their retail customers within the affected 
service area(s). We believe that modifying the class of recipients in 
this way will make it easier for incumbent LECs to comply with their 
notice obligations by removing the need for them to make an independent 
determination regarding whether particular customers will require new 
or modified CPE or whether particular customers will be negatively 
impacted by the planned network change.
    257. While incumbent LECs are required to provide direct notice of 
planned copper retirements to all of their retail customers within the 
affected service area(s), this notice need not include the information 
required by Section 51.327(a)(5) of our rules, nor a provision 
regarding the opportunity for customers to comment on planned network 
changes. Section 51.327(a)(5) requires provision of technical 
specifications that are unlikely to be of use to most retail customers. 
Aside from the neutral statement requirement, we decline to adopt any 
further content requirements with regards to the direct notice of 
planned copper retirements. We do not believe it is necessary or 
appropriate to require more than this in the context of a copper 
retirement that does not rise to the level of a discontinuance, 
reduction, or impairment of service for which a carrier would need to 
seek Commission authorization.
    258. The Order allows incumbent LECs to use written or electronic 
notice such as postal mail or email to provide notice to retail 
customers of a planned copper retirement. We find that this requirement 
should be sufficient to ensure that retail customers receive such 
notice without imposing unnecessary additional burdens on carriers. And 
because we retain the notice-based process for copper retirement 
network change disclosures, we find that there is little reason to 
require incumbent LECs to allow customers to reply directly to any 
email notices.
    259. We decline to adopt a rural exemption to the notice rule. 
While the rules necessarily impose some burden on carriers, that burden 
is not greater for rural LECs. We also decline to impose different 
notice requirements for network upgrades, network downgrades, and the 
complete abandonment of facilities. We do not believe such 
differentiation is necessary, and would impose a greater burden on 
incumbent LECs. We also refuse to require proof of notice to be 
acknowledged by individual customers before allowing changes. Such a 
requirement would unfairly penalize incumbent LECs for the failure of 
their customers to act.
    260. We also decline to adopt a proposal to revise the network 
change disclosure rules to provide the public with the opportunity to 
comment on planned network changes. We find that avenues to communicate 
with the Commission are sufficient and formalizing a right to comment 
is not needed. And while the Order requires notice of copper 
retirements to be given to state authorities and the Department of 
Defense, as well as Tribal entities with proposed copper retirements 
within their borders, it declines to adopt this same notice requirement 
for other network change notifications. There is a lack of sufficient 
support in the record to support such a requirement, which would place 
an increased regulatory burden on incumbent LECs and other small 
entities.
    261. We decline to establish a process for situations where a 
network is damaged after a natural disaster and a carrier decides to 
permanently replace that network with a new technology. The 
discontinuance and network change notification requirements proposed in 
the FNPRM and adopted in the Order are responsive to this concern 
without the need for additional regulation. Additionally, such a 
process would require incumbent LEC submission of service metrics with 
the Commission that are beyond the scope of this proceeding.
    262. The Order also reduces the regulatory burden on small entities 
by

[[Page 63370]]

declining to mandate the sale of copper facilities that an incumbent 
LEC intends to retire and/or establish for ourselves a supervisory role 
in the sale process (although the sale of such facilities is 
encouraged). Commission oversight of sales could be intrusive, costly, 
and a potential barrier to technology transitions.
    263. While the Order requires carriers to undertake a meaningful 
evaluation of the impact of actions that will discontinue, reduce, or 
impair services used as wholesale inputs and to obtain Commission 
approval if their actions will discontinue service to end users, 
Commission approval is not required for a planned discontinuance, 
reduction, or impairment of service (1) when the action will not 
discontinue, reduce, or impair service to a community or part of a 
community, or (2) for any installation, replacement, or other changes 
in plant, operation, or equipment, other than new construction, which 
will not impair the adequacy or quality of service provided.
    264. The Order declines to adopt requirements to ensure that 
carriers have properly rebutted the proposed presumption, including a 
requirement that the carrier submit documentation or a certification to 
the Commission identifying and providing the basis for its conclusion 
that the carrier has adequately rebutted the presumption, among other 
proposed obligations. The burdens of such an obligation would exceed 
the benefits. Thus, the adopted rules and policies will be less 
burdensome for carriers than the proposed rebuttable presumption, and 
we allow carriers to determine through their own internal processes 
whether Commission approval of their actions is necessary. We have also 
sought to minimize burdens and cost by not requiring carriers to submit 
information to the Commission when they determine that a Section 214 
application is not needed because their actions do not discontinue, 
reduce, or impair service to the community or part of the community.
    265. We further decline to adopt an irrebuttable presumption that 
discontinuance of a wholesale service necessarily results in a 
discontinuance, reduction, or impairment to end users. Such an approach 
would be highly burdensome for carriers. We also decline to adopt a 
presumption in favor of approving discontinuance of a retail service if 
at least one competitive alternative is available. We see no reason to 
deviate from our longstanding and clearly articulated criteria by which 
we evaluate Section 214(a) applications, which already take into 
account whether alternatives are available.
    266. To ensure clarity and assist small entities with regulatory 
compliance, we codify the reasonably comparable wholesale access 
condition adopted in the Order in a new subsection to Section 63.71 of 
our rules.
    267. Although we considered obligating carriers to provide 
``equivalent'' wholesale access on ``equivalent'' rates, terms, and 
conditions, we ultimately found it preferable to impose a more flexible 
``reasonably comparable'' standard. We also imposed a time limit on the 
requirement that we adopted. This flexible standard and time-limited 
approach minimizes the regulatory burden on incumbent LECs while 
advancing the Commission's goal of preserving competition and promoting 
technology transitions. We also declined to adopt as mandatory 
requirements any of the six objective requirements for which we sought 
comment in the NPRM. Rather, we adopt a flexible ``totality of the 
circumstances'' approach that takes into account versions of five of 
these six factors as questions but does not prescribe hard rules. We 
adopt this balanced approach to provide parties necessary flexibility.
    268. Although the NPRM sought comment on whether, as a part of a 
wholesale access condition, to prohibit price hikes from being 
effectuated via significant changes to charges for network to network 
interface (NNI) or any other rate elements, lock-up provisions, early 
termination fees (ETFs), special construction charges, or any other 
measure, we decline to adopt such a prohibition in the Order. We find 
that the steps taken are sufficient without necessitating adoption of 
this further restriction. We also decline to adopt any rate publication 
requirement. We do not find sufficient evidence to impose publication 
obligations on incumbent LECs. Moreover, this requirement would go 
beyond merely preserving competition to create an obligation that does 
not presently exist for TDM services that are discontinued, and would 
therefore be contrary to the overall framework and purpose of our 
wholesale access obligation. The Order also declines to adopt 
additional requirements to the reasonably comparable wholesale access 
condition, specifically a certification requirement proposed by some 
commenters, since it is unclear the timing of such certification and 
requiring certification is inherently backward-looking, i.e., is best 
suited to confirming that an entity has already complied with a 
regulatory obligation. We find that the conditions we adopt to govern 
the discontinuance process is better suited to ensuring forward-
looking, ongoing compliance on an interim basis. We see no need at this 
juncture to adopt additional methods to ensure compliance when doing so 
would impose costs on small entities without any attendant clear 
benefit. The Order declines to impose any audits or specific metric 
requirements on incumbent or competitive LECs for the same reasons.

J. Report to Congress

    269. The Commission will send a copy of the Order, including this 
FRFA, in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Small Business Regulatory 
Enforcement Fairness Act of 1996. In addition, the Commission will send 
a copy of the Order, including the FRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration. A copy of the Order and 
FRFA (or summaries thereof) will also be published in the Federal 
Register.

V. Ordering Clauses

    270. Accordingly, it is ordered that, pursuant to Sections 1-4, 
201, 214, 251, and 303(r), of the Communications Act of 1934, as 
amended, 47 U.S.C. 151-154, 201, 214, 251, 303(r), this Report and 
Order, Order on Reconsideration, and Further Notice of Proposed 
Rulemaking are adopted.
    271. It is further ordered that parts 51 and 63 of the Commission's 
rules are amended as set forth in Appendix A, and that any such rule 
amendments that contain new or modified information collection 
requirements that require approval by the Office of Management and 
Budget under the Paperwork Reduction Act shall be effective after 
announcement in the Federal Register of Office of Management and Budget 
approval of the rules, and on the effective date announced therein.
    272. It is further ordered that this Report and Order and Order on 
Reconsideration shall be effective 30 days after publication in the 
Federal Register, except for 47 CFR 51.325(a)(4) and (e), 51.332, and 
51.333(b) and (c), which contain information collection requirements 
that have not been approved by OMB. Additionally, the removal of 47 CFR 
51.331(c) and 51.333(f), resulting in the removal of information 
collection requirements previously approved by OMB, has not been 
approved by OMB. The Federal Communications Commission will publish a 
document in the Federal Register announcing the effective date.

[[Page 63371]]

    273. It is further ordered that the Petition for Reconsideration 
filed by the United States Telecom Association is denied.
    274. It is further ordered that the Motion of the California Public 
Utilities Commission for Acceptance of Late-Filed Comments is granted.
    275. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a 
copy of this Report and Order and Order on Reconsideration to Congress 
and the Government Accountability Office pursuant to the Congressional 
Review Act, see 5 U.S.C. 801(a)(1)(A).
    276. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order and Further Notice of Proposed 
Rulemaking, including the Final and Initial Regulatory Flexibility 
Analyses, and this Order on Reconsideration to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 51

    Communications, Communications common carriers, Defense 
communications, Telecommunications, Telephone.

47 CFR Part 63

    Cable television, Communications common carriers, Radio, Reporting 
and recordkeeping requirements, Telegraph, Telephone.

Federal Communications Commission.
Gloria J. Miles,
Federal Register Liaison Officer.

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 51 and 63 as follows:

PART 51--INTERCONNECTION

0
1. The authority citation for part 51 continues to read as follows:

    Authority: Sections 1-5, 7, 201-05, 207-09, 218, 220, 225-27, 
251-54, 256, 271, 303(r), 332, 706 of the Telecommunication Act of 
1996, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 151-55, 157, 201-
05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 1302, 
47 U.S.C. 157 note, unless otherwise noted.

0
2. Section 51.325 is amended by revising paragraph (a)(4) and adding 
paragraph (e) to read as follows:


Sec.  51.325  Notice of network changes: Public notice requirement.

    (a) * * *
    (4) Will result in the retirement of copper, as defined in Sec.  
51.332.
* * * * *
    (e) Notices of network changes involving the retirement of copper, 
as defined in Sec.  51.332, are subject only to the requirements set 
forth in this section and Sec. Sec.  51.329(c), 51.332, and 51.335.


Sec.  51.331  [Amended]

0
3. Section 51.331 is amended by removing paragraph (c).
0
4. Add Sec.  51.332 to read as follows:


Sec.  51.332  Notice of network changes: Copper retirement.

    (a) Definition. For purposes of this section, the retirement of 
copper is defined as:
    (1) Removal or disabling of copper loops, subloops, or the feeder 
portion of such loops or subloops;
    (2) The replacement of such loops with fiber-to-the-home loops or 
fiber-to-the-curb loops, as those terms are defined in Sec.  
51.319(a)(3); or
    (3) The failure to maintain copper loops, subloops, or the feeder 
portion of such loops or subloops that is the functional equivalent of 
removal or disabling.
    (b) Methods for providing public notice. In providing the required 
notice to the public of network changes under this section, an 
incumbent LEC must comply with the following requirements:
    (1) The incumbent LEC must file a notice with the Commission.
    (2) The incumbent LEC must provide each entity within the affected 
service area that directly interconnects with the incumbent LEC's 
network with a copy of the notice filed with the Commission pursuant to 
paragraph (b)(1) of this section.
    (3) If the copper retirement will result in the retirement of 
copper loops to the premises, the incumbent LEC must directly provide 
notice through electronic mail or postal mail to all retail customers 
within the affected service area who have not consented to the 
retirement; except that the incumbent LEC is not required to provide 
notice of the copper retirement to retail customers where:
    (i) The copper facilities being retired under the terms of 
paragraph (a) of this section are no longer in use in the affected 
service area; or
    (ii) The retirement of facilities pursuant to paragraph (a)(3) of 
this section is undertaken to resolve a service quality concern raised 
by the customer to the incumbent LEC.
    (iii) The contents of any such notice must comply with the 
requirements of paragraph (c)(2) of this section.
    (iv) Notice to each retail customer to whom notice is required 
shall be in writing unless the Commission authorizes in advance, for 
good cause shown, another form of notice. If an incumbent LEC uses 
email to provide notice to retail customers, it must comply with the 
following requirements in addition to the requirements generally 
applicable to the notice:
    (A) The incumbent LEC must have previously obtained express, 
verifiable, prior approval from retail customers to send notices via 
email regarding their service in general, or planned network changes in 
particular;
    (B) Email notices that are returned to the carrier as undeliverable 
must be sent to the retail customer in another form before carriers may 
consider the retail customer to have received notice; and
    (C) An incumbent LEC must ensure that the subject line of the 
message clearly and accurately identifies the subject matter of the 
email.
    (4) The incumbent LEC shall notify and submit a copy of its notice 
pursuant to paragraph (b)(1) of this section to the public utility 
commission and to the Governor of the State in which the network change 
is proposed, to the Tribal entity with authority over the Tribal lands 
in which the network change is proposed, and to the Secretary of 
Defense, Attn. Special Assistant for Telecommunications, Pentagon, 
Washington, DC 20301.
    (c) Content of notice--(1) Non-retail. The notices required by 
paragraphs (b)(1), (2), and (4) of this section must set forth the 
information required by Sec.  51.327. In addition, the notices required 
by paragraphs (b)(1), (2), and (4) of this section must include a 
description of any changes in prices, terms, or conditions that will 
accompany the planned changes.
    (2) Retail. (i) The notice to retail customers required by 
paragraph (b)(3) of this section must provide sufficient information to 
enable the retail customer to make an informed decision as to whether 
to continue subscribing to the service to be affected by the planned 
network changes, including but not limited to the following provided in 
a manner that is clear and conspicuous to the average consumer:
    (A) The information required by Sec.  51.327(a)(1) through (4) and 
(a)(6);
    (B) A statement that the retail customer will still be able to 
purchase the existing service(s) to which he or she subscribes with the 
same functionalities and features as the service he or she currently 
purchases from the incumbent LEC, except that if this statement would 
be inaccurate, the incumbent LEC must include a

[[Page 63372]]

statement identifying any changes to the service(s) and the 
functionality and features thereof; and
    (C) A neutral statement of the services available to the retail 
customers from the incumbent LEC, which shall include a toll-free 
number for a customer service help line, a URL for a related Web page 
on the provider's Web site with relevant information, contact 
information for the Federal Communications Commission including the URL 
for the Federal Communications Commission's consumer complaint portal, 
and contact information for the relevant state public utility 
commission.
    (ii) If any portion of a notice is translated into another 
language, then all portions of the notice must be translated into that 
language.
    (iii) An incumbent LEC may not include in the notice required by 
paragraph (b)(3) of this section any statement attempting to encourage 
a customer to purchase a service other than the service to which the 
customer currently subscribes.
    (iv) For purposes of this section, a statement is ``clear and 
conspicuous'' if it is disclosed in such size, color, contrast, and/or 
location that it is readily noticeable, readable, and understandable. 
In addition:
    (A) The statement may not contradict or be inconsistent with any 
other information with which it is presented.
    (B) If a statement materially modifies, explains or clarifies other 
information with which it is presented, then the statement must be 
presented in proximity to the information it modifies, explains or 
clarifies, in a manner that is readily noticeable, readable, and 
understandable, and not obscured in any manner.
    (C) Hyperlinks included as part of the message must be clearly 
labeled or described.
    (d) Certification. No later than ninety (90) days after the 
Commission's release of the public notice identified in paragraph (f) 
of this section, an incumbent LEC must file with the Commission a 
certification that is executed by an officer or other authorized 
representative of the applicant and meets the requirements of Sec.  
1.16 of this chapter. This certification shall include:
    (1) A statement that identifies the proposed changes;
    (2) A statement that notice has been given in compliance with 
paragraph (b)(1) of this section;
    (3) A statement that the incumbent LEC timely served a copy of its 
notice filed pursuant to paragraph (b)(1) of this section upon each 
entity within the affected service area that directly interconnects 
with the incumbent LEC's network;
    (4) The name and address of each entity referred to in paragraph 
(d)(3) of this section upon which written notice was served;
    (5) A statement that the incumbent LEC timely notified and 
submitted a copy of its public notice to the public utility commission 
and to the Governor of the State in which the network change is 
proposed, to any federally recognized Tribal Nations with authority 
over the Tribal lands in which the network change is proposed, and to 
the Secretary of Defense in compliance with paragraph (b)(4) of this 
section;
    (6) If customer notice is required by paragraph (b)(3) of this 
section, a statement that the incumbent LEC timely served the customer 
notice required by paragraph (b)(3) of this section upon all retail 
customers to whom notice is required;
    (7) If a customer notice is required by paragraph (b)(3) of this 
section, a copy of the written notice provided to retail customers;
    (8) A statement that the incumbent LEC has complied with the 
notification requirements of Sec.  68.110(b) of this chapter or that 
the notification requirements of Sec.  68.110(b) do not apply;
    (9) A statement that the incumbent LEC has complied with the good 
faith communication requirements of paragraph (g) of this section and 
that it will continue to do so until implementation of the planned 
copper retirement is complete; and
    (10) The docket number and NCD number assigned by the Commission to 
the incumbent LEC's notice provided pursuant to paragraph (b)(1) of 
this section.
    (e) Timing of notice. (1) Except pursuant to paragraph (e)(2) of 
this section, an incumbent LEC must provide the notices required by 
paragraphs (b)(2) and (4) of this section no later than the same date 
on which it files the notice required by paragraph (b)(1) of this 
section.
    (2) Where the copper facilities being retired under the terms of 
paragraph (a) of this section are no longer being used to serve any 
customers, whether wholesale or retail, in the affected service area, 
an incumbent LEC must provide the notices required by paragraphs (b)(2) 
and (4) of this section no later than ninety (90) days after the 
Commission's release of the public notice identified in paragraph (f) 
of this section.
    (3) An incumbent LEC must provide any notice required by paragraph 
(b)(3) of this section to all non-residential customers to whom notice 
must be provided no later than the same date on which it files the 
notice required by paragraph (b)(1) of this section.
    (4) An incumbent LEC must provide any notice required by paragraph 
(b)(3) of this section to all residential customers to whom notice must 
be provided no later than ninety (90) days after the Commission's 
release of the public notice identified in paragraph (f) of this 
section.
    (f) Implementation date. The Commission will release a public 
notice of filings of the notice of copper retirement pursuant to 
paragraph (b)(1) of this section. The public notice will set forth the 
docket number and NCD number assigned by the Commission to the 
incumbent LEC's notice. The notices of copper retirement required by 
paragraph (b) of this section shall be deemed approved on the 180th day 
after the release of the Commission's public notice of the filing.
    (g) Good faith requirement. An entity within the affected service 
area that directly interconnects with the incumbent LEC's network may 
request that the incumbent LEC provide additional information to allow 
the interconnecting entity where necessary to accommodate the incumbent 
LEC's changes with no disruption of service to the interconnecting 
entity's end user customers. Incumbent LECs must work with such 
requesting interconnecting entities in good faith to provide such 
additional information.

0
5. Section 51.333 is amended by revising the section heading and 
paragraphs (b) and (c) and removing paragraph (f) to read as follows:


Sec.  51.333  Notice of network changes: Short term notice, objections 
thereto.

* * * * *
    (b) Implementation date. The Commission will release a public 
notice of filings of such short term notices. The public notice will 
set forth the docket number assigned by the Commission to the incumbent 
LEC's notice. The effective date of the network changes referenced in 
those filings shall be deemed final on the tenth business day after the 
release of the Commission's public notice, unless an objection is filed 
pursuant to paragraph (c) of this section.
    (c) Objection procedures for short term notice. An objection to an 
incumbent LEC's short term notice may be filed by an information 
service provider or telecommunications service provider that directly 
interconnects with the incumbent LEC's network. Such objections must be 
filed with the Commission, and served on the

[[Page 63373]]

incumbent LEC, no later than the ninth business day following the 
release of the Commission's public notice. All objections filed under 
this section must:
    (1) State specific reasons why the objector cannot accommodate the 
incumbent LEC's changes by the date stated in the incumbent LEC's 
public notice and must indicate any specific technical information or 
other assistance required that would enable the objector to accommodate 
those changes;
    (2) List steps the objector is taking to accommodate the incumbent 
LEC's changes on an expedited basis;
    (3) State the earliest possible date (not to exceed six months from 
the date the incumbent LEC gave its original public notice under this 
section) by which the objector anticipates that it can accommodate the 
incumbent LEC's changes, assuming it receives the technical information 
or other assistance requested under paragraph (c)(1) of this section;
    (4) Provide any other information relevant to the objection; and
    (5) Provide the following affidavit, executed by the objector's 
president, chief executive officer, or other corporate officer or 
official, who has appropriate authority to bind the corporation, and 
knowledge of the details of the objector's inability to adjust its 
network on a timely basis:
    ``I, (name and title), under oath and subject to penalty for 
perjury, certify that I have read this objection, that the statements 
contained in it are true, that there is good ground to support the 
objection, and that it is not interposed for purposes of delay. I have 
appropriate authority to make this certification on behalf of 
(objector) and I agree to provide any information the Commission may 
request to allow the Commission to evaluate the truthfulness and 
validity of the statements contained in this objection.''
* * * * *

PART 63--EXTENSION OF LINES, NEW LINES, AND DISCONTINUANCE, 
REDUCTION, OUTAGE AND IMPAIRMENT OF SERVICE BY COMMON CARRIERS; AND 
GRANTS OF RECOGNIZED PRIVATE OPERATING AGENCY STATUS

0
6. The authority citation for part 63 continues to read as follows:

    Authority: Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 
403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless 
otherwise noted.


0
7. Amend Sec.  63.71 by redesignating paragraphs (c), (d), and (e) as 
(d), (e), and (f), and adding paragraph (c) to read as follows:


Sec.  63.71  Procedures for discontinuance, reduction or impairment of 
service by domestic carriers.

* * * * *
    (c)(1) If an incumbent LEC, as that term is defined in Sec.  51.5 
of this chapter, obtains authority to discontinue, reduce, or impair a 
time-division multiplexing (TDM) service listed in this paragraph 
(c)(1) and if the incumbent LEC offers an Internet Protocol (IP) 
service in the same geographic market(s) as the TDM service following 
the discontinuance, reduction, or impairment of such TDM service, then 
as a condition on such authority, the incumbent LEC shall provide any 
requesting telecommunications carrier wholesale access reasonably 
comparable to the level of wholesale access it previously provided on 
reasonably comparable rates, terms, and conditions. This condition 
shall expire when all of the following have occurred:
    (i) The Commission identifies a set of rules and/or policies that 
will ensure rates, terms, and conditions for special access services 
are just and reasonable;
    (ii) The Commission provides notice such rules are effective in the 
Federal Register; and (iii) Such rules and/or policies become 
effective.
    (2) The requirements of this paragraph apply to:
    (i) A special access service that is used as a wholesale input by 
one or more telecommunications carriers; and
    (ii) A service that is used as a wholesale input by one or more 
telecommunications carriers to provide end users with voice service and 
that includes last-mile service, local circuit switching, and shared 
transport.
* * * * *

[FR Doc. 2015-24505 Filed 10-16-15; 8:45 am]
BILLING CODE 6712-01-P