Technology Transitions, Policies and Rules Governing Retirement of Copper Loops by Incumbent Local Exchange Carriers, 62632-62657 [2016-20215]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 81, Number 176 (Monday, September 12, 2016)]
[Rules and Regulations]
[Pages 62632-62657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20215]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 51 and 63

[GN Docket No. 13-5, RM-11358; FCC 16-90]


Technology Transitions, Policies and Rules Governing Retirement 
of Copper Loops by Incumbent Local Exchange Carriers

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) initiated this rulemaking in August 2015 to help guide and 
accelerate 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. In this Second Report and Order and Order on 
Reconsideration, we take several actions aimed at stripping away 
anachronistic rules while ensuring that competition continues to thrive 
and consumers are protected during technology transitions.

DATES: Effective upon approval by the Office of Management and Budget. 
The Commission will publish a document in the Federal Register 
announcing the effective date(s).

FOR FURTHER INFORMATION CONTACT: Megan Capasso, Wireline Competition 
Bureau, Competition Policy Division, (202) 418-1151, or send an email 
to Megan.Capasso@fcc.gov. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an email to PRA@fcc.gov or contact Nicole Ongele 
at (202) 418-2991.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Second 
Report and Order and Order on Reconsideration in GN Docket No. 13-5, 
RM-11358, FCC 16-90, adopted July 14, 2016 and released July 15, 2016. 
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://apps.fcc.gov/edocs_public/attachmatch/FCC-16-90A1.pdf. The Commission will send a 
copy of this Second Report and Order and Order on Reconsideration in a 
report to be sent to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Synopsis

    1. In the Second Report and Order, we update our review and notice 
procedures governing the filing and processing of applications pursuant 
to section 214 of the Communications Act of 1934, as amended (the Act) 
to discontinue, reduce, or impair service (the section 214 
discontinuance process). Section 214 of the Act and the Commission's 
implementing rules generally require telecommunications carriers and 
interconnected Voice over Internet Protocol (VoIP) providers to obtain 
Commission authority to discontinue interstate or foreign service to a 
community or a party of a community. The Commission relieved Commercial 
Mobile Radio Service (CMRS) providers of this obligation in 1994. The 
VoIP Discontinuance Order moots any need to find a separate basis of 
authority over VoIP providers in connection with this Order.
    2. All applicants seeking to discontinue a service are currently 
required to file a section 214 application in accordance with rules 
governing notice, opportunity for comment, review, and processing 
requirements. Commenters have 15 days to file objections if the 
applicant is a non-dominant carrier and 30 days to file if the 
applicant is a dominant carrier. The application is automatically 
granted on the 31st day after filing for non-dominant carriers and on 
the 60th day

[[Page 62633]]

after filing for dominant carriers unless the Wireline Competition 
Bureau (Bureau) has notified the applicant that the grant will not be 
automatically effective. The Bureau has considerable discretion in 
determining whether to grant such authority based on the application, 
responsive comments, and other filings. The Bureau will normally 
authorize the discontinuance ``unless it is shown that customers would 
be unable to receive service or a reasonable substitute from another 
carrier or that the public convenience or necessity is otherwise 
adversely affected.''
    3. In evaluating whether the discontinuance will harm the public 
interest, the Commission has employed a five factor balancing test to 
analyze: (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) increased 
charges for alternative services; and (5) the existence, availability, 
and adequacy of alternatives. We find that the existence, availability, 
and adequacy of alternatives, or the adequate replacement factor, has 
heightened importance in the context of technology transitions. 
Consistent with the proposals in the Emerging Wireline Further Notice 
of Proposed Rulemaking (FNPRM), 80 FR 57768-01, we now adopt an updated 
approach for preparing, reviewing, and evaluating section 214 
discontinuance applications that relate to technology transitions 
(technology transition discontinuance applications).
    4. The Framework for the Adequate Replacement Test. We conclude 
that the public interest requires that applications seeking to 
discontinue a legacy time-division multiplexed (TDM)-based voice 
service as part of a transition to a new technology, whether IP, 
wireless, or another type, indicate that a technology transition is 
implicated. The requirements we articulate for eligibility for 
automatic grant of discontinuance applications involving a technology 
transition apply only to legacy voice services. Other services to which 
section 214(a) discontinuance obligations apply and voice services 
subject to section 214(a) being discontinued in non-technology 
transitions circumstances will continue to be subject to our pre-
existing discontinuance process, which provides the public an 
opportunity to comment and to which our traditional five-factor 
balancing test applies. We decline to apply the adequate replacement 
test to legacy data services. For any other domestic service for which 
a discontinuance application is filed, section 63.71(e) of our rules 
(redesignated as section 63.71(f) herein) shall continue to govern 
automatic grant procedures. Unlike traditional applicants, technology 
transition discontinuance applicants seeking streamlined treatment will 
be required to submit with their application either a certification or 
a showing as to whether an adequate replacement exists in the service 
area. Applications either (i) certifying or (ii) demonstrating 
successfully through their showing that an adequate replacement exists 
will be eligible for automatic grant pursuant to section 63.71(d) of 
the Commission's rules as long as the existing requirements for 
automatic grant are satisfied. We stress that attempting to satisfy the 
adequate replacement test is entirely voluntary for an applicant. Voice 
technology transition discontinuance applicants that decline to pursue 
this path are not eligible for streamlined treatment and will have 
their applications evaluated on a non-streamlined basis under the 
traditional five factor test. Moreover, the showing made regarding an 
adequate alternative under the five factor test does not require the 
network performance testing and other specific showings required under 
the adequate replacement test for streamlined treatment.
    5. We further conclude that an applicant for a technology 
transition discontinuance may demonstrate that a service is an adequate 
replacement for a legacy voice service by certifying or showing that 
one or more replacement service(s) offers all of the following: (i) 
Substantially similar levels of network infrastructure and service 
quality as the applicant service; (ii) compliance with existing federal 
and/or industry standards required to ensure that critical applications 
such as 911, network security, and applications for individuals with 
disabilities remain available; and (iii) interoperability and 
compatibility with an enumerated list of applications and 
functionalities determined to be key to consumers and competitors. One 
replacement service must satisfy all the criteria to retain eligibility 
for automatic grant.
    6. Technology transition applicants can either demonstrate 
compliance with these objective criteria or make a demonstration that, 
despite not being able to meet the criteria, the totality of the 
circumstances demonstrates that an adequate replacement nonetheless 
exists. If an applicant cannot certify or make that showing, or 
declines to pursue the voluntary path of streamlined treatment, it must 
include in its application an explanation of how its proposed 
discontinuance will not harm the public interest, with specific 
reference to the five factors the Commission traditionally considers. 
The Bureau will then weigh that information as part of the traditional 
multi-factor evaluation, placing particular scrutiny on the adequate 
replacement factor under the newly-enhanced test. Only meaningful, 
factual objections regarding the reliability of certifications provided 
will be persuasive. Any entity or individual may object to the 
certification or showing, and the Commission will consider the 
objection and determine if the applicant needs to provide additional 
support.
    7. In adopting objective, quantifiable standards for the adequate 
replacement test, we seek to minimize uncertainty or confusion that 
could slow or even discourage technology transitions. Moreover, we do 
not want to stifle the new and innovative ways that a replacement 
service could benefit customers. For that reason, we announce a test 
that sets clear, achievable benchmarks but leaves flexibility, 
recognizing that a shift from a TDM network to a new technology will 
never be a purely apples-to-apples comparison.
    8. The approach we adopt today places a new prominence on the 
adequate replacement analysis. This new emphasis does not, however, 
displace the Commission's traditional five-factor test outside the 
context of technology transition discontinuance applications seeking 
streamlined treatment. The five factor test is aimed at promoting--and 
where necessary, balancing--the four missions of our agency, namely to 
protect consumers, promote competition, ensure universal access, and 
strengthen public safety. Four of the factors--(1) the financial impact 
on the common carrier of continuing to provide service, (2) the need 
for the service in general, (3) the need for the particular facilities 
in question, and (4) increased charges for alternative services--offer 
a traditional balancing of the financial and competitive needs of 
industry against the values of consumer affordability and expectations.
    9. The adequate replacement factor, in contrast, aims to balance 
all four missions as a means of ensuring all Americans benefit from 
these exciting new technologies. This has always required a deeper 
analysis, but that need is particularly acute in the context of 
discontinuances involving legacy voice services related to technology 
transitions. We disagree that the action we take today is inconsistent 
with the Commission's recent revisions to the universal service program 
rules,

[[Page 62634]]

particularly in the Connect America Fund proceeding. We made it clear 
in the December 2014 Connect America Order that even though we were 
forbearing ``from enforcing a federal high-cost requirement that price 
cap carriers offer voice telephony service throughout their service 
areas pursuant to section 214(e)(1)(A) in three types of geographic 
areas,'' those carriers are still subject to section 214(a)'s mandate 
regarding the need for Commission authorization before discontinuing a 
service. We conclude, however, that certain principles--such as access 
to critical applications such as 911--are not subject to balancing and 
must remain available and fully functional as part of any transition. 
The streamlined, technology neutral framework that we adopt will help 
to protect those principles.
    10. Limited to the Technology Transition Context. We conclude that 
the adequate replacement test we discuss here should only apply to any 
application involving a technology transition from TDM to IP or 
wireline to wireless in which the applicant intends to discontinue 
completely customers' access to the legacy voice service. The 
components of the test are specifically tailored to measure 
considerations relevant to a technology transition that are not as 
prominent in other contexts. For example, requiring minor 
discontinuances of particular applications or functionalities (such as 
operator-assisted functionalities) associated with a service to 
demonstrate that an adequate replacement is available is not necessary. 
We conclude that limiting the test to the context of technology 
transitions accomplishes our regulatory goals in an appropriately 
narrow manner.
    11. No Presumptions or Exclusions Regarding Specific Technologies. 
We decline to presume that particular technologies, by their nature, 
represent an adequate replacement for legacy voice services in all 
instances, because our public interest analysis demands that applicants 
provide objective evidence showing a replacement service will provide 
quality service and access to needed applications and functionalities. 
IP-based and other new services should demonstrate that they meet 
consumers' and providers' fundamental needs through satisfaction of 
performance standards, compliance with Commission rules, and harmony 
with key legacy functionalities and applications before we grant 
permission to remove existing voice services from the marketplace. It 
is critical that we retain the ability to examine each discontinuance 
application given the potential for variability in different 
implementations of the same technology. The same technology could 
nonetheless utilize different features, be produced by different 
vendors with different methodologies, and use different quality 
measurement techniques, any of which could result in varied service 
quality and thus lead to potential interoperability issues. We will 
allow testing data from one area to be used to support future 
discontinuance applications in another area, conditioned on 
certifications that the network is built according to the same detailed 
design plan as the network supporting the service under the prior 
discontinuance. We believe the current discontinuance process, subject 
to the changes adopted today, provides the appropriate balance of 
allowing for public comment and objections while retaining the 
opportunity for speedy and effective resolutions.
    12. We retain largely the same standards for automatic grant that 
apply under the current regime for the special context of technology 
transitions. However, we allow a more streamlined approach for 
discontinuances involving services that are substantially similar to 
those for which a section 214 discontinuance has previously been 
approved. We also take action to streamline our section 214 process in 
instances where consumers no longer subscribe to legacy voice services. 
Although our actions today focus primarily on technology transitions, 
we recognize that the market is constantly evolving even outside the 
context of these crucial transitions. For that reason, we allow a 
section 214 discontinuance application be eligible for automatic grant 
without any further showing if the applicant can demonstrate that the 
service has zero customers in the relevant service area and no requests 
for service in the last six months.
    13. No Arbitrary Timelines. We do not establish timelines for 
reviewing applications that are not eligible for automatic grant, 
because the public interest demands that we provide appropriate 
scrutiny and careful review to discontinuance applications related to 
technology transitions given their novelty and complexity, and we 
cannot guarantee at this time how long that process will take. An 
application will remain under consideration for automatic grant unless: 
(i) The Commission receives comments setting forth significant, 
meaningful, evidence-based objections or (ii) after reviewing the 
application, Commission staff has concerns about the impact of the 
planned discontinuance on the public convenience and necessity. Should 
such an objection arise, we will review the applicant's and objector's 
showings as expeditiously as possible. We do intend to rely on the 
efficiencies of precedent and data provided regarding similar 
transitions when factually or legally similar disputes arise. Finally, 
should it be determined that the existing process is resulting in 
unacceptable delay or inefficiency, we will revisit our decision not to 
establish timeframes for acting on section 214 applications.
    14. We also decline to adopt a hard deadline for when a Public 
Notice should be released for a technology transition discontinuance 
application following its submission. Staff review applications for 
completeness, accuracy, and fulfillment of all predicate requirements, 
including providing notice to affected customers, before issuing the 
Public Notice. Imposing a hard deadline could result in issuance of 
public notice of defective applications, and commenters have not 
identified a pattern of undue delay. Based on actual experience with 
the streamlined process we adopt today, we can revisit this issue at a 
future date if necessary. Moreover, to facilitate public input on these 
types of applications, the Bureau will not only continue to list such 
notices prominently, but will also identify them specifically as 
applications related to technology transitions on the Commission's Web 
site.
    15. An Objective Factor-Based Test Is Preferable To A Subjective 
Case-by-Case Approach for Technology Transition Discontinuances. The 
three-pronged test tied to specific benchmarks will allow industry to 
establish reasonable expectations about the investments necessary to 
satisfy the test while also protecting consumers. Notably, through the 
detailed articulation that we provide today, the adequate replacement 
standard will be substantially clearer than it has been to this point.
    16. Successful Prior Certifications Will Streamline Future 
Applications. We will allow a repeat applicant for a 214 discontinuance 
application in the technology transition context to rely on its 
successful certification of compliance with all three prongs of the 
adequate replacement test in a previously approved application 
involving a substantially similar service. A substantially similar 
service is one offered by the same applicant relying on the same 
technology and utilizing a comparable network infrastructure. The 
practical effect of this rule is to allow the applicant to bypass the 
performance testing requirements described below.

[[Page 62635]]

    17. Commenters will have the opportunity to rebut an applicant's 
planned reliance on a previous application if they can offer 
substantial evidence that the technology or network infrastructure are 
not in fact substantially similar to the service subject to the 
certifications in the previous application or the certifications have 
been proven unreliable, based on significant consumer complaints or new 
independent data.
    18. Treating First and Third Party Services Equally. We conclude 
that both first and third party services should be eligible as 
potential adequate replacement services. Third party services have 
always been eligible for consideration under the 214 discontinuance 
process as potential adequate replacements. The question is whether an 
adequate replacement exists in the service area, not who provides the 
service that provides that adequate replacement.
    19. Applicants seeking to discontinue a service have the burden of 
demonstrating that the discontinuance will not harm the public 
interest. Applicants relying on a third party service will be allowed 
to make a prima facie showing based on publicly available information 
as to whether the third party service meets our test as an adequate 
replacement. We will take into account an applicant's faultless 
inability to access necessary data and information from a third party 
when reviewing any application that relies on the existence of third 
party services to meet the adequate replacement test. Any commenter 
opposing grant of a section 214 application relying on a third party 
service must rebut the prima facie showing made by the applicant. 
Should the objecting commenter raise legitimate concerns, we will 
remove the application from consideration for automatic grant. In 
attempting to rebut such a showing, members of the public who use the 
third party service can agree to participate in tests necessary to 
measure network performance, as required under the criteria.
    20. Requiring A Single Service to Satisfy All Prongs. To ensure 
that consumers receive the integrated service experience they need and 
deserve, we require that a single service (whether first- or third-
party) satisfy all three prongs of the adequate replacement test in 
order to be eligible for automatic grant.
    21. Network Infrastructure and Service Quality. To satisfy the 
first prong of the adequate replacement test, and thereby be eligible 
for automatic grant, an applicant must demonstrate that at least one 
service provides: Substantially similar network performance as the 
service being discontinued; substantially similar service availability 
as the service being discontinued; and coverage to the entire affected 
geographic service area.
    22. Customers rightfully expect that any adequate replacement for a 
wireline legacy voice service will be available in the same coverage 
area, allow customers to make and receive high quality voice calls 
consistently, and support the applications and functionalities on which 
they rely. However, we recognize that a comparison between a legacy 
voice service and its potential replacement is not an apples-to-apples 
comparison. We thus provide applicants the flexibility either to 
demonstrate compliance with all of the benchmarks, or to provide 
evidence that demonstrates that, despite falling short of certain 
specified benchmarks, the network providing the replacement service 
nonetheless provides substantially similar performance and availability 
when considering the totality of the circumstances. A replacement 
network's performance will be evaluated against objective benchmarks, 
but falling short of any single metric will not automatically 
disqualify it from being considered adequate. The actual performance 
numbers will be evaluated in a holistic manner to determine the overall 
network performance, enabling the carrier to show that the totality of 
circumstances demonstrate adequate performance. Legacy data services 
will not be subject to the adequate replacement test and associated 
streamlined processing that we announce today. Rather, those services 
will be evaluated under the traditional process, and the Commission 
will continue to closely scrutinize such applications in determining 
whether the public interest would be harmed by the discontinuance.
    23. We adopt benchmarks related to various metrics that, if 
satisfied, would demonstrate that a service is performing adequately 
enough to serve as a replacement for a legacy TDM service. There are 
two ways of demonstrating adequacy: (i) Through performance testing 
that demonstrates satisfaction of each of the benchmarks, or (ii) a 
demonstration, based on the totality of the circumstances, the network 
still provides substantially similar performance and availability. As 
an example, an applicant might fall just short of our data loss 
benchmark but nonetheless make a showing that the totality of the 
circumstances demonstrates adequate performance. That showing would 
presumably include test data demonstrating achievement of the remaining 
benchmarks as well as an explanation for why the network fell short of 
the data loss benchmark and any planned improvements to the network 
which would allow for enhanced performance in the future. We interpret 
``substantially similar'' in this context to mean that the network 
operates at a sufficient level with respect to the metrics identified 
below, such that the network platform will ensure adequate service 
quality for interactive and highly-interactive applications or 
services, in particular voice service quality, and support applications 
and functionalities that run on those services. Under either approach, 
the applicant initially provides the results of network testing, as 
well as outage and repair reporting, that demonstrate achievement of 
the benchmarks, although it may rely in subsequent applications on 
testing data from a previously approved discontinuance application.
    24. Network Performance. We find that there are two essential 
metrics used to determine whether a particular data transmission 
network is an adequate replacement for a legacy wireline voice service: 
Latency and data loss. Failure to satisfy a single metric is not 
disqualifying. An applicant may either demonstrate achievement of both 
benchmarks, thus presumptively showing adequate performance, or 
demonstrate that the totality of the circumstances, including the voice 
service availability and network coverage criteria, demonstrates 
adequate network performance. By ``presumptive'' we refer to the fact 
the Commission may seek additional proof beyond certification.
    25. We rely on industry technical standards and our approaches in 
other proceedings to adopt the benchmarks we will use in our section 
214 process. The performance benchmarks are measured in accordance with 
our Technical Appendix. We define the latency benchmark as 100 
milliseconds or less for 95% of all peak period round trip 
measurements, a benchmark consistent with previous Commission decisions 
in the universal service context, informed by ITU-T standards, and 
comparable to demonstrated performance under the Commission's Measuring 
Broadband America program. This metric also provides for a latency 
performance that will allow the applicant's network to perform its 
portion of an end-to-end voice call. We define the data loss metric as 
less than

[[Page 62636]]

or equal to 1 percent for packet based networks.
    26. Latency and data loss are the terms used for the two essential 
metrics described above for measuring network performance as a means of 
comparison to a legacy wireline voice service. We plan to apply the 
same metrics and benchmarks to all replacements, whether fixed or 
mobile, wireline or wireless, terrestrial or satellite. These metrics 
reflect the type of performance that should be expected of a 
sophisticated packet-based network infrastructure that can carry one or 
more applications including voice calls, fax, security/health alerts, 
gaming, video streaming and video teleconferencing. In order to be 
eligible for automatic grant, an applicant must be prepared to 
demonstrate the replacement service will perform as effectively as the 
legacy voice service.
    27. Latency. In order for a replacement service to meet this aspect 
of the network performance prong and be eligible for streamlined 
treatment, latency must be limited to 100 milliseconds or less. Latency 
measures the time it takes for a data packet to travel from one point 
to another in a network, and is a significant factor in analyzing a 
network's performance. Measuring Broadband America data shows that 
wireline broadband providers meet this requirement. The Commission has 
measured latency as the round-trip time from the consumer's home to the 
closest designated speed measurement server within the provider's 
network and back.
    28. AT&T asserts that the 100 millisecond roundtrip benchmark 
cannot be applied to the network architecture of certain non-packet 
based wireless services and that, as a result, the Commission should 
``adopt[ ] a threshold of less than 200 milliseconds measured mouth-to-
ear.'' The 100 millisecond roundtrip standard is consistent with the 
CAF Phase II Service Obligations Order, where the Wireline Competition 
Bureau explained that it designed the 100 millisecond roundtrip latency 
standard to ensure that consumers ultimately achieve 200 milliseconds 
mouth-to-ear latency. That being said, the totality of the 
circumstances approach allows applicants to provide objective evidence 
to support their showing that the replacement service would offer 
substantially similar network performance and service availability, 
even if that evidence is not identical to the exact metrics that we 
identify. Our metrics, benchmarks, and methodologies measure packet-
based technologies, which we expect will most frequently be associated 
with next generation technologies. We also note several examples of 
packet mobile networks. Specifically, because the 100 millisecond 
roundtrip standard is designed to ensure that consumers achieve 200 
millisecond mouth-to-ear latency, objective evidence that a non-packet 
based replacement service meets the underlying 200 millisecond mouth-
to-ear standard would be compelling as a component of a totality of the 
circumstances showing.
    29. Data Loss. In order for a replacement service to meet this 
aspect of the network performance prong, data loss should be less than 
1 percent for packet-based networks. Data loss exceeding 1 percent for 
packet-based networks would cause performance issues that warrant 
further examination. Applicants would need to demonstrate data loss is 
lower than this benchmark in order to have the opportunity to be 
eligible for automatic grant. Data loss is often referred to as the IP 
Packet Loss Ratio (IPLR) in IP networks. This metric measures the ratio 
of total lost IP packet outcomes to total transmitted IP packets in the 
environment under review. Consecutive packet loss is of particular 
concern for certain time-sensitive applications, such as voice and 
video.
    30. We have chosen a packet loss rate of less than 1 percent 
because it will allow for successful quality voice calls and other 
highly interactive applications. We further find that this data loss 
benchmark is appropriate to ensure successful transmission of voice and 
video communications.
    31. Although the network infrastructure and the services that run 
over the network are distinct, network performance affects the service 
quality being delivered to customers and thus should be measured. These 
measurements are an objective tool for determining when an application 
will be eligible for automatic grant; if the applicant cannot 
demonstrate that, it is appropriate to engage in further examination to 
ensure the services provided over newer technologies are adequate 
replacements for legacy voice services.
    32. We recognize that carriers may incur costs in order to 
demonstrate they meet these benchmarks, and have taken steps to limit 
the burden of making these demonstrations in the section 214 
discontinuance process. We allow successful testing results to be used 
as support for future applications involving the same applicant 
offering a service on a substantially similar network. Moreover, 
carriers are not required to meet these standards to file a section 214 
discontinuance; if a carrier does not wish to present such information, 
its section 214 application will not be eligible for automatic grant, 
but rather will be subject to the traditional review process. And 
finally, we exempt small providers from the requirement to submit 
testing results in order to be eligible for automatic grant.
    33. Wireless--Packet Networks. We intend to rely on the same 
metrics and benchmarks, applicable to both wireline and wireless 
networks, when we examine whether a mobile or fixed wireless network 
can qualify as an adequate replacement. Appendix B allows for 
generalized network testing standards which are applicable to both 
wireline and wireless networks.
    34. Testing Methodology and Parameters. We find testing is 
necessary, at least initially, to ensure that applicants actually meet 
the benchmarks we have established to be eligible for automatic grant. 
Established testing parameters will ensure that the Commission analyzes 
similar data sets from applicants in the technology transitions. 
Although we expect that the Order and Technical Appendix will encompass 
all of the information that applicants need, we delegate authority to 
the Office of Engineering and Technology, working in consultation with 
the Wireline Competition Bureau and the Wireless Telecommunications 
Bureau, to issue more specific testing requirements, as necessary.
    35. In order to comply with the testing parameters listed below, 
applicants filing their first technology transition discontinuance 
application will need to begin testing at least 30 days prior to filing 
that application. The 30-day test period is intended to ensure that the 
network is in a stable state and to allow for long-term projection of 
network infrastructure performance. Shorter periods would not account 
for variation in patterns and usage and could allow the applicant time 
to traffic engineer their network so that the chosen test customers 
performed better for a short period of time.
    36. To demonstrate that replacement services will have adequate 
network performance and thereby remain eligible for streamlined 
treatment for a technology transition discontinuance, the provider must 
perform the following actions, which are detailed in Appendix B to this 
Order:
     Conduct 30 days of performance testing. This timeframe 
allows for: (1) Testing of weekday and weekend periods with sufficient 
repetition to ensure a single outlying week was not chosen, and (2) 
monthly variation in network usage for individuals paying

[[Page 62637]]

bills, 30 day/monthly data caps and enterprise end of month processing.
     Use a randomly selected sample group of a total of 50 
residential and 50 enterprise customer locations per potential 
replacement service for testing, to ensure a representative sample. We 
recognize that fully random selection may not be possible because 
customer consent is required and other factors may impact the selection 
process. If the area where service is proposed to be discontinued is 
very large, for example covering several states or Tribal lands, more 
than 100,000 customers, or containing several legacy Local Access 
Target Areas, then several separate sample sets of 30-50 consumer 
locations would be required per state, region, or geographically-
referenced area.
     Report results to the Commission.
     Host a Web site or Web sites where all test data, results, 
test plan and all associated documentation that is not subject to a 
confidentiality request or confidential pursuant to section 0.441 et 
seq. of our rules are available publicly. We would generally consider 
the detailed design document a document that warrants confidential 
treatment.
    37. While we provide some flexibility in the testing parameters an 
applicant will use, the Commission will include in its evaluation of 
the discontinuance application whether the testing conditions used were 
appropriate to measure performance. Thus, in addition to testing 
results, the Commission will consider the testing parameters as a 
factor in determining whether it needs to remove the application from 
streamlined processing. If the testing parameters raise sufficient 
concerns such that the Commission removes the application from 
streamlined processing, the Commission will then consider those testing 
parameters in any totality of the circumstances analysis of the 
adequacy of the replacement network.
    38. Small Business Exemption from the Network Performance Testing 
Requirements. We emphasize that no carrier must conduct testing or 
otherwise meet the criteria we adopt today. Compliance with these 
criteria merely enables potential automatic grant of a discontinuance 
application. The adequate replacement factor is merely one part of a 
multifactor balancing test, and the benchmarks associated with the 
criteria provide guidance to carriers and a path toward automatic grant 
of their technology transitions discontinuance applications. We also 
reemphasize that once a carrier completes testing of a next-generation 
service and successfully obtains automatic grant, it need not conduct 
testing again if it files an application involving a substantially 
similar replacement service.
    39. However, we provide smaller carriers more flexibility in how 
they demonstrate network performance under this prong of the three-
pronged test. We do not extend this exemption to any other components 
of the adequate replacement test we adopt today, including both of the 
other aspects of the network infrastructure prong (service quality and 
network coverage) or the other two prongs of the test. We conclude that 
carriers with 100,000 or fewer subscriber lines, aggregated across all 
affiliates, may remain eligible for automatic grant without compliance 
with the specific testing requirements of the network performance 
criterion we articulate today. This exemption from complying with the 
specific testing parameters announced herein does not apply to any 
rate-of-return carrier that is affiliated with a price cap carrier. We 
encourage them, however, to share with the Commission whatever 
information they deem probative of their network performance.
    40. Service Availability. In order to meet this aspect of the 
network performance prong and be eligible for automatic grant, an 
applicant must demonstrate service availability of 99.99 percent. The 
test we adopt today consists of a standard formula traditionally used 
by industry to measure telephone service availability for which we have 
defined the variables to ensure that all discontinuing carriers are 
measuring the same information. The replacement service's availability 
will be calculated using data regarding customer trouble reports, the 
average repair interval in responding to those reports, the number of 
lines in the service area, and the duration of the observation period 
to reach a representative measurement of a ``four 9s'' benchmark used 
to measure service availability. We conclude these variables will 
provide the best measure of customers' ability to access their 
provider's network.
    41. The ITU defines ``reliability'' as ``[t]he probability that an 
item can perform a required function under stated conditions for a 
given time interval.'' It defines ``availability'' as ``[a]vailability 
of an item to be in a state to perform a required function at a given 
instant of time or at any instant of time within a given time interval, 
assuming that the external resources, if required, are provided.''
    42. We conclude that a 99.99 percent service availability standard, 
calculated according to the formula and parameters established herein, 
is a reasonable approach to ensure that a replacement service 
presumptively provides substantially similar service as the service 
being discontinued. We find that a so-called ``five 9s'' (i.e., 99.999 
percent availability) standard, which would allow a subscriber's 
service to have, on average, approximately 5 minutes and 15 seconds of 
downtime per year, is too high a threshold. It would impose a higher 
standard than currently applies to TDM-based service. We also find that 
a 98 percent availability standard, which would allow, on average, 
approximately 7 days, 7 hours, and 12 minutes of downtime per year, is 
too low a benchmark for an applicant to be eligible for automatic 
grant, because it would allow more downtime than consumers should 
reasonably expect. (This conclusion does not prejudge how we might view 
such an application in the context of a holistic review.) The 
difference between a 99.999 percent and a 98 percent reliability 
standard--less than 2 percent--translates to more than seven additional 
days' worth of service downtime per year, an amount that we judge would 
be quite meaningful to consumers. We conclude that if a replacement 
service faces that much service downtime, the section 214 application 
should not eligible for automatic grant.
    43. For carriers to demonstrate satisfaction of the 99.99 percent 
standard, we establish the following formula: Availability = 1-[(Number 
of Customer Trouble Reports) x (Average Repair Interval)/(Number of 
Lines (prorated)) x (Observation Period Duration)]. For the purpose of 
this calculation, the following definitions apply:
     A ``customer trouble report'' is any report regarding 
trouble with service made by a customer to a carrier's service 
department in which the customer reports either: (1) A total loss of 
connectivity, or (2) an inability to make and/or receive any voice 
calls using the carrier's voice replacement service while other 
services provided over the customer's connection may continue to 
function. The number of customer trouble reports must be tallied over 
all lines that are serving customers in the replacement network in the 
affected service area at any time during a contiguous 30-day 
observation period.
     A ``repair interval'' is the elapsed time, as on a running 
clock, from when a customer reports a trouble to the carrier's service 
department until the carrier's repair of the trouble is complete and 
the customer's service is restored. If a customer reports trouble with 
service during the 30-day

[[Page 62638]]

observation period that is not resolved by the end of the 30-day 
observation period, the length of the repair interval runs from the 
time the trouble with service is reported to the end of the observation 
period. The elapsed time may be recorded in measurement units of the 
applicant's choosing, as precisely as the applicant chooses. When 
rounding is required, however, elapsed time must always be rounded up 
to the next higher measurement unit. The ``average repair interval'' is 
then calculated by summing the lengths of all repair intervals, over 
all lines that are serving customers in the replacement network, and 
dividing that sum by the number of customer trouble reports in the 30-
day observation period.
     ``Number of lines (prorated)'' is the number of 
replacement network lines being served by the provider during the 30-
day observation period. For the purpose of this calculation, lines 
served for part of the observation period should be pro-rated. A line 
that is in service for the entire duration of the observation period is 
counted as 1 line. When required, round fractional lines to the nearest 
hundredth of a line.
     The ``observation period duration'' should be expressed in 
the same units as the average repair interval.
    44. In reporting the results of the availability calculation to the 
Commission as part of an application seeking streamlined treatment for 
a technology transition discontinuance, the applicant must report: (1) 
The number of customer trouble reports; (2) the average repair 
interval; (3) the number of lines (prorated); and (4) the calculated 
availability.
    45. Congestion-Based Voice Call Failure. Certain non-packet 
wireless access technologies providing fixed services can experience 
the failure of voice calls because of network congestion. To address 
this potential issue, we establish a metric that applies solely to 
these technologies for determining the frequency of congestion-based 
voice call failure, meaning the probability that a customer trying to 
make a call will be unable to do so due to network congestion. We 
conclude that probability must be less than one percent during each 
daily peak busy hour, for at least 95 percent of the 30 days in the 
measurement period, to serve as an adequate replacement for a legacy 
voice service.
    46. To calculate this benchmark for purposes of remaining eligible 
for automatic grant, the provider must calculate the probability of 
congestion-based voice call failure for every hour. For each of the 30 
days measured, the provider must then determine the hour that had the 
highest probability of congestion-based voice call failure that day. 
The probability of congestion-based voice call failure each hour should 
be determined by dividing the number of failed calls during the hour by 
the total number of call attempts during the hour. For 95 percent of 
the total days, the failure probability during the hour with the 
highest failure probability must be less than one percent, i.e., for at 
least 95 percent of the total days, less than one percent of all calls 
may be blocked in the worst hour due to unavailability of a radio 
access channel. These measurements would not be taken on a sample 
basis, but would be collected at each cell tower over all call attempts 
to or from customers for a 30-day period. In addition, if there are 
seasonal differences in traffic load--for example, if the area is a 
summer resort community--measurements to determine probability of call 
failure must be taken during the busy season.
    47. Network Coverage. In order to meet this aspect of the network 
performance prong and be eligible for automatic grant, the applicant 
must demonstrate that either: (i) A single replacement service reaches 
the entire geographic footprint of the service area subject to 
discontinuance; or (ii) there are multiple providers who collectively 
cover the entirety of the affected service area.
    48. If the applicant is relying on a single replacement service, 
whether its own or that of a third party, eligibility for automatic 
grant will depend on whether it demonstrates that the replacement 
service reaches the entire geographic footprint of the area served by 
the legacy voice service. However, in service areas where the applicant 
relies on multiple providers' services, the applicant must demonstrate 
that other providers cumulatively reach all customers in the affected 
coverage area. In order to be eligible for automatic grant, the 
application must: (i) Describe with sufficient particularity the 
geographic scope of the replacement service(s) available from the other 
provider(s), or (ii) otherwise demonstrate that each of these services 
satisfies the criteria we adopt today. We decline to adopt a de minimis 
threshold for judging whether a replacement service offers the same 
coverage. We do not see a basis for drawing such a line.
    49. Access to Critical Applications and Functionalities. Under this 
prong, to remain eligible for automatic grant for a technology 
transition discontinuance application, an applicant must certify or 
show that at least one replacement service complies with regulations 
regarding availability and functionality of 911 service for consumers 
and public safety answering points (PSAPs), industry standards 
regarding communications security, and regulations governing 
compatibility with assistive technologies.
    50. 911 and Emergency Services. To satisfy the second prong of the 
adequate replacement test and remain eligible for automatic grant, 
applicants must certify or show compliance with: (i) 911 accessibility 
and location accuracy requirements; (ii) reliability and continuity of 
911 service requirements with respect to backup power; and (iii) any 
other applicable emergency service requirements. The basic 911 service 
requirement is the transmission of wireless 911 calls to the PSAP (or 
designated default answering point or appropriate local emergency 
authority) without respect to their call validation process, and 
without reference to location accuracy.
    51. 911 Accessibility and Location Accuracy Requirements. The 
applicant must demonstrate that the replacement service complies with 
applicable regulations regarding the availability and required 
functionality of 911 service. Those regulations include the rules 
governing: (i) 911 call delivery, service, and location; (ii) the 
capabilities and routing necessary for consumers' continued access to 
911 emergency service; and (iii) 911 calls to PSAPs or other 
appropriate local emergency authorities.
    52. In order to satisfy this prong of the adequate replacement test 
and thus remain eligible for automatic grant, the replacement service 
must offer a dispatchable address capability. Traditional landline 
service generally guarantees the provision of Master Street Address 
Guide (MSAG)-validated address information to ensure proper call 
routing, location determination, and dispatch of emergency responders. 
Provision of other types of location information, such as wireless 911 
ALI coordinates, would not ensure that the service provides an adequate 
replacement for a legacy voice service. If the rules applicable to the 
replacement service require provision of an MSAG-validated address, the 
applicant may meet this requirement by certifying that its replacement 
service meets the 911 registered location requirements applicable to 
that service. However, if the 911 requirements for the replacement 
service do not require provision of a validated address, the applicant 
must further certify that it will register a validated dispatchable 
address for each subscriber and provide the address to the appropriate 
PSAP for all 911 calls. A dispatchable address is an

[[Page 62639]]

address that includes street name, building number, and any other 
information critical to dispatching emergency responders to the correct 
location and one that meets public safety requirements for inclusion in 
and verification by Automatic Location Information databases and PSAP 
Master Street Address Guides or their functional equivalents. If the 
applicant is relying on a third party service, it must make an 
appropriate showing that the third party service provide meets this 
requirement. As applicable, alternative service providers must also be 
compliant with other Commission rules for 911 call delivery, service, 
and location in order for the applicant to retain eligibility for 
streamlined processing. For the applicant to retain eligibility for 
automatic grant, those alternative service providers must also comply 
with any new dispatchable address/location requirements, as applicable, 
that the Commission may adopt in the future. Consistent with the 
Commission rules regarding discontinuing service to completely exit an 
industry, the applicant seeking streamlined processing is required to 
provide the same advance notice to all PSAPs in its service area, and 
inform the Commission that it has done so. 47 CFR 63.71. These 
requirements also include notifying all affected customers, the 
applicable state agencies, and federally recognized Tribal Nations.
    53. Backup Power. To ensure that consumers continue to receive the 
benefit of continued access to 911, applicants seeking to discontinue a 
legacy line-powered service in favor of a newer service that lacks 
line-powering must certify or make a showing that at least one 
replacement service in the area complies with our residential backup 
power requirements. Alternatively, an applicant may show that another 
provider in the affected area offers line-powering or complies with 
section 12.5. Section 12.5 applies to providers of Covered Services, 
which are defined as ``any facilities-based, fixed voice service 
offered as residential service, including fixed applications of 
wireless service, offered as a residential service that is not line 
powered.'' Section 12.5 requires providers to offer subscribers the 
option to purchase backup power for the Covered Service, with a minimum 
of eight hours of standby backup power. By February 13, 2019, such 
providers must also offer at least one option that provides a minimum 
of twenty-four hours of standby backup power. Providers must also 
notify consumers of the following: (1) Availability of backup power 
sources; (2) service limitations with and without backup power during a 
power outage; (3) purchase and replacement options; (4) expected backup 
power duration; (5) proper usage and storage conditions for the backup 
power source; (6) consumer backup power self-testing and monitoring 
instructions; and (7) backup power warranty details, if any. We are not 
adding to the Rule 12.5 requirements, but ensuring that a service 
provider's compliance with those requirements is a key consideration in 
whether that service represents an adequate replacement for a legacy 
line-powered service.
    54. In order to ensure that consumers are aware of technology 
transitions with sufficient time to take action, we also require 
applicants to provide to consumers the initial notice containing the 
information elements of section 12.5, pursuant to section 63.71. 
Section 63.71(b) states that a carrier shall file its 214 application 
``on or after the date on which notice has been given to all affected 
customers.'' Section 63.71(d) provides that applications shall be 
automatically granted on the 31st day after filing an application for 
non-dominant carriers and the 60th day for dominant carriers, unless 
the Commission notifies the applicant that the grant will not be 
automatically effective. 47 CFR 63.71(d). Consequently, we expect that 
consumers will receive the initial backup power notice before the 
earliest possible date for grant of a section 214 discontinuance 
application--at least 30 days before the change occurs. Although 
section 12.5 requires disclosures be made at the point of sale, we 
anticipate that, in the context of the section 214 discontinuance 
process, it will not be the individual sale of a non-line powered 
service to a consumer that will trigger the need for notification of 
the backup power requirements of section 12.5, but rather the 
transition to a newer technology that may have different backup power 
capabilities. The underlying principle remains the same: Prior to 
initiation of a new service (whether at the point of sale or at the 
time of a technology transition), consumers should have the benefit of 
understanding how to ensure continuity of 911 service through backup 
power. We continue to require annual disclosures to be made as 
described in section 12.5, by any means reasonably calculated to reach 
the individual consumer.
    55. We are not adding to the existing backup power requirements. In 
order for a service to qualify as an adequate replacement, it must 
abide by our existing backup power rules so that consumers receive 
information on backup power in advance of being transitioned to a 
replacement service that lacks line-power. Otherwise, the consumer 
could become aware of the limitations of the replacement service only 
when his or her 911 call does not go through during a commercial power 
outage.
    56. Protecting PSAP Operations. To successfully meet this second 
prong, an applicant must certify or show that at least one replacement 
service complies with 911 network reliability requirements. This 
requirement will help ensure that the transition to the replacement 
service neither impairs the continuity of 911 service to PSAPs, nor 
disrupts the configurations and connectivity necessary for their 911 
operations. This certification or showing imposes no new requirements 
and will not affect our policy work in other Commission proceedings.
    57. Communications Security. To satisfy the second prong of the 
adequate replacement test and remain eligible for automatic grant, an 
applicant must certify or show that the replacement service offers 
comparably effective protection from network security risks. 
Satisfaction of this criterion is part of the adequate replacement test 
required for streamlined processing, and is not mandatory to 
discontinue service generally. This approach allows an applicant 
relying on a third party service to satisfy the adequate replacement 
test without requiring direct knowledge of that third party's security 
posture.
    58. Our overarching objective is to preserve the availability, 
integrity, and confidentiality (AIC) of the network. Availability 
refers to the accessibility and usability of a network upon demand. 
Integrity refers to the protection against the unauthorized 
modification or destruction of information. Confidentiality refers to 
the protection of data from unauthorized access and disclosure, both 
while at rest and in transit. In making the certification or showing 
necessary to demonstrate comparably effective protection from network 
security risks, the applicant must evaluate: (i) Relevant cybersecurity 
standards and practices--whether industry-recognized or related to some 
other identifiable approach--the replacement service employs at the 
time of certification (e.g., a replacement service could employ the 
National Institute of Standards and Technology (NIST) Framework for 
Improving Critical Infrastructure Cybersecurity (NIST Framework) as a 
management tool to inform decisions about cyber risk analysis and 
organize mitigation activity

[[Page 62640]]

and CSRIC IV provides guidance to the Commission on communications 
market sector implementation of the NIST Framework); (ii) what plans 
(if any) the replacement service has to incorporate cybersecurity 
threat information sharing as a part of the replacement service's 
security operations; and (iii) roles and responsibilities for the 
replacement service's cybersecurity, both with respect to the provider 
but also any third parties (e.g., the applicant's vendors or 
contractors), to promote effective accountability for privacy and 
security.
    59. If relying on its own service, the applicant must demonstrate 
that the replacement service offers comparably effective protection 
from network security risks to remain eligible for automatic grant. 
That demonstration can be made in one of two ways. If the applicant's 
network security management practices are enterprise-wide, i.e., the 
enterprise safeguards AIC without differentiation between services, 
geographic areas, or service-providing affiliates, a certification to 
that effect will be sufficient to demonstrate that the replacement 
service offers comparably effective protection from network security 
risks.
    60. Alternatively, the applicant must show that: (i) It has 
evaluated any known risks and vulnerabilities of the replacement 
service; (ii) it has taken measures to address and mitigate the 
enumerated risks and vulnerabilities; (iii) it will inform consumers as 
part of the discontinuance notice required pursuant to section 63.71 
what security measure(s) the consumers should take vis-[agrave]-vis the 
replacement service (e.g., downloading and maintaining up-to-date anti-
virus software) and other steps consumers may take to ensure safe use 
of the replacement service; and (iv) it will undertake best efforts to 
identify any vulnerable facilities (e.g., fire, EMS, law enforcement 
and other critical infrastructure facilities) and users, and work to 
address and mitigate the enumerated risks and vulnerabilities (e.g., 
the use of diverse IP paths for critical infrastructure). Where an 
applicant provides written guidance or Public Service Announcements to 
individuals or organizations in accordance with (iii) and (iv) above, 
the applicant should provide a generic copy of such guidance to the 
Commission. This certification is not a directive on how to address 
network security. Applicants retain flexibility regarding how to 
address such risks.
    61. We recognize the challenges for an applicant to gain access to 
a third party service's cyber risk management process would be 
particularly acute. Therefore, an applicant relying on a third party 
service instead must exercise reasonable diligence to identify the 
security profile of the technology of the replacement service, based on 
the replacement technology's ability to provide availability, 
integrity, and confidentiality. Focusing on the established key 
considerations of confidentiality, integrity, and availability provides 
a frame of reference for identifying the risks associated with the 
replacement technology. We note that a security profile is not intended 
to identify any specific cyber risk management process or specific 
vulnerabilities associated with a particular third party's replacement 
service, but instead serves to identify the general cyber risks, from a 
consumer's perspective, associated with the replacement service's 
technology. This is a particularly effective solution for applicants 
relying on third party services because a security profile may be 
gleaned from open source information and does not require specific 
knowledge of the inherent security of the replacement service. While a 
security profile can be identified using publicly available 
information, it should be arrived at after the applicant undertakes an 
analysis centered on the availability, integrity, and confidentiality 
model described above under the certification approach. In this regard, 
the security profile can adjust to new threats and vectors as they 
emerge.
    62. We seek to ensure that an applicant has established a sound 
basis for its representations about the comparable effectiveness of the 
protections from network security risks employed by a third-party 
replacement service, by exercising a reasonable degree of diligence in 
making those representations in light of all the facts and 
circumstances.
    63. No carrier is required to comply with any specific network 
security standards. We do not dictate what measures a company must 
take, nor do we require that they submit potentially sensitive 
information to the Commission as part of their section 214 application. 
Rather, meeting this criterion is only necessary to satisfy the 
adequate replacement test, and that in turn is only required if they 
wish to remain eligible for automatic grant. Beyond that, the 
Commission has always recognized the importance of network security and 
agrees with commenters that it is a crucial consideration in 
determining whether an adequate replacement service exists. 
Transitioning from legacy-based services to new technologies presents 
new network vulnerability issues that did not exist with legacy 
technologies. We conclude the flexible, individualized approach we take 
to network security addresses concerns that applying a rigid standard 
would be counter-productive. Additionally, while we recognize that 
there is no universal cybersecurity standard to apply, we believe that 
there are generally accepted guidelines and best practices that 
carriers should consider when evaluating their own cybersecurity 
posture or the security profile of the replacement technology.
    64. Services for Individuals with Disabilities. Under the critical 
applications prong, applicants will certify that at least one 
replacement service complies with the Commission's existing applicable 
accessibility, usability, and compatibility requirements governing 
services benefiting individuals with disabilities as a means to ensure 
that the replacement service offers accessibility levels at least as 
effective as those offered by the legacy voice service.
    65. The Commission's rules regarding telecommunications-related 
accessibility requirements govern standards for accessibility, 
usability, and compatibility for: (i) Telecommunications services and 
functionalities; (ii) voicemail and interactive menu functionalities; 
and (iii) advanced communications services (ACS), defined by statute to 
include both interconnected and non-interconnected VoIP service. The 
rules obligate service providers to ensure that a service is accessible 
to and usable by individuals with disabilities ``if readily 
achievable'' for services subject to part 6 or 7 of the rules, and 
``unless not achievable'' for services subject to part 14 of the rules. 
To remain eligible for streamlined processing, an applicant must 
demonstrate that any public mobile service proposed as an adequate 
replacement complies with sections 14.60 and 14.61 of the rules. When a 
standard of accessibility or usability is not achievable, service 
providers are required to ensure the relevant service, functionality, 
or application is compatible with existing peripheral devices or 
specialized customer premises equipment commonly used by individuals 
with disabilities. To remain eligible for automatic grant, providers 
also must comply with rules regarding: (i) Product design, development 
and evaluation; (ii) accessible information pass through; and (iii) 
customer access to information, documentation, and training.
    66. In order to meet this factor under the critical applications 
prong, any new

[[Page 62641]]

service must provide levels of accessibility, usability, and 
compatibility as effective as the legacy voice service to be deemed an 
adequate replacement utilizing a new technology. We also expect that, 
due to reduced costs and heightened capabilities of next-generation 
services, more accessibility features and functionalities will be 
achievable within the meaning of our rules. Thus, we encourage carriers 
to proffer replacement services that have the potential to provide new 
accessibility features and functionalities and to make newly achievable 
features and functionalities available to their customers with 
disabilities.
    67. We also remind carriers and interconnected VoIP service 
providers of their obligation under the existing telecommunications 
relay service rules to provide access to TRS, including 711 dialing 
access. The proposed replacement service or the alternative services 
available from other providers must provide such access, where required 
under the Commission's rules.
    68. To the extent persons with disabilities need to transition to 
new equipment in order to maintain the same functionality or make use 
of improved functionality such as described above, we encourage service 
providers to make that transition as simple and inexpensive as 
possible, particularly for those who do not qualify for existing state 
and federal equipment distribution programs, and for those who are 
replacing devices not covered by equipment distribution programs. 
Interfaces between the network and user equipment and applications 
should facilitate interconnection of low-cost devices and software 
applications that provide accessibility.
    69. We decline to impose an independent requirement with respect to 
real-time text (RTT) technology in this proceeding, but note that any 
requirements adopted in the Real-Time Text Notice of Proposed 
Rulemaking (RTT NPRM) docket would become part of our analysis under 
this factor. The RTT NPRM (2016 WL 1752915; 81 FR 33170-01, May 25, 
2016) proposed rules defining the obligations of wireless service 
providers and equipment manufacturers to support RTT over IP-based 
wireless voice services, and establishing technical standards for 
minimum required functionalities, the support providers must offer for 
those functionalities, and timelines for implementation of this 
transition. The RTT NPRM further sought comment on whether to amend the 
Commission's rules to place comparable responsibilities to support RTT 
on providers and manufacturers of wireline IP services and equipment 
that enable consumers to initiate and receive communications by voice. 
Applicants would be required to adhere to whatever applicable RTT 
implementation obligations and timetables are established by any final 
rules adopted in the RTT NPRM proceeding.
    70. Interoperability with Key Applications and Functionalities. 
Consistent with the FNPRM, 80 FR 57768-01, we define applications as 
offerings that run on TDM-based service, such as home alarm systems and 
modems, whereas functionalities are offerings included in the service, 
such as call-waiting and operator services. At the same time, we make 
clear that carriers are not required to provide access to these 
capabilities in perpetuity.
    71. Identifying Key Applications. Widely adopted low-speed modem 
devices--in particular, fax machines, home security alarms, medical 
monitoring devices, analog-only caption telephone sets, and point-of-
sale terminals--make up the initial list of key applications for which 
applicants seeking automatic grant must demonstrate that any 
replacement service offers interoperability. We will expect replacement 
services to offer compatibility with these devices until 2025, to 
provide time for the marketplace to migrate to new services and 
applications that will provide similar functions. Because the specific 
streamlining criteria we adopt are limited to ensuring adequate 
replacements for legacy voice services, it is not appropriate to adopt 
a low-latency option requirement. Non-voice services to which section 
214(a) discontinuance obligations apply and voice services subject to 
section 214(a) being discontinued in non-technology transitions 
circumstances will continue to be subject to our pre-existing 
discontinuance process, which provides the public an opportunity to 
comment and to which our traditional five-factor balancing test 
applies.
    72. Because the list we adopt today may not be fully inclusive of 
all applications and functionalities that are significantly valued by 
stakeholders, we also adopt a process to supplement this list. We 
direct the Office of Engineering and Technology, working in 
consultation with the Wireline Competition Bureau and the Wireless 
Telecommunications Bureau (together, the Bureaus), and subject to the 
guidelines below, to seek comment and, based on the record developed, 
propose additions to the list of key applications and functionalities 
adopted above for Commission review and approval. Within three months 
of the effective date of the order, the Bureaus will release a public 
notice inviting consumers and industry stakeholders to indicate whether 
additional functionalities and applications should be added to the 
list. The Bureaus will also engage in outreach to solicit input from 
consumer and industry groups.
    73. Relevant considerations in determining whether an application 
or functionality retains value to consumers in the marketplace such 
that it should be made interoperable with any replacement include 
whether: (i) Customers rely on the application or functionality for 
health or safety reasons; (ii) the application or functionality is used 
as a wholesale input by other providers; (iii) the application or 
functionality relies on vendor equipment or inputs that have been 
discontinued; and (iv) the service provider, as opposed to the end-user 
customer, is the least-cost avoider. In this context, either the 
applicant or certain types of end users face costs to maintain 
compatibility with certain applications in the event of technological 
change in the applicant's provision of telecommunications services. The 
least cost avoider is whichever of these two parties faces the least 
costs of adapting to the technological change. Thus, the applicant 
would be the least cost avoider if the cost of making adjustments to 
its upgraded service would allow existing applications to continue to 
operate were much lower than the aggregate costs to end users of 
updating their applications.
    74. The first ``health and safety'' factor will determine whether 
consumers are using or ordering an application or functionality based 
on a TDM service and their relative significance in those consumers' 
lives. We identified medical monitoring devices and home security 
alarms as the type of health and safety applications that remain key in 
the marketplace. The second factor focuses on the consumers who 
subscribe to an application or functionality from a provider who relies 
on the TDM-based service being discontinued. The third factor focuses 
on whether an application or functionality is outdated or operating on 
equipment that is obsolete. The fourth and final factor will look at 
whether the applicant or the end-user customer is able to address the 
interoperability concerns at the least cost.
    75. We recognize that interoperability considerations will likely 
change over time. For that reason, we also conclude it important to 
review regularly the list of key applications to determine

[[Page 62642]]

whether elements of that list no longer are key. We direct staff to 
examine this list as part of each internal biennial review of agency 
regulations. We also direct the Bureaus to propose changes or updates 
to the Commission, in particular to remove any applications or 
functionalities that may become obsolete. The Bureaus will continue 
their biennial review of the key applications and functionalities list 
and certification requirements through the year 2025, at the end of 
which the Bureaus will advise the Commission whether the list remains 
necessary given the status of technology transitions.
    76. Satisfying the Interoperability Standard for Key Applications. 
To maintain eligibility for potential automatic grant status, covered 
applicants must certify or show that a replacement service offers 
interoperability and compatibility of the replacement service with the 
list of key applications and functionalities. Conversely, applicants 
will not be required to demonstrate interoperability with applications 
and functionalities that are not on the list adopted today or as 
modified in the future.
    77. When seeking a section 214 discontinuance, applicants should 
only certify compliance with this prong if the replacement service 
allows the key application to function or perform in a substantially 
similar manner as it did on the legacy voice service. Demonstrating 
applications' adherence to established technical standards would be 
influential in demonstrating achievement of the compliance criteria 
discussed above. Although we decline to adopt any specific standards, 
such as the as the ITU T.38 standard, or the Managed Facilities-Based 
Voice Network (MFVN) standards, adherence to these standards would be 
persuasive evidence of compliance with this prong should the underlying 
certification be challenged. We also note that 64-kbps encoding in 
accordance with ITU G.711 standard would allow a replacement service, 
such as a wireless replacement, to carry any signal that a customer can 
use today with a legacy TDM service. Lower bit rate signals cannot 
carry all the information carried in a 64-kbps signal and therefore 64-
kbps encoding in accordance with ITU G.711 would support applications 
such as fax, credit card transactions, and medical monitoring. This 
would also be persuasive evidence of compliance. The Commission also 
supports any further industry testing efforts.
    78. The approach we announce today will sunset in 2025, at which 
point the interoperability requirement will no longer be part of our 
section 214 analysis. By that time, consumers will have had ample time 
to transition to newer functionalities and applications. Until then, of 
course, parties are always free to request changes by petition or 
submissions in the biennial review process.
    79. Other Issues Regarding the Adequate Replacement Test. We also 
sought comment on whether to include: (i) A partial or full exemption 
from the adequate replacement test for rural LECs, and (ii) 
affordability as a separate criteria under the test.
    80. No Rural LEC Exemption. We decline to provide any rural LEC 
exemption because rural LECs have offered no compelling justification 
as to why these criteria would not be just as beneficial to their 
customers as they would be to the customers of other 214 discontinuance 
applicants in demonstrating the adequacy of replacement services. 
However, we are exempting small businesses, including rural LECs that 
satisfy the standard for this designation, from the network testing 
requirements we adopt today to remain eligible for automatic grant.
    81. We emphasize that the Commission is committed to supporting 
quick and efficient transitions to IP in rural areas, and we do not 
burden rural LECs uniquely or excessively. Nevertheless, we find that 
rural consumers, with often limited choice in service providers, should 
equally benefit from full consideration of the adequacy of any 
replacement service to ensure continued network performance and service 
quality, as well as access to critical applications, and 
interoperability with valued services.
    82. Affordability. The evaluation of how potential price increases 
for alternative services could impact consumers is a critical part of 
the traditional five-factor test for evaluating discontinuance 
applications. When applying the traditional five-factor test to 
determine whether a discontinuance would adversely affect the public 
convenience and necessity, the Commission can fully evaluate issues 
involving price and assess the needs of consumers who may only have 
access to a more expensive replacement service as part of a technology 
transition. We appreciate commenters' suggestions on possible ways to 
evaluate price increases in the context of the technology transitions. 
When called upon to apply this standard in the context of technology 
transitions, the Commission's focus will be on the price to consumers 
before and after a discontinuance resulting from transition to a newer 
technology. Numerous carriers have touted the reduced costs and 
improved capabilities of their next-generation services and networks, 
and we anticipate that we will see those benefits accrue to consumers.
    83. We nonetheless acknowledge the concerns expressed in the record 
about the potential for increased prices to customers for replacement 
services due to technology transitions, and emphasize that the 
Commission is committed to ensuring that technology transitions do not 
unduly impact our most vulnerable citizens. A coalition of public 
interest and civil rights groups urges that we require applicants to 
conduct an impact assessment of the discontinuance on low-income people 
and people of color. We decline to mandate such an impact analysis 
requirement as part of our framework for streamlined processing because 
we consider it unduly burdensome on applicants. Congress expressed its 
intent in the Act to make available communications service to ``all the 
people of the United States,'' and more recently, in the 
Telecommunications Act of 1996, Congress asserted the principle that 
rates should be ``affordable,'' and that access should be provided to 
low-income consumers in all regions of the nation. More broadly, we are 
taking actions to promote affordability of next-generation services in 
a variety of proceedings. We recently modernized our Lifeline program 
by taking a variety of actions that work together to encourage more 
Lifeline providers to deliver supported broadband services as we 
transition from primarily supporting voice services to targeting 
support at modern broadband services. In approving Charter's 
acquisition of Time Warner Cable and Bright House, the Commission 
imposed a condition requiring the combined company to make available a 
discounted broadband service for low-income consumers. In the order 
approving the AT&T/DIRECTV transaction, the Commission required as a 
condition of this transaction that the combined company make available 
an affordable, low-price standalone broadband service to low-income 
consumers in the combined AT&T/DIRECTV wireline footprint. Altice and 
Cablevision also committed to providing a low-income broadband package 
to all eligible customers in Cablevision's footprint within fifteen 
months after closing. Under the Commission's rules, recipients of high-
cost universal service support are required to offer voice and 
broadband services at rates that are reasonably comparable to offerings 
of comparable services in urban areas. Consistent with these statutory

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objectives, affordability has always been--and will continue to be--a 
critical component of the Commission's determination as to whether a 
particular discontinuance request is consistent the Commission's 
obligation to ensure the public interest is protected.
    84. Nothing we adopt today limits that obligation. While we do not 
include affordability as a separate criterion under the adequate 
replacement test we adopt today, affordability remains a critical part 
of the Commission's underlying evaluation of discontinuance requests. 
Therefore, the cost of replacement services will be considered both 
before issuing the Public Notice and during the comment period. Bureau 
staff review applications for completeness, accuracy, and fulfillment 
of all predicate requirements, including providing notice to affected 
customers, before issuing the Public Notice. In order to be considered 
for streamlined processing, applicants must include information about 
the price of replacement services compared to the legacy service in 
their application. The Bureau will not place an application on 
streamlined processing if there is a material increase in price for the 
replacement service compared to the service to be discontinued. 
Moreover, consumers affected by potential discontinuances and their 
advocates will continue to have the opportunity to offer comments and 
objections in the streamlined process. Should we receive evidence of 
material price increases for comparable services, particularly those 
with a disproportionate impact on vulnerable populations, we would 
remove that application from consideration for automatic grant.
    85. Certain commenters also contend that the adequate replacement 
test should include a requirement that the discontinuance will not 
result in the loss of Lifeline service. We emphasize that the test we 
announce today does not change or disturb in any way the eligible 
telecommunications carrier (ETC) obligations of any incumbent carrier 
to offer Lifeline service. In the recent Lifeline Reform Order, the 
Commission concluded that if an incumbent LEC is the only Lifeline 
provider in a given census block, it retains the ETC obligation to 
offer voice service. That requirement exists independent of the section 
214 discontinuance process. Thus, if there is no other Lifeline 
provider in the community for which discontinuance is sought, the 
incumbent LEC cannot terminate voice service to Lifeline subscribers, 
and it must continue to offer Lifeline voice service to any qualifying 
Lifeline household.
    86. Other Issues Related to the Discontinuance Process. Consumer 
Education. Discontinuance of an existing service on which customers 
rely creates a need for customer education. To help ensure seamless 
transitions, we conclude that an applicant must offer adequate customer 
education materials and outreach plans when discontinuing a service as 
part of a technology transition. We wish to establish guidelines, not 
impose an unduly rigid mandate that forecloses flexibility. 
Nonetheless, those guidelines need to be clear enough to allow 
applicants to understand how to achieve compliance. To be clear, this 
consumer education requirement applies to the same universe of 
discontinuance applications as the new adequate replacement test, and 
the procedures governing all other discontinuance applications are 
undisturbed.
    87. An adequate customer outreach plan must, at a minimum, involve: 
(i) The development and dissemination of educational materials provided 
to all customers affected containing specific information pertinent to 
the transition, as specified in detail below; (ii) the creation of a 
telephone hotline and the option to create an additional interactive 
and accessible service to answer questions regarding the transition; 
and (iii) appropriate training of staff to field and answer consumer 
questions about the transition. All aspects of the consumer outreach 
plan, including the educational materials, the telephone hotline, and a 
carrier's contact information must be provided in accessible and usable 
formats. To ensure that customers understand the notice that they 
receive, any applicant who in the ordinary course of business regularly 
uses a language other than English in its communications with customers 
must provide the education materials to customers in both English and 
that regularly used language. The Commission will consider a carrier's 
certification of its compliance with these requirements as part of its 
overall analysis of whether granting the application would be in the 
public interest.
    88. Similar to the DTV transition outreach requirements, the 
required educational materials to customers may be provided as a ``bill 
stuffer,'' an information section on the bill itself, or as a discrete 
communication sent in the manner most commonly used to communicate with 
the customer. We recognize that certain customers do not receive a 
monthly bill (e.g., those using auto-payment plans), and thus provide a 
separate option. As billing practices change over time, the way in 
which customers receive educational materials is subject to change as 
well. The materials must be delivered in accessible and usable formats 
and include, at minimum: (i) A general description of the changes to 
the service, written in a non-technical manner that can be readily 
understood by the average consumer; (ii) the impact on existing 
applications and functionalities that are liked to be purchased by 
individual customers, including whether such applications, and 
functionalities will be available following the transition; (iii) any 
change in the price of the service and impact on applications and 
functionalities which run on the service to be discontinued; and (iv) 
points of contact who will address technology transitions issues, as 
much as is practicable. We recognize that third parties unrelated to 
the applicant provide many applications that run on the service. We 
would encourage third parties to cooperate with these consumer 
education efforts, but acknowledge that access to third party 
information may not be possible. If the applicant is relying on a third 
party service, we will further require the applicant to provide: (i) 
Contact information for that third party and (ii) upon inquiry from a 
consumer, information regarding the interoperability and compatibility 
of applications benefiting individuals with disabilities that run on 
the applicant legacy voice service.
    89. We also encourage, but do not require, applicants to submit 
their consumer education materials to the relevant state commission(s) 
and/or Tribal government. We emphasize that there is an important role 
for state commissions and Tribal governments in promoting consumer 
education around the discontinuance of legacy voice services. As we 
noted in the Emerging Wireline Order in the context of copper 
retirement, states traditionally have played a critical role in 
consumer protection, and we strongly encourage carriers seeking to 
discontinue legacy voice services 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 
will not, however, impose a mandate regarding outreach to state 
commissions and Tribal entities, because we believe it would unduly 
burden both industry and state and Tribal entities.
    90. The applicant is required to provide an accessible telephone 
hotline staffed at least 12 hours per day, including between the hours 
of 9 a.m. and 5 p.m., to answer questions

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regarding the discontinuance, as some individuals with disabilities 
cannot afford Internet access, or may lack a reliable means of Internet 
access in their area. The applicant also has the option to additionally 
provide other interactive and accessible services (e.g., an online chat 
with a customer service representative) to answer questions regarding 
the discontinuance.
    91. An applicant must designate staff trained to assist consumers 
with disabilities with the complex disability access issues related to 
the transition. The method for contacting these staff must be posted on 
an applicant's Web site. To accommodate consumers who may not be able 
to access the Internet, such contact information should be also 
publicized via alternate means that are up to the applicant's 
discretion, such as in the required education materials included with 
billing statements, promotional materials, or publications disseminated 
by national consumer organizations.
    92. Email Notice. We revise our rules to explicitly permit carriers 
to provide customers notice of discontinuances via email where those 
customers have previously agreed to receive notice from the carrier by 
that method. The Commission's rules currently require a carrier 
planning to discontinue, impair, or reduce service as defined under 
section 214 of the Act to notify all affected customers, the governor 
of the state affected, that state's public utility commission, and the 
Secretary of Defense. A copy of the relevant section 214 application 
also must be submitted to the public utility commission, governor, and 
secretary of defense. In the FNPRM, 80 FR 57768-01, the Commission 
sought comment on whether to revise these rules to allow email-based or 
other forms of electronic notice of discontinuance to customers, 
including whether alternative forms of notice should be permissible 
only with customer consent and, if so, what methods to obtain consent 
should be permissible.
    93. The record confirms our belief that email is the preferred 
method of notice for many carriers seeking discontinuance, as well as 
for consumers. We also explicitly permit carriers to provide notice by 
any other alternative method to which the customer has previously 
agreed. We decline, however, to afford carriers the blanket ability to 
give notice to customers in whatever form those carriers believe is 
most efficient, regardless of whether the customer has agreed to that 
method. In both instances, the same provisos adopted in connection with 
the recently-adopted copper retirement rules shall apply. For example, 
notice must be made in a clear and conspicuous manner; and may not 
contradict or be inconsistent with any other information with which it 
is presented. In addition, (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) an incumbent LEC must ensure that 
the subject line of the message clearly and accurately identifies the 
subject matter of the email; and (c) any email notice returned to the 
carrier as undeliverable will not constitute the provision of notice to 
the customer.
    94. Notice to Tribal Governments. We revise our rules to require 
all carriers to provide notice of discontinuance applications to any 
federally-recognized Tribal Nations with authority over the Tribal 
lands in which the discontinuance, reduction, or impairment of service 
is proposed, in addition to the notice already required to state PUCs, 
state Governors, and the Department of Defense. This outcome aligns the 
notice requirements for section 214 discontinuance applications and 
copper retirement network changes, imposes the same requirement on all 
carriers serving Tribal lands, and places Tribal governments in all 
states in a position to prepare and address any concerns from consumers 
in their Tribal communities.
    95. Timing of Notice. Unlike the Emerging Wireline Order, where the 
record on the copper retirement notice period reflected numerous 
instances in which competitors and their customers suffered actual harm 
due to the notice period, commenters in this proceeding have not 
offered specific evidence of actual harm caused by the discontinuance 
notice provisions in section 63.71. We therefore decline to revise 
section 63.71 to require advance notice of a planned discontinuance or 
to lengthen the discontinuance process by changing the existing 
timeline for filing objections and/or allowing automatic grant. We 
nonetheless recognize that large-scale technology transition-related 
discontinuances have not yet occurred. Thus, while we do not take 
action today to revise section 63.71, we emphasize that the Commission 
may revisit this issue if presented with evidence of such a need in the 
future.
    96. Non-Substantive Change to Code of Federal Regulations. Our 
current rules require that public notices of network changes, which 
include copper retirement notices, be labeled with one of a variety of 
enumerated titles, ``as appropriate.'' In the Emerging Wireline Order, 
we adopted a unique set of network notification requirements specific 
to incumbent LEC retirement of copper facilities. However, none of the 
titles enumerated in section 51.329(c) relate specifically to copper 
retirement notices. To alleviate this potential confusion and to allow 
the public to readily differentiate copper retirement notices from all 
other types of network change disclosures, we adopt two new titles to 
those already included in section 51.329(c): ``Public Notice of Copper 
Retirement Under Rule 51.332'' and ``Certification of Public Notice of 
Copper Retirement Under Rule 51.332.''
    97. Clarification of Copper Retirement Notice Rules. Under the 
recently adopted revised copper retirement rules, copper retirement 
notices to retail customers must include ``[t]he name and telephone 
number of a contact person who can supply additional information 
regarding the planned changes.'' Those same notices must also include 
``a toll-free number for a customer service help line'' in the 
requisite neutral statement of the services available to the incumbent 
LEC's retail customers. To alleviate potential confusion regarding 
whether an incumbent LEC must include the name and phone number of a 
specific individual in copper retirement notices in addition to a toll-
free number for a customer service center, we clarify that copper 
retirement notices to enterprise customers must include the name and 
address of a contact person who can provide additional information 
regarding the planned change, as required by section 51.327(a)(2). 
Enterprise customers are all business customers other than those 
considered very small. For copper retirement notices to mass market 
customers, however, inclusion of the toll free number for a customer 
service help line required by section 51.332(c)(2)(i)(C) will be 
sufficient to satisfy the requirements of section 51.327(a)(2). Mass 
market customers consist of residential customers and very small 
business customers. Very small businesses typically purchase the same 
kinds of services as do residential customers, and are marketed to, and 
provided service and customer care, in a similar manner.
    98. ORDER ON RECONSIDERATION. In response to a Petition for 
Reconsideration filed by TelePacific, we revise the Commission's rules 
to make a competitive LEC's application for discontinuance deemed 
granted on the effective date of any copper retirement that made the 
discontinuance unavoidable, so as long as the

[[Page 62645]]

discontinuance application is filed at least 40 days prior to the 
retirement effective date. This will address a gap in our rules that 
left competitive LECs potentially vulnerable to violating our 
discontinuance rules for reasons entirely outside of their control.
    99. Background. The Commission addresses changes in carriers' 
facilities and changes to their services through separate rules. 
Changes to a carriers' facilities are subject to the Commission's 
network change disclosure rules, which are notice-based. Changes to a 
carrier's service, however, are subject to the Commission's service 
discontinuance rules, which require Commission approval. All references 
to the section 214 discontinuance process encompass the reduction or 
impairment of service under section 214 as well.
    100. In the Emerging Wireline Order, the Commission revised its 
copper retirement notice rules to require 180 days' advance notice to 
interconnecting entities and non-residential retail customers and 90 
days' advance notice to residential retail customers. Under the prior 
rules, a carrier could provide as little as 90 days' notice of a 
planned copper retirement to interconnecting telephone exchange service 
providers, and it was not required to provide any notice to retail 
customers.
    101. On November 18, 2015, U.S. TelePacific Corp. (TelePacific) 
filed a Petition for Reconsideration of the Emerging Wireline Order to 
address what it perceives to be a gap between the Commission's copper 
retirement and discontinuance processes that could require a 
competitive LEC to seek Commission authorization to discontinue 
broadband service to its end user customers when a planned retirement 
would cause the loss of access to copper facilities over which it 
provides broadband service.
    102. Among other problems, TelePacific could unavoidably find 
itself out of compliance with the Commission's rules if the copper 
retirement becomes effective and the incumbent LEC cuts off access to 
its copper before the Commission approves TelePacific's discontinuance 
application.
    103. The Commission's rules require that a carrier file its section 
214 discontinuance application ``on or after the date on which notice 
has been given to all affected customers.'' The rules provide for 
automatic grant of applications on the 31st day after filing for non-
dominant carriers and the 60th day after filing for dominant carriers, 
unless the Commission removes the application from streamlined 
processing. The Commission may in its discretion remove the 
discontinuance application from streamlined processing. Thus, the 
application could remain pending at the time the copper retirement 
becomes effective. These potential outcomes, TelePacific contends, 
arise from an unintended defect in the competitive safety net the 
Commission created in the Emerging Wireline Order by the combination of 
the 180-day copper retirement notice period and the interim reasonably 
comparable wholesale access rule.
    104. To address potential harm to its competitors and consumers, 
TelePacific recommends either: (i) Automatically granting a section 214 
application on the date of a copper retirement, as long as the 
application is submitted at least 60 days before implementation of a 
copper retirement; or (ii) ``requir[ing] a delay in the copper 
retirement until the competitive LEC's discontinuance no longer creates 
`an unreasonable degree of customer hardship.' '' There is currently no 
mechanism for delaying a copper retirement, assuming the incumbent 
LEC's notice complies with the Commission's rules.
    105. Discussion. We revise the Commission's rules to harmonize the 
discontinuance and newly-revised copper retirement processes. 
Accordingly, if a competitive LEC files a section 214(a) discontinuance 
application based on an incumbent LEC's copper retirement notice in 
situations where the incumbent is not discontinuing TDM-based service, 
the competitive LEC's application will be automatically granted on the 
effective date of the copper retirement as long as it satisfies two 
conditions. First, the competitive LEC's discontinuance application 
must be submitted to the Commission at least 40 days before the 
incumbent LEC's copper retirement effective date. Section 63.71(e) of 
the Commission's rules provides that ``an application will be deemed 
filed on the date the Commission releases public notice of the 
filing.'' For purposes of the requirement we adopt today, the 40 days 
will be measured from the date of submission for filing rather than on 
the date the application is deemed filed under section 63.71(e). 
Second, the competitive LEC's discontinuance application must contain a 
certification that the basis for the application is the incumbent LEC's 
planned copper retirement. Under this new requirement, competitive LECs 
will have more than four months to consider the implications of the 
planned copper retirement and weigh their alternatives.
    106. As discussed above, the copper retirement and discontinuance 
processes are distinct, the former based on notice and the latter on 
approval. We conclude this approach strikes the right balance and 
harmonizes the two processes. A competitive LEC will not be faced with 
a pending discontinuance application after it loses access to copper 
following a copper retirement, and incumbent LECs maintain certainty in 
the timing of their copper retirements. We therefore grant in part 
TelePacific's petition.
    107. However, we deny the portion of the Petition that seeks 
broader relief. Indefinitely delaying a planned copper retirement is an 
untenable option. In the Emerging Wireline Order, we noted 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.'' Thus, in extending the copper retirement notice period, we 
rejected the opportunity to provide for a notice period longer than six 
months. Creating the potential for an indeterminate period of time 
before an incumbent LEC can proceed with a planned copper retirement 
would insert delay and uncertainty into the process and might deter 
deployment of next-generation technologies, thus undermining the 
balance we sought to attain when adopting the 180-day copper retirement 
notice period. Indeed, delaying copper retirements until any 
unreasonable degree of hardship to a competitive LEC's customers is 
eliminated would transform the copper retirement process from notice-
based to approval-based. Because the Act requires only that incumbent 
LECs ``provide reasonable public notice'' of network changes such as 
copper retirements, we rejected such a result in the Emerging Wireline 
Order. We reaffirm that conclusion here.
    108. Although delaying a copper retirement would provide carrier-
customers and end user customers with the additional time they need to 
consider their options and take steps to minimize disruption of service 
and might even prevent the need for a competitive LEC to file a 
preemptive section 214 application, this also would create a subjective 
standard with resulting uncertainty in timing for the incumbent LEC 
such that it would not be able to plan the specific timeframe of its 
network changes with confidence. This in itself might discourage or 
delay certain technology transitions, contrary to the Commission's 
commitment to support and encourage the deployment of innovative and 
improved communications networks.

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    109. Paperwork Reduction Act Analysis. The Second 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 will be 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: (1) Require carriers to demonstrate that a service is an 
adequate replacement for a legacy voice service by certifying or 
showing that one or more replacement service(s) offers each of the 
following: (i) Substantially similar levels of network infrastructure 
and service quality as the applicant service; (ii) compliance with 
existing federal and/or industry standards required to ensure that 
critical applications such as 911, network security, and applications 
for individuals with disabilities remain effective; and (iii) 
interoperability and compatibility with an enumerated list of 
applications and functionalities determined to be key to consumers and 
competitors; (2) explicitly permit carriers to provide customers notice 
of discontinuances via email where those customers have previously 
agreed to receive notice from the carrier by that method; (3) require 
carriers to provide notice of planned discontinuances to Tribal 
governments in the state in which the discontinuance is proposed; (4) 
require carriers to provide pricing information about the applicant 
service subject to discontinuance and the proposed replacement service; 
and (5) require carriers to provide an adequate consumer outreach plan 
and accompanying consumer education materials when discontinuing legacy 
retail services. We also revise section 51.329(c) of the Commission's 
rules to include two new titles that may be used to label public 
notices of network changes. And in the Order on Reconsideration, we 
revise the Commission's rules to provide that if a competitive LEC 
files a section 214(a) discontinuance application based on an incumbent 
LEC's copper retirement notice without an accompanying discontinuance 
of TDM-based service, the competitive LEC's application will be 
automatically granted on the effective date of the copper retirement as 
long as (1) the competitive LEC submits its discontinuance application 
to the Commission at least 40 days before the incumbent LEC's copper 
retirement effective date, and (2) the competitive LEC's discontinuance 
application contains a certification that the basis for the application 
is the incumbent LEC's planned copper retirement. We have assessed the 
effects of these requirements and find that any burden on small 
businesses will be minimal because: (1) We do not require carriers to 
conduct testing or otherwise meet the criteria we adopt today; (2) 
carriers already conduct testing when developing their networks; (3) 
once a carrier completes testing of a next-generation service and 
successfully obtains automatic grant, it need not provide testing 
results again if it files an application involving a substantially 
similar replacement service; (4) we include a small business exemption 
from the testing requirements; (5) we are not imposing new standards of 
service on carriers seeking to discontinue existing services; (6) we 
are permitting carriers to provide notice to customers by means through 
which the customer has already agreed to receive communications from 
the carrier; (7) the notice that carriers must provide to Tribal 
governments is the very same notice they must already provide to the 
public utility commission and to the governor of the state in which the 
discontinuance, reduction, or impairment of service is proposed, and to 
the Secretary of Defense; (8) carriers must already appropriately label 
their network change disclosures; and (9) we address a gap in our rules 
such that now a competitive LEC will not be faced with a pending 
discontinuance application after it loses access to copper following a 
copper retirement and incumbent LECs maintain certainty in the timing 
of their copper retirements.
    110. Congressional Review Act. The Commission will send a copy of 
this Second Report and Order and Order on Reconsideration to Congress 
and the Government Accountability Office pursuant to the Congressional 
Review Act.
    111. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980, as amended (RFA), the Commission 
included an Initial Regulatory Flexibility Analysis (IRFA) of the 
possible significant economic impact on a substantial number of small 
entities of the policies and rules proposed in the Emerging Wireline 
Order and FNPRM in GN Docket No. 13-5, 80 FR 57768-01. The Commission 
sought written public comment on the proposals in the FNPRM, including 
comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) 
conforms to the RFA.
    112. Need for, and Objectives of, the Final Rules. In the Emerging 
Wireline Order and FNPRM, 80 FR 57768-01, the Commission 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. In this Order, we further those values by updating our 
review and notice procedures governing the filing and review of 
technology transitions discontinuance applications filed pursuant to 
section 214 of the Act. Furthering these core values will accelerate 
customer adoption of technology transitions. The Order adopts rules 
that will appropriately manage the technology transitions, and develop 
the right framework for new technologies. To fulfill the Commission's 
goal of stripping away the outdated and unnecessary, we have provided 
common sense solutions in the interim until this as yet not fully 
formed new technology regime emerges.
    113. In this Order, we define our expectations for what the public 
interest will require before a carrier can take a legacy voice service 
off the market and refine our section 214 discontinuance notice 
requirements to ensure that the public is aware of and prepared for 
such transitions. The action we take is in the public interest as we 
are providing certainty to carriers, thereby advancing technology 
transitions.
    114. Technology Transitions Discontinuance Applications. In the 
context of discontinuance applications related to technology 
transitions, the public interest requires that applicants filing to 
discontinue a legacy TDM-based voice service as part of a transition to 
a new technology, whether IP, wireless, or another type (technology 
transition discontinuance applicants) must identify in the application 
that a technology transition is implicated. Unlike traditional 
discontinuance applications, in order to retain eligibility for 
streamlined processing and potential automatic grant, the Order 
requires that technology transition discontinuance applicants submit 
with their application either a certification or a showing as to 
whether an adequate replacement exists in the service area. Applicants 
also must submit price

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information about the service subject to discontinuance and the 
proposed replacement service.
    115. Specifically, the Order requires that an applicant for a 214 
discontinuance demonstrates that a service is an adequate replacement 
for a legacy voice service by certifying or showing that one or more 
replacement service(s) offers each of the following: (i) Substantially 
similar levels of network infrastructure and service quality as the 
applicant service; (ii) compliance with existing federal and/or 
industry standards required to ensure that critical applications such 
as 911, network security, and applications for individuals with 
disabilities remain available; and (iii) interoperability and 
compatibility with an enumerated list of applications and 
functionalities determined to be key to consumers and competitors.
    116. Technology transition applicants can either demonstrate 
compliance with these objective criteria or make a demonstration that, 
despite not being able to meet the criteria, the totality of the 
circumstances demonstrates that an adequate replacement nonetheless 
exists. Applicants either (i) certifying or (ii) demonstrating 
successfully through their showing that an adequate replacement exists 
remain eligible for automatic grant pursuant to section 63.71(d) of the 
Commission's rules as long as the existing requirements for automatic 
grant are satisfied. To ensure that consumers receive the integrated 
service experience they need and deserve, the Order requires that a 
single service (whether first- or third-party) satisfy all three prongs 
of the adequate replacement test in order to be eligible for automatic 
grant.
    117. The Order explains that if an applicant cannot certify or make 
that showing, or declines to pursue the voluntary path of streamlined 
treatment, it must include in its application an explanation of how 
their proposed discontinuance will not harm the public interest with 
specific reference to the five factors the Commission traditionally 
considers. The Bureau, acting on delegated authority, will then weigh 
that information as part of the traditional multi-factor evaluation, 
but with the adequate replacement factor subject to increased scrutiny 
under the newly enhanced test.
    118. The Order rejects calls from incumbent LECs to presume that 
particular technologies, by their nature, represent an adequate 
replacement for legacy voice services in all instances. Our public 
interest analysis demands that applicants provide objective evidence 
showing a replacement service will provide quality service and access 
to needed applications and functionalities. At the same time, we 
recognize the importance of promoting speedy transitions. Therefore, 
the Order allows a for a more streamlined approach for discontinuances 
involving services that are substantially similar to those for which 
section 214 discontinuance has previously been approved. Commenters 
will have the opportunity to rebut an applicant's planned reliance on a 
previous application if they can offer substantial evidence that the 
technology or network infrastructure are not in fact substantially 
similar to the service subject to the certifications in the previous 
application or the certifications have been proven unreliable, based on 
significant consumer complaints or new independent data. The practical 
effect of this rule is to allow the applicant to bypass the performance 
testing requirements. This streamlined approach benefits applicants, 
while protecting the interests of all stakeholders, industry and 
consumers.
    119. The Order further streamlines the section 214 process in 
instances where consumers no longer subscribe to legacy voice services. 
Although this rulemaking is focused primarily on technology 
transitions, the Commission emphasizes the market is constantly 
evolving, even outside the context of these crucial transitions. For 
that reason, the Commission adopts AT&T's commonsense proposal that a 
section 214 discontinuance application be eligible for automatic grant 
without any further showing if the applicant can demonstrate that the 
service has zero customers in the relevant service area and no requests 
for service in the last six months.
    120. The Order also rejects incumbent LECs' contention that we 
should establish timelines for reviewing applications that are not 
eligible for automatic grant. The Order rejects this request because 
the public interest demands that we provide appropriate scrutiny and 
careful review to discontinuance applications related to technology 
transitions given their novelty and complexity, and we cannot guarantee 
at this time how long that process will take. Such timelines could 
force the Commission to shortchange its responsibility to ensure that 
technology transitions result in high service quality and successful 
customer experiences.
    121. The Order finds that both first and third party services 
should be eligible as potential adequate replacement services. The 
Order concludes that applicants relying on a third party service should 
be allowed to make a prima facie showing based on publicly available 
information as to whether the third party service meets our test as an 
adequate replacement. The Order emphasizes that the adequate 
replacement test is only part of the public interest analysis, and the 
Commission will take into account an applicant's faultless inability to 
access necessary data and information from a third party when reviewing 
any application that relies on the existence of third party services to 
meet the adequate replacement test. An objector to a section 214 
application relying on a third party service must rebut the prima facie 
showing made by the applicant. Should the objector raise legitimate 
concerns, the Commission will remove the application from consideration 
for automatic grant. In attempting to rebut such a showing, members of 
the public who use the third party service can agree to participate in 
tests necessary to measure network performance, as required under the 
criteria.
    122. The Order declines to provide any rural LEC exemption. The 
order concludes that rural consumers, with often limited choice in 
service providers, should equally benefit from full consideration of 
the adequacy of any replacement service to ensure continued network 
performance and service quality, as well as access to critical 
applications, and interoperability with valued services. Moreover, the 
Order concludes that rural LECs have offered no compelling 
justification as to why the adequate replacement criteria would not be 
just as beneficial to their customers as they would be to the customers 
of other 214 discontinuance applicants in demonstrating the adequacy of 
replacement services. However, as discussed below, we are exempting 
small businesses, including rural LECs that satisfy the standard for 
this designation from the network testing requirements we adopt today 
to remain eligible for automatic grant.
    123. The Order does not include affordability as a separate 
criterion under the adequate replacement test but states that the cost 
of replacement services will be considered during the application 
review process. The Order concludes that if there is a material 
increase in the price for the replacement service compared to the 
service to be discontinued, the Bureau will not place the application 
on streamlined processing.
    124. Adequate Replacement Test. After adopting the general 
framework, the Order details a three-prong adequate

[[Page 62648]]

replacement test that enables potential automatic grant of a 
discontinuance application. We emphasize that no carrier must meet 
these criteria or conduct testing. Also, the adequate replacement 
factor is merely one part of a multifactor balancing test, and the 
benchmarks associated with the criteria provide guidance to carriers 
and a path toward automatic grant of their technology transitions 
discontinuance applications. We also emphasize that once a carrier 
completes testing of a next-generation service and successfully obtains 
automatic grant, it need not conduct testing again if it files an 
application involving a substantially similar replacement service.
    125. Prong One: Network Infrastructure and Service Quality. First, 
consumers expect and deserve a replacement for an applicant service 
that will provide comparable network quality and service performance. 
Therefore, the Order requires that to satisfy the first prong of the 
adequate replacement test and thus remain eligible for automatic grant, 
an applicant must demonstrate that a service or combination of services 
provides: (a) Substantially similar network performance as the service 
being discontinued, which involves satisfying benchmarks for latency 
and data-loss; (b) substantially similar service availability as the 
service being discontinued, which involves satisfying a benchmark of 
99.99 percent availability calculated by using data regarding customer 
trouble reports, the average repair interval in responding to those 
reports, the number of lines in the service area, and the duration of 
the observation period; and (c) coverage to the entire affected 
geographic service area, which involves demonstrating that either: (i) 
A single replacement service reaches the entire geographic footprint of 
the service area subject to discontinuance, or (ii) there are multiple 
providers who collectively cover the entirety of the affected service 
area. The Order interprets ``substantially similar'' in this context to 
mean that the network operates at a sufficient level with respect to 
the metrics identified in the Order, such that the network platform 
will ensure adequate service quality for time-sensitive applications, 
and support applications and functionalities that are associated with 
these services.
    126. Network Performance. The Order finds that 30 days of network 
performance testing is necessary, at least initially, to ensure that 
applicants actually meet the benchmarks we have established to be 
eligible for automatic grant and to ensure that the network is in a 
stable state and to allow for long-term projection of network 
infrastructure performance. The Order emphasizes that network 
performance has long been a hallmark of this country's communications 
networks and that must continue during the technology transitions. The 
Order specifies the testing methodology to be used in measuring network 
performance in order to avoid confusion and argument over the merits of 
particular results reported by carriers in their discontinuance 
applications. Moreover, established testing parameters will ensure that 
the Commission analyzes similar data sets from applicants in the 
technology transitions. While the Order provides some flexibility in 
the testing parameters an applicant will use, the Commission will 
include in its evaluation of the discontinuance application whether the 
testing conditions used were appropriate to measure performance. Thus, 
in addition to testing results, the Commission will consider the 
testing parameters as a factor in determining whether it needs to 
remove the application from streamlined processing. If the testing 
parameters raise sufficient concerns such that the Commission removes 
the application from streamlined processing, the Commission will then 
consider those testing parameters in any totality of the circumstances 
analysis of the adequacy of the replacement network.
    127. The Order provides smaller carriers more flexibility in how 
they demonstrate network performance under this prong of the three-
prong test. We recognize that network testing under the parameters 
established in Appendix B could be more difficult for smaller carriers 
and relatively speaking burdensome, given the more limited number of 
customers. Thus, the Order concludes that carriers with 100,000 or 
fewer subscriber lines, aggregated across all affiliates, may remain 
eligible for automatic grant without compliance with the specific 
testing requirements of the network performance criterion we articulate 
today. We further note that this exemption from complying with the 
specific testing parameters announced herein does not apply to any 
rate-of-return carrier that is affiliated with a price cap carrier. The 
Order does not extend this exemption to any other components of the 
adequate replacement test we adopt today, including both of the other 
aspects of the network infrastructure prong (service quality and 
network coverage) or the other two prongs of the test.
    128. Service Availability. The Order concludes that a 99.99 percent 
service availability standard, calculated according to the formula and 
parameters established in the Order, is a reasonable approach to ensure 
that a replacement service presumptively provides substantially similar 
service as the service being discontinued. The Order adopts a test that 
consists of a standard formula traditionally used by industry to 
measure telephone service availability for which the Order defined the 
variables to ensure accuracy and that all discontinuing carriers are 
measuring the same information. The replacement service's availability 
will be calculated using data regarding customer trouble reports, the 
average repair interval in responding to those reports, the number of 
lines in the service area, and the duration of the observation period 
to reach a representative measurement of a ``four 9s'' benchmark used 
to measure service availability. The Order concludes these variables 
will provide the best measure of customers' ability to access their 
provider's network. And, as with the network performance testing, the 
Order requires a 30-day observation period to ensure network stability 
and allow for long-term projection of network reliability.
    129. Certain non-packet wireless access technologies providing 
fixed services can experience the failure of voice calls because of 
network congestion. To address this potential issue, we establish a 
metric that applies solely to these technologies for determining the 
frequency of congestion-based voice call failure, meaning the 
probability that a customer trying to make a call will be unable to do 
due to network congestion. We conclude that, to satisfy this benchmark 
and remain eligible for automatic grant, the probability must be less 
than one percent during the daily peak busy hour for at least 95 
percent of the 30 days in the measurement period, for this type of 
network to serve as an adequate replacement for a legacy voice service. 
Non-packet wireless access technologies used to provide fixed services 
are of particular concern here because, unlike service over copper 
loops which is dedicated to one subscriber, the radio access network is 
shared by multiple subscribers. The network could thus conceivably lack 
adequate capacity and result in an unacceptable level of failed calls 
due to congestion.
    130. Establishing a benchmark for service availability protects 
consumers, schools, libraries, healthcare facilities, utilities, and 
small- and medium-sized businesses, all of which depend on a service to 
be available when needed for everyday or emergency use. Past 
experiences, including what occurred

[[Page 62649]]

on Fire Island after Superstorm Sandy, demonstrate the importance of 
reliability as we undergo technology transitions. We now find that a 
service availability benchmark will help provide interested 
stakeholders with clear, objective ``criteria that will eliminate 
uncertainty that could potentially impede the industry from actuating a 
rapid and prompt transition to IP and wireless technology.''
    131. Network Coverage. The Order requires that to meet this prong 
and thus be eligible for streamlined processing, a replacement service 
must be available to all affected customers covering the entire 
geographic scope of the service area subject to the application and 
actually function as intended for affected customers, or else it cannot 
be certified as a replacement service for those customers. 
Specifically, in order to be eligible for automatic grant, the 
application must describe with sufficient particularity the geographic 
scope of the replacement service(s) available from the other 
provider(s) and must otherwise demonstrate that each of these services 
satisfies the criteria we adopt today. This requirement promotes the 
core values established by the Act, including that of ensuring 
universal access. Allowing a carrier to discontinue service when there 
are no other service options available would run contrary to that 
mission. Additionally, this requirement, as a part of our overarching 
determination of the public interest implications of a discontinuance 
application, sufficiently addresses any concerns regarding potential 
disparate impacts on minority communities. The Order declined to adopt 
a de minimis threshold for judging whether a replacement service offers 
the same coverage as to ensure that all customers in a service 
territory where the legacy voice service is offered continue to have 
the ability to obtain service.
    132. Prong Two: Critical Applications. Second, the public relies on 
assurances that critical applications related to public safety and 
protecting those most vulnerable remain accessible and operational 
through any transition. Therefore, to satisfy the second prong of the 
adequate replacement test and remain eligible for automatic grant, 
applicants must demonstrate that access to critical applications and 
functionalities as required under our rules remains available. Under 
this second prong, an applicant for discontinuance of service must 
certify that at least one replacement service complies with Commission 
regulations regarding availability and functionality of 911 service for 
consumers and public safety answering points (PSAPs), provides 
comparably effective network security, and complies with Commission 
regulations regarding compatibility with assistive technologies. 
Incorporating these certifications into our section 214 process 
benefits consumers, public safety entities, and industry participants 
alike by providing clear, consistent, and certain guidance regarding 
the importance of ensuring that critical applications will continue to 
function following a technology transition and are free from network 
vulnerabilities.
    133. The Order specifically concludes that, in order to satisfy the 
consumer access to 911 requirement and remain eligible for automatic 
grant, the replacement service must offer a dispatchable address 
capability. If the rules applicable to the replacement service require 
provision of an MSAG-validated address, the applicant may meet this 
requirement by certifying that its replacement service meets the 911 
registered location requirements applicable to that service in the 
Commission's rules. However, if the 911 requirements for the 
replacement service do not require provision of a validated address, 
the applicant must further certify that it will register a validated 
dispatchable address for each subscriber and provide the address to the 
appropriate PSAP for all 911 calls. If relying on a third party 
service, the applicant must show that the third party service provide 
meets this requirement to allow the applicant to remain eligible for 
streamlined processing. These requirements will ensure that PSAPs 
continue to receive accurate location information to dispatch emergency 
first responders directly to the correct location of the 911 call, 
thereby serving to minimize the response time critical for saving lives 
and safeguarding the public.
    134. The Commission declined to impose any new financial 
obligations on carriers under this prong. For example, while we 
acknowledge the perspective of consumer advocacy groups and state and 
local governments that argue that when the transition to a replacement 
service requires upgrade of assistive technologies, the applicant 
should not only inform affected users of the associated costs but help 
subsidize them, we emphasize that that this is not the appropriate 
forum in which to impose any new financial obligations upon providers.
    135. Prong Three: Interoperability. Third, we also emphasize in the 
Order that consumers should have access to the applications and 
functionalities they have come to associate as--and which currently 
remain--key components of the applicant service. Therefore, to satisfy 
the third prong of the adequate replacement test and retain eligibility 
for streamlined processing, the Order requires that an applicant must 
demonstrate that a replacement service offers compatibility with an 
enumerated set of applications and functionalities. The Order adopts 
AT&T's proposal that widely adopted low-speed modem devices such as fax 
machines, home security alarms, medical monitoring devices, analog-only 
caption telephone sets, and point-of-sale terminals should make up the 
initial list of key applications for which interoperability is 
required.
    136. The Order directs the Office of Engineering and Technology, 
working in consultation with the Wireline Competition Bureau and the 
Wireless Telecommunications Bureau (Bureaus) and subject to the 
guidelines below, to seek comment and, based on the record developed, 
propose additions to the list of key applications and functionalities 
adopted above for Commission review and approval. These guidelines are: 
(i) Whether customers rely on the application or functionality for 
health or safety reasons; (ii) whether the application or functionality 
is used as a wholesale input by other providers; (iii) whether the 
application or functionality relies on vendor equipment or inputs that 
have been discontinued; and (iv) whether the service provider, as 
opposed to the end-user customer, is the least-cost avoider. The Order 
concludes that it is appropriate to expect that replacement services 
offer compatibility with these devices until 2025. These guidelines 
reflect our goal of ensuring that the technology transitions broadly 
benefit consumers, including those who still value certain applications 
and functionalities associated with legacy voice services. Applying 
certain market-based considerations and adopting a sunset for this 
requirement is intended to address incumbent LECs' concerns about being 
placed at a potential competitive disadvantage by requiring them 
indefinitely to retain applications and functionalities that are no 
longer important to consumers.
    137. Again, whether by certification or appropriate showing, 
applicants meeting this adequate replacement test will still have the 
opportunity for automatic grant, allowing for speedy review where an 
applicant complies with all relevant standards. Our mission here is to 
ensure a customer experience with the replacement service that is 
substantially similar to the customer experience with the service being

[[Page 62650]]

discontinued, not to create new obligations.
    138. Other Issues. Customer Education & Outreach Plan. The Order 
requires that an applicant offer an adequate customer education and 
outreach plan in accessible and usable formats. An adequate customer 
outreach plan includes: (i) The development and dissemination of 
educational materials, provided to all customers affected, containing 
specific information pertinent to the transition; (ii) the creation of 
a telephone hotline and the option to create an additional interactive 
and accessible service to answer questions regarding the transition; 
and (iii) appropriate training of staff to field and answer consumer 
questions about the transition. The educational materials must include, 
at minimum: (i) A general description of the changes to the service, 
written in a non-technical manner that can be readily understood by the 
average consumer; (ii) the impact on existing applications and 
functionalities that are likely to be purchased by individual 
customers, including whether such applications and functionalities will 
be available following the transition; (iii) any change in the price of 
the service and impact on applications and functionalities which run on 
the service to be discontinued; and (iv) points of contact who will 
address technology transitions issues, as much as is practicable. If 
the applicant is relying on a third party service, we require the 
applicant to provide: (i) Contact information for that third party; and 
(ii) upon inquiry from a consumer, information regarding the 
interoperability and compatibility of applications and functionalities 
benefiting individuals with disabilities that run on the applicant's 
legacy voice service. Moreover, to ensure that customers understand the 
notice that they receive, any applicant who in the ordinary course of 
business regularly uses a language other than English in its 
communications with customers must provide the education materials to 
customers in both English and that regularly used language. We find 
that the establishment of clear guidance on education outreach 
materials will help promote the smoothest possible technology 
transition, consumer choice, and the fulfillment of consumer 
information needs. We also find that the plan's additional protections 
for vulnerable consumers, as well as the required hotline, further 
promote these values. Moreover, we do not find these requirements to be 
overly burdensome, as much of the information we are requiring is 
similar to the information required through copper retirement notices 
under the rules adopted in the Emerging Wireline Order. The Commission 
will consider a carrier's certification to these requirements as part 
of its overall analysis of whether granting the application would be in 
the public interest.
    139. Email Notice. The rules adopted in the Order allow carriers to 
provide email notice to customers of a planned discontinuance where 
those customers have previously agreed to receive notice from the 
carrier by that method. The Order allows carriers to provide notice by 
any other alternative method to which the customer has previously 
agreed. In both instances, the same provisos adopted in connection with 
the recently-adopted copper retirement rules shall apply (e.g., notice 
must be made in a clear and conspicuous manner; and may not contradict 
or be inconsistent with any other information with which it is 
presented). In addition, (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) an incumbent LEC must ensure that 
the subject line of the message clearly and accurately identifies the 
subject matter of the email; and (c) any email notice returned to the 
carrier as undeliverable will not constitute the provision of notice to 
the customer. As in the copper retirement context, this requirement 
should be sufficient to ensure that customers receive notice, without 
imposing unnecessary additional burdens on incumbent LECs. This outcome 
affords carriers greater flexibility in providing notice of 
discontinuances and establishes a measure of symmetry between the email 
notice requirements for discontinuances and the copper retirement 
rules.
    140. Notice to Tribal Governments. Further, the rules adopted in 
the Order require all carriers to provide notice of discontinuance 
applications to Tribal governments in the state in which the 
discontinuance is proposed, in addition to the notice already required 
to state PUCs, state governors, and the Department of Defense. This 
outcome aligns the notice requirements for section 214 discontinuance 
applications and copper retirement network changes, imposes the same 
requirement on all carriers serving Tribal lands, and places Tribal 
governments in all states in a position to prepare and address any 
concerns from consumers in their Tribal communities. The Order also 
rejected proposals to revise the discontinuance timing of notice rules 
in section 63.71.
    141. Timing of Notice. The Order rejects revising section 63.71 to 
require advance notice of a planned discontinuance or to lengthen the 
discontinuance process by changing the existing timeline for filing 
objections and/or allowing automatic grant. Based on the record, we 
conclude that there is no evidence of actual harm; however, we 
recognize that large-scale technology transition-related 
discontinuances have not yet occurred. Thus, while we do not revise 
section 63.71 in this Order, we emphasize that the Commission may 
revisit this issue if presented with evidence of such a need in the 
future.
    142. Order On Reconsideration. The Order on Reconsideration revises 
the Commission's rules to make a competitive LEC's application for 
discontinuance deemed granted on the effective date of any copper 
retirement that made the discontinuance unavoidable as long as the 
discontinuance application is filed at least 40 days prior to the 
retirement effective date and the competitive LEC certifies that the 
copper retirement was the basis for the discontinuance. This is 
intended to address a gap in the Commission's rules that left 
competitive LECs potentially without recourse to avoid violating the 
discontinuance rules. Under this new requirement, competitive LECs will 
have more than four months to consider the implications of the planned 
copper retirement and weigh their alternatives.
    143. Summary of Significant Issues Raised by Public Comments to the 
IRFA. There were no comments raised that specifically addressed the 
proposed rules and policies presented in the FNPRM IRFA (80 FR 57768-
01). Nonetheless, the Commission considered the potential impact of the 
rules proposed in the IRFA on small entities and reduced the compliance 
burden for all small entities in order to reduce the economic impact of 
the rules enacted herein on such entities.
    144. Response to Comments by the Chief Counsel for Advocacy of the 
Small Business Administration. Pursuant to the Small Business Jobs Act 
of 2010, which amended the RFA, the Commission is required to respond 
to any comments filed by the Chief Counsel of the Small Business 
Administration (SBA), and to provide a detailed statement of any change 
made to the proposed rule(s) as a result of those comments. The Chief 
Counsel did not file any comments in response to the proposed rule(s) 
in this proceeding.
    145. Description and Estimate of the Number of Small Entities to 
Which

[[Page 62651]]

Rules May Apply. 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 the proposed rules, if adopted. 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. Pursuant to the RFA, the statutory definition of a 
small business applies ``unless an agency, after consultation with the 
Office of Advocacy of the Small Business Administration and after 
opportunity for public comment, establishes one or more definitions of 
such term which are appropriate to the activities of the agency and 
publishes such definition(s) in the Federal Register.'' A small 
business concern is one that: (1) Is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) satisfies any 
additional criteria established by the Small Business Administration 
(SBA). 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.
    146. The majority of the rules and policies adopted in the Order 
will affect obligations on incumbent LECs and, in some cases, 
competitive LECs. Our actions, over time, may affect small entities 
that are not easily categorized at present. We therefore describe here, 
at the outset, the comprehensive small entity size standards that could 
be directly affected herein.
    147. Wireline Providers. 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.
    148. 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 rules adopted pursuant to the Order.
    149. 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.
    150. 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. The Small Business Act 
contains a definition of ``small business concern,'' which the RFA 
incorporates into its own definition of ``small business.'' 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.
    151. 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.
    152. 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 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.
    153. 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

[[Page 62652]]

Other Toll Carriers are small entities that may be affected by rules 
adopted pursuant to the Order.
    154. Wireless Providers. 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.
    155. 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.
    156. Cable Service Providers. 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.
    157. 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. The Commission 
determined that this size standard equates approximately to a size 
standard of $100 million or less in annual revenues. The Commission 
also applied this size standard to MVPD operators in its implementation 
of the CALM Act. Industry data shows that there are 660 cable operators 
in the country. Depending upon the number of homes and the size of the 
geographic area served, cable operators use one or more cable systems 
to provide video service. 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. The number of active, registered cable systems 
comes from the Commission's Cable Operations and Licensing System 
(COALS) database on Aug. 28, 2013. A cable system is a physical system 
integrated to a principal headend.
    158. 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.
    159. All Other Telecommunications. 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.
    160. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities. A number of our rule 
changes will result in additional reporting, recordkeeping, or 
compliance requirements for small entities. All of the rules we 
implement impose some compliance burdens on small entities by requiring 
them to become familiar with the new rules to comply with them. In 
certain cases, the burden of becoming familiar with the new rule in 
order to comply with it is the only additional burden the rule imposes. 
For all of the rule changes, we have determined that the benefit the 
rule change will bring for consumers, competition, and innovation 
outweighs the burden of the increased requirement/s. Other rule changes 
decrease reporting, recordkeeping, or compliance requirements for small 
entities. We have noted the applicable rule changes below impacting 
small entities.
    161. Adequate Replacement Test. Any carrier that wants the 
potential for automatic grant of a technology transition discontinuance 
application must comply with the new adequate replacement test 
explained above. Although this will increase reporting, recordkeeping, 
and compliance requirements for small businesses these certification 
and compliance requirements are minimally necessary to enable us to 
evaluate these types of discontinuance applications more briskly to the 
benefit of applicants, consumers, and public safety entities. We 
specifically balance these burdens against the need to ensure that 
next-generation services meet the needs of consumers. These standards 
will create certainty regarding technology transitions discontinuances, 
and will benefit consumers, public safety entities, and industry 
participants by clarifying the importance of ensuring

[[Page 62653]]

that network performance will be sufficient, that critical applications 
will continue to function, and that consumers will have access to the 
applications they associate as key components of the applicant service 
following a technology transition.
    162. Allowing transition applicants to either demonstrate 
compliance with objective criteria or make a demonstration that, 
despite not being able to meet the criteria, the totality of the 
circumstances demonstrates that an adequate replacement nonetheless 
exists, while remaining eligible for automatic grant gives applicants 
flexibility and decreases the burdens associated with strict compliance 
rules. Additionally, the Commission evaluating first and third party 
services equally and allowing applicants relying on a third party 
service to make a prima facie showing based on publicly available 
information as to whether the third party service meets our test as an 
adequate replacement gives applicants flexibility and decreases 
compliance burdens. The Order further promotes speedy transitions and 
decreases compliance burdens by allowing for a more streamlined 
approach for discontinuances involving services that are substantially 
similar to those for which section 214 discontinuance has previously 
been approved and streamlining the section 214 process in instances 
where consumers no longer subscribe to legacy voice service. These 
rules allow the applicant to bypass the performance testing 
requirements. Thus, the streamlined approach benefits applicants by 
reducing the reporting, recordkeeping and compliance burdens resulting 
from performance testing requirements, while protecting the interests 
of all stakeholders, industry and consumers. It also ensures a customer 
experience with the replacement service that is substantially similar 
to the customer experience with the service being discontinued, without 
creating new overly burdensome obligations.
    163. Moreover, as described above, established network performance 
testing parameters will avoid confusion over the merits of particular 
results and ensure that the Commission analyzes similar data sets from 
applicants in the technology transitions. Although network testing 
increases compliance burdens, the Order provides some flexibility in 
the testing parameters an applicant will use. If the testing parameters 
raise sufficient concerns such that the Commission removes the 
application from streamlined processing, the Commission will still 
consider those testing parameters in any totality of the circumstances 
analysis of the adequacy of the replacement network. We conclude these 
metrics are appropriate for replacement networks in order to provide 
substantially similar performance as a legacy TDM service.
    164. Another rule that will decrease recording, recordkeeping and 
compliance burdens on small businesses is the performance test 
exemption for small carriers. We recognize that in other contexts 
smaller carriers may require more tailored solutions and network 
testing under the parameters established in Appendix B could be more 
difficult for smaller carriers and relatively speaking burdensome, 
given the more limited number of customers. Therefore, the Order 
provides smaller carriers more flexibility in how they demonstrate 
network performance under this prong of the three-prong test. The Order 
concludes that carriers with 100,000 or fewer subscriber lines, 
aggregated across all affiliates, may remain eligible for automatic 
grant without compliance with the specific testing requirements of the 
network performance criterion we articulate today.
    165. The Order's established benchmarks for network performance, 
service availability, and network coverage protect consumers that 
depend on a network performing properly and service to be available 
when needed for everyday or emergency use. Similarly, consumer access 
to 911 and the dispatchable address requirement are critical to 
ensuring public safety. The Order also notes that transitioning from 
legacy-based services to new technologies presents new network 
vulnerability issues that did not exist with legacy technologies and 
comparing legacy voice services to new technologies is in part an 
apples-to-oranges comparison. Thus, in order to demonstrate that a 
replacement service is offering comparable security, the Order finds 
that a security benchmark that measures the unique risks associated 
with new technologies is necessary. The Order notes that satisfaction 
of this criterion is part of the adequate replacement test required for 
streamlined processing and is not mandatory to discontinue service 
generally. Moreover, the Order's interoperability guidelines reflect 
our goal of ensuring that technology transitions broadly benefit 
consumers of all types, including those who still value certain 
applications and functionalities associated with legacy voice services.
    166. Therefore, the benefits of the adequate replacement test 
outweigh any additional reporting, recordkeeping, or compliance 
obligations upon small businesses.
    167. Application Requirements. Applicants filing technology 
transition discontinuance applications and seeking streamlined 
treatment are also required to provide pricing information about the 
applicant service subject to discontinuance and the proposed 
replacement service. Although they are required to provide this 
information, it allows the Commission to evaluate the application in a 
streamlined manner without further information collections. This also 
ensures that consumer interests are protected throughout technology 
transitions.
    168. Consumer Education & Outreach Plan. While the Order's 
establishment of consumer education and outreach materials requires a 
modest increase in a carrier's compliance burden, an overwhelming 
majority of commenters support its inclusion as it will help promote 
the smoothest possible technology transition, consumer choice, and the 
fulfillment of consumer information needs. The outreach plan's 
additional protections for vulnerable consumers, as well as the 
required hotline, further promotes these values. The Commission does 
not find these requirements to be overly burdensome as much of the 
information we are requiring is similar to the information required 
through copper retirement notices under the rules adopted in the 
Emerging Wireline Order. It also enables providers to respond to any 
customers who need assistance during the technology transitions 
process. The Commission will consider a carrier's certification to 
these requirements as part of its overall analysis of whether granting 
the application would be in the public interest to minimize the burdens 
of strict compliance.
    169. Email Notice and Notice to Tribal Governments. Allowing 
providers to send email and alternative forms of notifications 
previously accepted by consumers decreases the burden of the 
discontinuance notification requirement for small businesses. Thus, 
making the discontinuance process more manageable for small businesses. 
Requiring carriers to provide notice of discontinuance applications to 
Tribal governments in the state in which the discontinuance is proposed 
may increase the burden on small entities, but it aligns the notice 
requirements for section 214 discontinuance applications and copper 
retirement network changes, imposes the same requirement on all 
carriers serving Tribal lands, and places Tribal governments in all 
states in a position to prepare and address any

[[Page 62654]]

concerns from consumers in their Tribal communities.
    170. Order On Reconsideration. The Order on Reconsideration's 
revisions to the Commission's rules address a gap in the former rules 
that clarifies and harmonizes the copper retirement and discontinuance 
processes. Allowing a competitive LEC's application for discontinuance 
to be deemed granted on the effective date of any copper retirement 
that made the discontinuance unavoidable (if they meet certain 
requirements described above) reduces the compliance burdens on 
competitive LECs. Additionally, permitting competitive LECs to have 
more than four months to consider the implications of the planned 
copper retirement and weigh their alternative further reduces their 
compliance burdens.
    171. Steps Taken to Minimize the Significant Economic Impact on 
Small Entities, and Significant Alternatives Considered. The RFA 
requires an agency to describe any significant, specifically small 
business, alternatives that it has considered in reaching its proposed 
approach, which may include the following four alternatives (among 
others): ``(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 rule 
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.''
    172. The Commission is aware that this rulemaking could 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. As described above, for example, we considered 
alternatives to the rulemaking changes that could have increased the 
burden of compliance for small businesses. We conclude that the new and 
updated requirements are minimally necessary to ensure we meet our 
statutory responsibilities with respect to technology transitions while 
preserving the core values of consumer protection, competition, 
universal service, and public safety. We believe that it is unlikely 
that small business will be impacted significantly by the final rules 
so as to outweigh the benefits of the rules.
    173. In fact, we anticipate that in many instances, small 
businesses will find their burden decreased by the new rules. For 
example, permitting email-based notice of planned technology 
transitions discontinuances to customers or notice by any other 
alternative method to which the customer has previously agreed affords 
carriers greater flexibility in providing notice and establishes a 
measure of symmetry between the email notice requirements for 
discontinuances and the copper retirement rules. The requirement is 
sufficient to provide customers notice of discontinuance without 
imposing additional burdens on carriers. Requiring carriers to provide 
notice of discontinuance applications to Tribal governments in the 
state in which the discontinuance is proposed aligns the notice 
requirements for section 214 discontinuance applications and copper 
retirement network changes, imposes the same requirement on all 
carriers serving Tribal lands, and places Tribal governments in all 
states in a position to prepare and address any concerns from consumers 
in their Tribal communities.
    174. Specifically, allowing technology transition applicants to 
either demonstrate compliance with objective criteria or make a 
demonstration that, despite not being able to meet the criteria, the 
totality of the circumstances demonstrates that an adequate replacement 
nonetheless exists, while remaining eligible for automatic grant, gives 
applicants flexibility and decreases the economic burdens on small 
businesses associated with strict compliance rules. Additionally, the 
criteria established in the three-prong test provides clarity that 
should enable us to evaluate these types of discontinuance applications 
more briskly, to the benefit of applicants and consumers, including 
small businesses. Incorporating these certifications into our section 
214 process benefits consumers, public safety entities, and industry 
participants alike by providing clear, consistent, and certain guidance 
regarding the importance of ensuring that network performance will be 
sufficient, critical applications will continue to function, and that 
consumers will have access to the applications they associate as key 
components of the applicant service following a technology transition.
    175. Similarly, the Commission evaluating first and third party 
services equally and allowing applicants relying on a third party 
service to make a prima facie showing based on publicly available 
information as to whether the third party service meets our test as an 
adequate replacement gives small business applicants flexibility and 
decreases the economic burdens associated with strict compliance rules. 
Furthermore, requiring that a single service (whether first- or third-
party) satisfy all three prongs of the adequate replacement test in 
order to be eligible for automatic grant ensures consumers receive the 
integrated service experience they need and deserve and also reduces 
the potential the economic impact of consumers having to find and 
employ multiple service providers to satisfy their needs.
    176. The Order recognizes the importance of promoting speedy 
transitions by allowing for a more streamlined approach for 
discontinuances involving services that are substantially similar to 
those for which section 214 discontinuance has previously been approved 
and streamlining the section 214 process in instances where consumers 
no longer subscribe to legacy voice service. The practical effect of 
these rules is to allow the applicant to bypass the performance testing 
requirements. The streamlined approach benefits applicants by reducing 
the economic burdens resulting from performance testing requirements, 
while protecting the interests of all stakeholders, industry and 
consumers. As discussed above, this also ensures a customer experience 
with the replacement service that is substantially similar to the 
customer experience with the service being discontinued, without 
creating new overly burdensome obligations.
    177. Furthermore, the established benchmarks for network 
performance, service availability, and network coverage protect small 
businesses that depend on a network performing properly and service to 
be available when needed for everyday or emergency use. Another rule 
that will decrease the economic burden on small businesses is the 
performance test exemption for small businesses or carriers. Network 
testing under the parameters established in Appendix B could be more 
difficult for smaller carriers and relatively speaking economically 
burdensome, given the more limited number of customers. Therefore, the 
Order provides smaller carriers more flexibility in how they 
demonstrate network performance under this prong of the three-prong 
test. The Order's interoperability guidelines also reflect our goal of 
ensuring that the technology transitions broadly benefit consumers of 
all types, including those who still value certain applications and 
functionalities associated with legacy voice services.

[[Page 62655]]

    178. The Order's communications security criterion will ensure that 
consumers receive comparably effective protection from network security 
risks as they do with legacy networks. Limiting this criterion to the 
context of streamlined processing and noting that compliance will be 
examined flexibly will reduce the impact on small businesses.
    179. The Order's establishment of clear guidance on education 
outreach materials will help promote the smoothest possible technology 
transition, consumer choice, and the fulfillment of consumer 
information needs which effectively protects small businesses that 
depend on an applicant's services by minimizing any negative economic 
impact due to lack of understanding about a technology transition. The 
outreach plan's additional protections for vulnerable consumers, as 
well as the required hotline, further promotes these values.
    180. By declining to provide any rural LEC exemption, the Order 
also protects small businesses that depend on a network performing 
properly and service to be available when needed for everyday or 
emergency use. The Order concludes that rural consumers or small 
businesses, with often limited choice in service providers, should 
equally benefit from full consideration of the adequacy of any 
replacement service to ensure continued network performance and service 
quality, as well as access to critical applications, and 
interoperability with valued services.
    181. The Order on Reconsideration's revisions to the Commission's 
rules to make a competitive LEC's application for discontinuance deemed 
granted on the effective date of any copper retirement that made the 
discontinuance unavoidable as long as the discontinuance application is 
filed at least 40 days prior to the retirement effective date and the 
competitive LEC certification that the copper retirement was the basis 
for the discontinuance are intended to address a gap in the 
Commission's rules that left competitive LECs potentially without 
recourse to avoid violating the discontinuance rules. Permitting 
competitive LECs to have more than four months to consider the 
implications of the planned copper retirement and weigh their 
alternative reduces burdens the former rules did not properly address. 
These revisions reduce the economic impact on competitive LECs and 
therefore burdens on consumers by clarifying and harmonizing the copper 
retirement and discontinuance processes.
    182. Federal Rules that Might Duplicate, Overlap, or Conflict with 
the Rules. None.
    183. Report to Congress. The Commission will send a copy of this 
Second Report and Order and Order on Reconsideration, including the 
FRFA, in a report to be sent to Congress pursuant to the SBREFA. In 
addition, the Commission will send a copy of this Second Report and 
Order, Order on Reconsideration, and Declaratory Ruling, including this 
FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the 
Second Report and Order, Order on Reconsideration, and Declaratory 
Ruling, and the FRFA (or summaries thereof) will also be published in 
the Federal Register.
    184. Ordering Clauses. 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 through 154, 201, 214, 251, 303(r), 
this Second Report and Order and Order on Reconsideration ARE ADOPTED.
    185. 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.
    186. IT IS FURTHER ORDERED that this Second Report and Order and 
Order on Reconsideration SHALL BE effective October 12, 2016, except 
for 47 CFR 51.329(c), 63.19(a), 63.60, 63.71, 63.602, and the outreach 
plan and consumer education requirements set forth in this Second 
Report and Order, 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.
    187. IT IS FURTHER ORDERED that the Petition for Reconsideration 
filed by TelePacific IS GRANTED IN PART AND DENIED IN PART.
    188. IT IS FURTHER ORDERED that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a 
copy of this Second 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).
    189. IT IS FURTHER ORDERED that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a 
copy of this Second Report and Order and Order on Reconsideration, 
including the Final Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

List of Subjects

47 CFR Part 51

    Communications common carriers, Telecommunications.

47 CFR Part 63

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

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

    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: 47 U.S.C. 151-55, 201-05, 207-09, 218, 220, 225-27, 
251-54, 256, 271, 303(r), 332, 1302.


0
2. Section 51.329 is amended by revising paragraph (c)(1) to read as 
follows:


Sec.  51.329  Notice of network changes: Methods for providing notice.

* * * * *
    (c) * * *
    (1) The public notice or certification must be labeled with one of 
the following titles, as appropriate: ``Public Notice of Network Change 
Under Rule 51.329(a),'' ``Certification of Public Notice of Network 
Change Under Rule 51.329(a),'' ``Short Term Public Notice Under Rule 
51.333(a),'' ``Certification of Short Term Public Notice Under Rule 
51.333(a),'' ``Public Notice of Copper Retirement Under Rule 51.332,'' 
or ``Certification of Public Notice of Copper Retirement Under Rule 
51.332.''
* * * * *

[[Page 62656]]

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
3. Section 63.19 is amended by revising paragraph (a) introductory text 
to read as follows:


Sec.  63.19  Special procedures for discontinuances of international 
services.

    (a) With the exception of those international carriers described in 
paragraphs (b) and (c) of this section, any international carrier that 
seeks to discontinue, reduce, or impair service, including the retiring 
of international facilities, dismantling or removing of international 
trunk lines, shall be subject to the following procedures in lieu of 
those specified in Sec. Sec.  63.61 through 63.602:
* * * * *

0
4. Section 63.60 is amended by adding paragraph (h) to read as follows:


Sec.  63.60  Definitions.

* * * * *
    (h) The term ``technology transition'' means any change in service 
that would result in the replacement of a wireline TDM-based voice 
service with a service using a different technology or medium for 
transmission to the end user, whether Internet Protocol (IP), wireless, 
or another type; except that retirement of copper, as defined in Sec.  
51.332(a) of this chapter, that does not result in a discontinuance, 
reduction, or impairment of service requiring Commission authorization 
pursuant to this part shall not constitute a ``technology transition'' 
for purposes of this part.

0
5. Section 63.71 is amended by revising paragraph (a) introductory 
text, adding paragraphs (a)(6) and (7), redesignating paragraph (f) as 
(j), redesignating paragraphs (b) through (e) as (c) through (f), 
adding new paragraph (b), adding a sentence to the end of newly 
redesignated paragraph (f), and adding paragraphs (g), (h), and (i).
    The revisions and additions read as follows:


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

* * * * *
    (a) The carrier shall notify all affected customers of the planned 
discontinuance, reduction, or impairment of service and shall notify 
and submit a copy of its application to the public utility commission 
and to the Governor of the State in which the discontinuance, 
reduction, or impairment of service is proposed; to any federally-
recognized Tribal Nations with authority over the Tribal lands in which 
the discontinuance, reduction, or impairment of service is proposed; 
and also to the Secretary of Defense, Attn. Special Assistant for 
Telecommunications, Pentagon, Washington, DC 20301. Notice shall be in 
writing to each affected customer unless the Commission authorizes in 
advance, for good cause shown, another form of notice. For purposes of 
this section, notice by email constitutes notice in writing. Notice 
shall include the following:
* * * * *
    (6) For applications to discontinue, reduce, or impair an existing 
retail service as part of a technology transition, as defined in Sec.  
63.60(h) of this part, in order to be eligible for automatic grant 
under paragraph (f) of this section:
    (i) A statement that any service offered in place of the service 
being discontinued, reduced, or impaired may not provide line power; 
and
    (ii) The information required by Sec.  12.5(d)(1) of this chapter.
    (7) For applications to discontinue, reduce, or impair an existing 
retail service as part of a technology transition, as defined in Sec.  
63.60(h) of this part, in order to be eligible for automatic grant 
under paragraph (f) of this section:
    (i) A description of any security responsibilities the customer 
will have regarding the replacement service; and
    (ii) A list of the steps the customer may take to ensure safe use 
of the replacement service.
    (b) If a carrier uses email to provide notice to affected 
customers, it must comply with the following requirements in addition 
to the requirements generally applicable to the notice:
    (1) The carrier must have previously obtained express, verifiable, 
prior approval from retail customers to send notices via email 
regarding their service in general, or planned discontinuance, 
reduction, or impairment in particular;
    (2) A carrier must ensure that the subject line of the message 
clearly and accurately identifies the subject matter of the email; and
    (3) Any email notice returned to the carrier as undeliverable will 
not constitute the provision of notice to the customer.
* * * * *
    (f) * * * An application to discontinue, reduce, or impair an 
existing retail service as part of a technology transition, as defined 
in Sec.  63.60(h) of this part, may be automatically granted only if 
the applicant provides affected customers with the notice required 
under paragraphs (a)(6) and (7) of this section, and the application 
contains the showing or certification described in Sec.  63.602(b) of 
this part.
    (g) An application to discontinue, reduce, or impair a service for 
which the requesting carrier has had no customers or reasonable 
requests for service during the 180-day period immediately preceding 
submission of the application shall be automatically granted on the 
31st day after its filing with the Commission without any Commission 
notification to the applicant, unless the Commission has notified the 
applicant that the grant will not be automatically effective.
    (h) An application to discontinue, reduce, or impair an existing 
retail service as part of a technology transition, as defined in Sec.  
63.60(h) of this part, shall contain the information required by Sec.  
63.602 of this part. The certification or showing described in Sec.  
63.602(b) of this part is only required if the applicant seeks 
eligibility for automatic grant under paragraph (f) of this section.
    (i) An application to discontinue, reduce, or impair a service 
filed by a competitive local exchange carrier in response to a copper 
retirement notice filed pursuant to Sec.  51.332 of this chapter shall 
be automatically granted on the effective date of the copper 
retirement; provided that:
    (1) The competitive local exchange carrier submits the application 
to the Commission for filing at least 40 days prior to the copper 
retirement effective date; and
    (2) The application includes a certification, executed by an 
officer or other authorized representative of the applicant and meeting 
the requirements of Sec.  1.16 of this chapter, that the copper 
retirement is the basis for the application.
* * * * *

0
6. Section 63.602 is added to read as follows:


Sec.  63.602  Additional contents of applications to discontinue, 
reduce, or impair an existing retail service as part of a technology 
transition.

    (a) The application shall include:
    (1) The contents specified in Sec.  63.505 of this part;
    (2) A statement identifying the application as involving a 
technology transition, as defined in Sec.  63.60(h) of this part;

[[Page 62657]]

    (3) Information regarding the price of the service for which 
discontinuance authority is sought and the price of the proposed 
replacement service; and
    (4) A certification, executed by an officer or other authorized 
representative of the applicant and meeting the requirements of Sec.  
1.16 of this chapter, that the information required by this section is 
true and accurate.
    (b) In order to be eligible for automatic grant under Sec.  
63.71(f) of this part, an applicant must demonstrate that a service(s) 
identified pursuant to Sec.  63.505(k)(2) of this part is an adequate 
replacement for the voice service identified pursuant to Sec.  
63.505(k)(1) of this part by either certifying or showing, based on the 
totality of the circumstances, that one or more replacement service(s) 
satisfies all of the following criteria:
    (1) Offers substantially similar levels of network infrastructure 
and service quality as the service being discontinued;

    Note to paragraph (b)(1): For purposes of this section, 
``substantially similar'' means that the network operates at a 
sufficient level such that it will allow the network platform to 
ensure adequate service quality for interactive and highly-
interactive applications or services, in particular voice service 
quality, and support applications and functionalities that run on 
those services.

    (2)(i) Complies with regulations regarding the availability and 
functionality of 911 service for consumers and public safety answering 
points (PSAPs), specifically Sec. Sec.  1.7001 through .7002, 9.5, 
12.4, 12.5, 20.18, 20.3, 64.3001 of this chapter;
    (ii) Offers comparably effective protection from network security 
risks as the service being discontinued; and
    (iii) Complies with regulations governing accessibility, usability, 
and compatibility requirements for:
    (A) Telecommunications services and functionalities;
    (B) Voicemail and interactive menu functionalities; and
    (C) Advanced communications services, specifically 47 CFR 6.1 
through 6.11, 7.1 through 7.11, 14.1 through 14.21, 14.60 through 
14.61; and
    (3) Offers interoperability with key applications and 
functionalities.

[FR Doc. 2016-20215 Filed 9-9-16; 8:45 am]
BILLING CODE 6712-01-P