Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 22453-22476 [2017-09689]
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[FR Doc. 2017–09998 Filed 5–12–17; 4:15 pm]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 1, 51, and 63
[WC Docket No. 17–84; FCC 17–37]
Accelerating Wireline Broadband
Deployment by Removing Barriers to
Infrastructure Investment
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, a Notice of
Proposed Rulemaking (NPRM) seeks
comment on a number of actions
designed to remove regulatory barriers
to infrastructure investment at the
federal, state, and local level, speed the
transition from copper networks and
legacy services to next-generation
networks and services, and reform
Commission regulations that increase
costs and slow broadband deployment.
The NPRM seeks comment on pole
attachment reforms, changes to the
copper retirement and other network
change notification processes, and
changes to the section 214(a)
discontinuance application process. The
Commission adopted the NPRM in
conjunction with a Notice of Inquiry
and Request for Comment in WC Docket
No. 17–84.
DATES: Comments are due on or before
June 15, 2017, and reply comments are
due on or before July 17, 2017. Written
comments on the Paperwork Reduction
Act proposed information collection
requirements must be submitted by the
public, Office of Management and
Budget (OMB), and other interested
parties on or before July 17, 2017.
ADDRESSES: You may submit comments,
identified by WC Docket No. 17–84, by
any of the following methods:
D Federal Communications
Commission’s Web site: https://
SUMMARY:
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apps.fcc.gov/ecfs/. Follow the
instructions for submitting comments.
D Mail: Parties who choose to file by
paper must file an original and one copy
of each filing. If more than one docket
or rulemaking number appears in the
caption of this proceeding, filers must
submit two additional copies for each
additional docket or rulemaking
number. Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission. All hand-delivered or
messenger-delivered paper filings for
the Commission’s Secretary must be
delivered to FCC Headquarters at 445
12th St. SW., Room TW–A325,
Washington, DC 20554. The filing hours
are 8:00 a.m. to 7:00 p.m. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes and boxes must be disposed
of before entering the building.
Commercial overnight mail (other than
U.S. Postal Service Express Mail and
Priority Mail) must be sent to 9300 East
Hampton Drive, Capitol Heights, MD
20743. U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 445 12th Street SW.,
Washington DC 20554.
D People with Disabilities: To request
materials in accessible formats for
people with disabilities (braille, large
print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the Consumer & Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (tty).
For detailed instructions for
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document. In addition to
filing comments with the Secretary, a
copy of any comments on the
Paperwork Reduction Act information
collection requirements contained
herein should be submitted to the
Federal Communications Commission
via email to PRA@fcc.gov and to Nicole
Ongele, Federal Communications
Commission, via email to
Nicole.Ongele@fcc.gov.
FOR FURTHER INFORMATION CONTACT:
Wireline Competition Bureau,
Competition Policy Division, Michele
Berlove, at (202) 418–1477,
michele.berlove@fcc.gov, or Michael
Ray, at (202) 418–0357, michael.ray@
fcc.gov. For additional information
concerning the Paperwork Reduction
Act information collection requirements
contained in this document, send an
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email to PRA@fcc.gov or contact Nicole
Ongele at (202) 418–2991.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking (NPRM) in WC
Docket No. 17–84, adopted April 20,
2017 and released April 21, 2017. 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://
transition.fcc.gov/Daily_Releases/Daily_
Business/2017/db0421/FCC-1737A1.pdf.
Pursuant to sections 1.415 and 1.419
of the Commission’s rules, 47 CFR
1.415, 1.419, interested parties may file
comments and reply comments on or
before the dates indicated on the first
page of this document. Comments may
be filed using the Commission’s
Electronic Comment Filing System
(ECFS). See Electronic Filing of
Documents in Rulemaking Proceedings,
63 FR 24121 (1998), https://www.fcc.gov/
Bureaus/OGC/Orders/1998/
fcc98056.pdf.
• Electronic Filers: Comments may be
filed electronically using the Internet by
accessing the ECFS: https://
www.fcc.gov/ecfs/.
• Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing. If more than one
docket or rulemaking number appears in
the caption of this proceeding, filers
must submit two additional copies for
each additional docket or rulemaking
number. Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission. All hand-delivered or
messenger-delivered paper filings for
the Commission’s Secretary must be
delivered to FCC Headquarters at 445
12th St. SW., Room TW–A325,
Washington, DC 20554. The filing hours
are 8:00 a.m. to 7:00 p.m. All hand
deliveries must be held together with
rubber bands or fasteners. Any
envelopes and boxes must be disposed
of before entering the building.
Commercial overnight mail (other than
U.S. Postal Service Express Mail and
Priority Mail) must be sent to 9300 East
Hampton Drive, Capitol Heights, MD
20743. U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 445 12th Street SW.,
Washington DC 20554.
• People with Disabilities: To request
materials in accessible formats for
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people with disabilities (braille, large
print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the Consumer & Governmental Affairs
Bureau at 202–418–0530 (voice), 202–
418–0432 (tty).
Synopsis
I. Introduction
1. High-speed broadband is an
increasingly important gateway to jobs,
health care, education, information, and
economic development. Access to highspeed broadband can create economic
opportunity, enabling entrepreneurs to
create businesses, immediately reach
customers throughout the world, and
revolutionize entire industries. Today,
we propose and seek comment on a
number of actions designed to accelerate
the deployment of next-generation
networks and services by removing
barriers to infrastructure investment.
2. This NPRM seeks to better enable
broadband providers to build, maintain,
and upgrade their networks, which will
lead to more affordable and available
Internet access and other broadband
services for consumers and businesses
alike. Today’s actions propose to
remove regulatory barriers to
infrastructure investment at the federal,
state, and local level; suggest changes to
speed the transition from copper
networks and legacy services to nextgeneration networks and services; and
propose to reform Commission
regulations that increase costs and slow
broadband deployment.
II. Pole Attachment Reforms
3. Pole attachments are a key input for
many broadband deployment projects.
Reforms which reduce pole attachment
costs and speed access to utility poles
would remove significant barriers to
broadband infrastructure deployment
and in turn increase broadband
availability and competition in the
provision of high-speed services.
4. The Communications Act of 1934,
as amended (Act), grants the
Commission authority to regulate
attachments to utility-owned and
-controlled poles, ducts, conduits, and
rights-of-way (collectively, poles).
Among other things, the Act authorizes
the Commission to prescribe rules
ensuring ‘‘just and reasonable’’ ‘‘rates,
terms, and conditions’’ for pole
attachments and ‘‘nondiscriminatory
access’’ to poles, rules defining pole
attachment rates for attachers that are
cable television systems and
telecommunications carriers, rules
regarding the apportionment of makeready costs between utilities and
attachers, and rules requiring all local
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exchange carriers (LECs) to ‘‘afford
access to the poles, ducts, conduits, and
rights-of-way of such carrier to
competing providers of
telecommunications service . . . .’’
Section 224(a)(4) of the Act defines a
pole attachment as any attachment by a
cable television system or provider of
telecommunications service to a pole,
duct, conduit, or right-of-way owned or
controlled by a utility. Accordingly,
unless specified otherwise, we use the
term ‘‘pole attachment’’ in this NPRM to
refer to attachments not only to poles,
but to ducts, conduits, and rights-of-way
as well. ‘‘Make-ready’’ generally refers
to the modification of poles or lines or
the installation of certain equipment
(e.g., guys and anchors) to accommodate
additional facilities. The Act also allows
states to reverse-preempt the
Commission’s regulations so long as
they meet certain federal standards. To
date, twenty states and the District of
Columbia have reverse-preempted
Commission jurisdiction over the rates,
terms, and conditions of pole
attachments in their states.
5. We seek to exercise this authority
to accelerate the deployment of nextgeneration infrastructure so that
consumers in all regions of the Nation
can enjoy the benefits of high-speed
Internet access as well as additional
competition.
A. Speeding Access to Poles
6. We seek comment on proposals to
streamline and accelerate the
Commission-established timeline for
processing pole attachment requests,
which currently envisions up to a fivemonth process (assuming all
contemplated deadlines are met).
Several proposals to speed pole access
allow telecommunications and cable
providers seeking to add equipment to
a utility pole (a ‘‘new attacher’’) to
adjust, on an expedited basis, the
preexisting equipment of the utility and
other providers already on that pole
(‘‘existing attachers’’). We emphasize at
the outset that we are seeking to develop
an approach that balances the legitimate
needs and interests of new attachers,
existing attachers, utilities, and the
public. In particular, we recognize that
speeding access to poles could raise
meaningful concerns about safety and
protection of existing infrastructure. We
intend to work toward an approach that
facilitates new attachments without
creating undue risk of harm. We intend
for the proposals below to be a starting
point that will stimulate refinements as
we work toward potential adoption of a
final pole attachment process.
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1. Speeding the Current Commission
Pole Attachment Timeline
7. We seek comment on potential
reforms to the various steps of the
Commission’s current pole attachment
timeline to facilitate timely access to
poles. Access to poles, including the
preparation of poles for new
attachments, must be timely in order to
constitute just and reasonable access
under section 224 of the Act. The
Commission’s current four-stage
timeline for wireline and wireless
requests to access the ‘‘communications
space’’ on utility poles, adopted in 2011,
provides for periods that do not exceed:
application review and engineering
survey (45 days), cost estimate (14
days), attacher acceptance (14 days),
and make-ready (60–75 days). It also
allows timeline modifications for
wireless attachments above the
communications space and for large
requests.
8. Application Review. We seek
comment on whether we should require
a utility to review and make a decision
on a completed pole attachment
application within a timeframe shorter
than the current 45 days. Is 15 days a
reasonable timeframe for utilities to act
on a completed pole attachment
application? Is 30 days? We seek
comment on, and examples of, current
timelines for the consideration of pole
attachment applications, especially in
states that regulate their own rates,
terms, and conditions for pole access. If
we adopt a shorter timeline, we also
seek comment on situations in which it
might be reasonable for the utility’s
review of a pole attachment application
to extend beyond the new shortened
timeline.
9. In addition, we seek comment on
retaining the existing Commission rule
allowing utilities 15 extra days to
consider pole attachment applications
in the case of large orders (i.e., up to the
lesser of 3,000 poles or five percent of
the utility’s poles in a state). We also
seek comment on capping, at a total of
45 days, utility review of those pole
attachment applications that are larger
than the lesser of 3,000 poles or five
percent of a utility’s poles in a state. We
seek comment on possible alternatives
by which we may take into account
large pole attachment orders. We seek
comment regarding the expected
volume of pole attachment requests
associated with the 5G rollouts of
wireless carriers and whether the
extended timelines for larger pole
attachment orders might help utilities
process the large volume of requests we
anticipate will be associated with the 5G
buildouts.
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10. Survey, Cost Estimate, and
Acceptance. We seek comment on
whether the review period for pole
attachment applications should still
include time for the utility to survey the
poles for which access has been
requested. With regard to the estimate
and acceptance steps of the current pole
access timeline, should we require a
timeframe for these steps that is shorter
than the current 28 days? Would it be
reasonable to combine these steps into
a condensed 14-day (or 10-day) period?
Could we wrap these two steps into the
make-ready timeframe? Would it be
reasonable to eliminate these two steps
entirely? If so, without the estimate and
acceptance steps, then what alternatives
should there be for requiring utilities
and new attachers to come to an
agreement on make-ready costs?
11. Make-Ready. We also seek
comment on approaches to shorten the
make-ready work timeframe. The
Commission currently requires that
utilities give existing attachers a period
not to exceed 60 days after the makeready notice is sent to complete work on
their equipment in the communications
space of a pole. In adopting a 60-day
maximum period for existing attachers
to complete make-ready work, the 2011
Pole Attachment Order recommended as
a ‘‘best practice’’ a make-ready period of
30 days or less for small pole
attachment requests and 45 days for
medium-size requests. Should the
Commission adopt as requirements the
‘‘best practices’’ timeframes set forth in
the 2011 Pole Attachment Order? What
other timeframes would be reasonable,
recognizing the safety concerns and
property interests of existing attachers
and utilities when conducting makeready work on a pole? We seek
comment on any state experience with
this phase of the make-ready process—
how long is it taking existing attachers
to perform make-ready work in states
that are not subject to Commission pole
attachment jurisdiction? Do existing
attachers require the full make-ready
periods to move their attachments such
that the total timeline for a new attacher
exceeds the Commission’s existing pole
attachment timeline? Are there
situations in which it is reasonable for
existing attachers to go beyond the
current Commission timeframes to
complete make-ready work? Further, are
there ways that the Commission can
eliminate or significantly reduce the
need for make-ready work? For
example, what can the Commission do
to encourage utilities to proactively
make room for future attachers by
consolidating existing attachments,
reserving space on new poles for new
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attachers, and allowing the use of
extension arms to increase pole
capacity?
12. In addition, the Commission has
adopted longer maximum periods for
existing attachers and utilities to
complete make-ready work in the case
of large pole attachment orders (an
additional 45 days) and in the case of
wireless attachments above the
communications space (a total of up to
90 days for such attachments or up to
135 days in the case of large wireless
attachment orders). We seek comment
on whether it is reasonable to retain
these extended time periods for large
pole attachment orders and for wireless
attachments above the communications
space. We seek comment on reasonable
alternatives to these timelines, bearing
in mind the safety concerns inherent in
make-ready work above the
communications space on a pole and
the manpower concerns of existing
attachers and utilities when having to
perform make-ready on large numbers of
poles in a condensed time period.
2. Alternative Pole Attachment
Processes
13. We seek comment generally on
possible alternatives to the
Commission’s current pole attachment
process that might speed access to
poles. We also seek comment on
potential remedies, penalties, and other
ways to incent utilities, existing
attachers, and new attachers to work
together to speed the pole attachment
timeline. If the Commission were to
adopt any of the revisions proposed
below or other revisions to our process,
would section 224 of the Act support
such an approach? What other statutory
authority could the Commission rely on
in adopting such changes? In
considering the proposals below for
alternatives to the pole attachment
timeline, we seek comment on the need
to balance the benefits of these
alternatives against the safety and
property concerns that are paramount to
the pole attachment process. For
example, we seek comment on the
extent to which any of the proposals
may violate the Fifth Amendment
protections of utilities and existing
attachers against the taking of their
property without just compensation.
14. Use of Utility-Approved
Contractors to Perform Make-Ready
Work. We seek comment on whether the
Commission should adopt rules that
would allow new attachers to use
utility-approved contractors to perform
‘‘routine’’ make-ready work and also to
perform ‘‘complex’’ make-ready work
(i.e., make-ready work that reasonably
would be expected to cause a customer
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outage) in situations where an existing
attacher fails to do so. Under the
Commission’s current pole attachment
timeline, utilities may allow existing
attachers up to 60 days to complete
make-ready work on their equipment in
the communications space and utilities
have the right to ask for an additional
15 days to complete the work when the
existing attacher fails to do so. Only
after that period of up to 75 days has
run, and neither the existing attachers
nor the utilities have met their
deadlines, can new attachers begin to
perform make-ready work using utilityapproved contractors. The timelines are
even longer in cases of larger pole
attachment requests and for wireless
make-ready work above the
communications space on a pole. We
seek comment on whether it would be
reasonable to expand the use of utilityapproved contractors to perform makeready work, especially earlier in the
pole attachment process. Would it be
reasonable to eliminate the utility’s right
to complete make-ready work in favor of
a new attacher performing the makeready work after an existing attacher
fails to meet its make-ready deadline?
15. We seek comment on balancing
the benefits of allowing new attachers to
use utility-approved contractors to
perform make-ready work against any
drawbacks of allowing contractors that
may not be approved by existing
attachers to move existing equipment on
a pole. We urge commenters, whenever
possible, to provide quantifiable data or
evidence supporting their position. We
note that AT&T, in its federal court
challenge of Louisville, Kentucky’s pole
attachment ordinance, argued that
utility-approved contractors ‘‘have on
occasion moved AT&T’s network
facilities, with less-than-satisfactory
results,’’ while Comcast argued in its
federal court challenge to Nashville,
Tennessee’s pole attachment ordinance
that third-party contractors ‘‘are
significantly more likely to damage
Comcast’s equipment or interfere with
its services.’’ We seek comment on other
safety and property concerns that the
Commission should account for in
considering whether to allow an
expanded role in the make-ready
process for utility-approved contractors.
We also seek comment on liability safe
harbors that would protect the property
and safety interests of existing attachers,
utilities, and their customers when new
attachers use utility-approved
contractors to perform make-ready work
on poles and existing equipment on the
poles. For example, to ensure
protections for existing attachers and
utilities, would it be reasonable to
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impose on new attachers requirements
such as surety bonds, indemnifications
for outages and damages, and self-help
remedies for utilities and existing
attachers to fix problems caused by new
attacher contractors? Are there other
safeguards that we can adopt to protect
existing attachers, utilities, and their
customers in the event that the new
attacher’s contractors err in the
performance of make-ready work?
16. For make-ready work that would
be considered ‘‘routine’’ in the
communications space of a pole, is it
reasonable to allow a new attacher to
use a utility-approved contractor to
perform such work after notice has been
sent to existing attachers? Would it be
reasonable to allow new attachers to use
utility-approved contractors to perform
complex make-ready work as well?
Also, because of the special skills
required to work on wireless
attachments above the communications
space on a pole, we seek comment on
whether utilities should be required to
keep a separate list of contractors
authorized to perform this specialized
make-ready work. Currently, utilities are
required to make available and keep upto-date a reasonably sufficient list of
contractors authorized to perform makeready work in the communications
space on a utility pole. Should utilityapproved contractors that work for new
attachers be allowed to perform makeready work on wireless attachments
above the communications space on a
pole?
17. We also seek comment on the
following proposals that address the
safety and property concerns of existing
attachers and utilities:
• Requiring all impacted attachers
(new, existing, and utilities) to agree on
a contractor or contractors that the new
attacher could use to perform makeready work; and/or
• requiring that existing attachers (or
their contractors) be given the
reasonable opportunity to observe the
make-ready work being done on their
existing equipment by the new
attachers’ contractors.
We seek comment on the benefits of
these and other alternative proposals
involving the use of utility-approved
contractors to perform make-ready
work.
18. New Attachers Performing MakeReady Work. We seek comment on
whether we should adopt rules to allow
new attachers (using utility-approved
contractors) to perform routine makeready work in lieu of the existing
attacher performing such work.
Recognizing that existing attachers may
oppose such proposals, we seek
comment on alternatives that would
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address their safety and property
concerns, while still shortening the
make-ready timeline. Allowing the new
attacher to perform make-ready work
would save time over the current
Commission timeline by permitting the
new attacher to initiate routine makeready work after giving brief (or no)
notice to existing attachers. We
recognize that such a process would
exclude existing attachers from the
opportunity to perform routine makeready work and we seek comment on
whether such an exclusion is
reasonable. We note that in crafting the
pole attachment timeline adopted in
2011, the Commission sought to strike a
balance between the goals of promoting
broadband infrastructure deployment by
new attachers and safeguarding the
reliability of existing networks. We seek
comment on the risks and drawbacks of
any proposal that seeks to change that
balance by letting new attachers
conduct routine make-ready work
without allowing existing attachers the
opportunity to do so.
19. We also recognize that a number
of carriers have raised concerns about
allowing new attachers to conduct
routine make-ready work on equipment
belonging to existing attachers. As
AT&T pointed out in its challenge to
Louisville’s pole attachment ordinance,
the movement and rearrangement of
communications facilities has public
safety implications; we thus seek
comment on AT&T’s claim that the
‘‘service provider whose pre-existing
facilities are at issue plainly is in the
best position to determine whether
required make-ready work could be
service-affecting or threaten the
reliability of its network.’’ Charter, in a
separate challenge to Louisville’s
ordinance, argues that allowing
competitors to perform make-ready
work on its equipment could
intentionally or unintentionally
‘‘damage or disrupt [Charter]’s ability to
serve its customers, creating an
inaccurate perception in the market
about [Charter]’s service quality and
harming its goodwill.’’ We seek
comment on Charter’s claim and
whether make-ready procedures that
exclude existing attachers could lead to
consumer misunderstandings in the
event of service disruptions that occur
during make-ready work by other
attachers. Should new attachers that
perform make-ready work be required to
indemnify, defend, and hold harmless
existing attachers for damages or
outages that occur as a result of makeready work on their equipment?
20. Post Make-Ready Timeline. If
existing attachers are not part of the
make-ready process, then we seek
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comment on an appropriate timeline for
inspections and/or surveys by the
existing attachers after the completion
of make-ready work. For example,
Nashville, Tennessee’s pole attachment
ordinance allows for a 30-day timeline
for the inspection and resolution of
problems detected by existing attachers
to the make-ready work done on their
equipment. Is 30 days enough time to
detect and rectify problems caused by
improper make-ready work? Are there
reasonable alternative time periods for
existing attachers to review make-ready
work and fix any detected problems?
For example, the Louisville, Kentucky
pole attachment ordinance allows for a
14-day inspection period. Further, is it
reasonable to allow the existing attacher
to elect to fix the defective make-ready
work on its own (at the new attacher’s
expense) or to require the new attacher
to fix the problems caused by its work?
21. One-Touch, Make-Ready. We seek
comment on the potential benefits and
drawbacks of a pole attachment regime
patterned on a ‘‘one-touch, make-ready’’
(OTMR) approach, which includes
several of the concepts discussed above
as part of a larger pole attachment
framework. Both Nashville, Tennessee
and Louisville, Kentucky have adopted
pole attachment regimes that involve
elements of an OTMR policy. The
Commission has noted that OTMR
policies ‘‘seek to alleviate ‘a significant
source of costs and delay in building
broadband networks’ by ‘lower[ing] the
cost of the make-ready process and
speed[ing] it up.’ ’’ Would a new pole
attachment timeline patterned on an
OTMR approach help spur positive
decisions on broadband infrastructure
deployment? According to the Fiber to
the Home Council, an OTMR approach
‘‘minimizes disruption in the public
rights-of-way and protects public safety
and aesthetics’’ while also speeding
broadband deployment. We seek other
assessments and analysis of the benefits
and drawbacks of an OTMR pole
attachment process. Would some blend
of an OTMR approach coupled with the
current Commission pole attachment
timeline and protections help spur
timely access to poles?
22. Under the Nashville OTMR
ordinance, the pole attachment process
works as follows: (1) A new attacher
submits an attachment application to
the utility and after approval of the
application, the new attacher notifies
the utility of the need for make-ready
work; (2) the new attacher then
contracts with a utility-approved
contractor to perform all of the
necessary make-ready work; (3) the new
attacher gives 15 days’ prior written
notice to existing attachers before
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initiating make-ready work; (4) within
30 days after the completion of makeready, the new attacher sends written
notice of the make-ready work to
existing attachers; (5) upon receipt of
such notice, the existing attachers may
conduct a field inspection of the makeready work within 60 days; (6) if an
existing attacher finds a problem with
the make-ready work, then it may notify
the new attacher in writing (within the
60-day inspection window) and elect to
either fix the problem itself at the new
attacher’s expense or instruct the new
attacher to fix the issue; and (7) if a new
attachment involves ‘‘complex’’ makeready work, then the new attacher must
notify each existing attacher of the
make-ready work at least 30 days before
commencement of the work in order to
allow the existing attachers the
opportunity to rearrange their
equipment to accommodate the new
attacher—if such work is not performed
by the existing attachers within 30 days,
then the new attacher can perform the
required make-ready work using utilityapproved contractors. We seek detailed
comment on the benefits and drawbacks
of this approach. Are there steps in the
Nashville pole attachment process
where utilities, new attachers, and
existing attachers could all benefit from
streamlined access to poles, especially
as compared to the current Commission
pole attachment timeline? Rather than
adopting a wholesale OTMR approach
to the pole attachment process, are there
individual OTMR elements that could
form the basis of a more preferable
timeline than what currently exists in
the Commission’s rules?
23. The Louisville OTMR ordinance
differs from the one in Nashville in that
it does not require new attachers to send
pre-make-ready notices to existing
attachers for routine requests, it
shortens the timeline for the post-makeready field inspection for routine makeready work from 60 days to 14 days, it
requires existing attachers to notify the
new attacher of any problems (and the
election of how to fix those problems)
within 7 days after the field inspection,
and it requires new attachers to correct
any problems within 30 days of the
notice. We seek comment on the
alternatives advanced in the Louisville
OTMR ordinance and whether the
Commission should incorporate any or
all of these concepts into a new pole
attachment regime. Does the Louisville
ordinance better balance the concerns of
existing attachers and utilities than the
Nashville approach?
24. In addition, CPS Energy, a utility
based in San Antonio, Texas, has
implemented an OTMR approach for
access to its poles. Under the CPS
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Energy policy, the timeline for the pole
attachment process is as follows: (1) 21
days for CPS Energy to review
completed pole attachment applications
(with a unilateral option for an
additional 7 days), survey affected
poles, and produce a make-ready cost
estimate; (2) 21 days for the new
attacher to approve the make-ready cost
estimate and provide payment; (3) CPS
Energy notice to existing attachers of
impending make-ready work; (4) 60
days for CPS Energy to complete any
required make-ready work in the
electrical space, and 90 days for the new
attacher to complete all other routine
make-ready work at its expense using
contractors approved by CPS Energy
(with option to request additional 30
days); (5) new attachers must give 3
days’ notice to existing attachers of
impending make-ready work and must
specify whether the work is complex,
such that it ‘‘poses a risk of
disconnection or interruption of service
to a Critical Communications Facility’’
(any complex make-ready work must be
completed by the new attacher within
30 days after notice is provided to
affected existing attachers); (6) 15 days’
notice from new attachers to affected
existing attachers after completion of
make-ready work; (7) 15 days for
existing attachers to inspect make-ready
work on their equipment; and (8) 15
days for new attachers to fix any
problems after notice from existing
attachers. We seek comment on this
approach, which varies from the
ordinances adopted in Nashville and
Louisville, especially in terms of the
timing of the various pole attachment
stages and the ability of new attachers
to perform complex make-ready work
themselves. What are the benefits and
drawbacks of the process adopted by
CPS Energy? Is it significant that this
process is a utility-adopted approach as
opposed to a government-adopted
approach? What can the Commission do
to encourage other utilities to adopt pole
attachment policies like the one
instituted by CPS Energy?
25. Other Pole Attachment Process
Proposals. Another pole attachment
proposal, advanced by members of the
Nashville City Council who opposed the
OTMR ordinance, is styled ‘‘right-touch,
make-ready’’ (RTMR), and it would
provide a utility 30 days in which to
review a pole attachment application,
then provide existing attachers 45 days
to complete make-ready work. Existing
attachers failing to meet the 45-day
deadline would be charged $500 per
pole per month until required makeready work is completed. We seek
comment on the reasonableness of this
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approach. What are the advantages and
drawbacks of a RTMR approach as
opposed to an OTMR approach? Could
elements of both approaches be blended
together to form a better alternative to
the Commission’s current pole
attachment timeline? Would the $500
per pole per month charge be enough of
an incentive to encourage existing
attachers to complete make-ready work
by the 45-day deadline? Would it be
reasonable to include in a RTMR
approach the ability of new attachers (or
the utility) to perform make-ready work
at the expense of existing attachers who
fail to meet the 45-day deadline?
26. As another way to incent
accelerated make-ready timelines, could
there be a standard ‘‘bonus’’ payment or
multiplier applied to the make-ready
reimbursements sought by existing
attachers from new attachers if the
overall timelines are met? By basing
such incentive payments on the overall
timeline being achieved by existing
attachers, does this create effective
incentives for parties to collaborate and
find opportunities for efficiency? For
instance, might multiple existing
attachers agree to use the same makeready contractor so they all can reap the
reward of the incentive payments?
While such incentives could
theoretically be arranged through
private contracting, would using this as
the default system benefit smaller, new
attachers who may find complicated
negotiations a challenge?
27. Making more information publicly
available regarding the rates, location,
and availability of poles also could lead
to faster pole attachment timelines. We
seek comment on the types of pole
attachment data resources currently
available. Are there ways the
Commission could incentivize utilities
to establish online databases, maps, or
other public information sources
regarding pole rates, locations, and
availability? To what extent are utilities
or other entities already aggregating pole
information online, either for internal
tracking purposes or externally for
potential or existing attachers? What
pole-related information other than
rates, location, and availability could
utilities make publicly available (e.g.,
number of existing attachers, physical
condition, available communications
space, the status of make-ready work,
status of pole engineering surveys)?
Should similar information also be
made publicly available for ducts,
conduits, and rights-of-way? We
recognize that increasing transparency
of cost information could lead to more
efficient pole attachment negotiations.
What steps should the Commission take
to facilitate access to information
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regarding pole attachment rates and
costs from pole owners subject to
section 224? For instance, should pole
owners be required to make pole
attachment rates publicly available
online? What are the benefits and
drawbacks of making pole attachment
rate information publicly available?
Could the Commission facilitate the
creation of a centralized clearinghouse
of pole attachment rate information, and
if so how?
28. We seek comment on these
proposals and any others (or
combinations thereof) that could help
speed the pole attachment process, yet
still address the safety and property
concerns of existing attachers and
utilities. Might there be ‘‘hybrid’’
approaches that incent parties to
expeditiously complete the make-ready
process when private negotiations fail
within a given time period? For
instance, if utilities, existing attachers,
and new attachers cannot agree on
make-ready plans within 15 days, could
the following arrangement be used:
First, the new attacher would select a
‘‘default’’ contractor (approved by the
utility); second, the existing attachers
would be able to accept the default
contractor or do the make-ready work
themselves (and be reimbursed by the
new attacher) within a specified
timeframe with penalties for failure to
meet the make-ready deadline? If having
a single default contractor do all the
work at once will speed deployment, are
there ways within this framework to
incent existing attachers to allow the
new attacher to use the default
contractor? For instance, might existing
attachers choosing to do make-ready
work themselves be limited in the
amount they charge for the work? Could
such a limit be set as a proportional
split among existing attachers that is
based on the total make-ready costs that
the new attacher would have incurred
under an OTMR approach? Would such
incentives encourage existing attachers
to choose the default contractor in
situations where they have little
concern about harm to their equipment
but still allow them to do the work
themselves when they have concerns?
29. We seek discussions of the relative
merits and drawbacks of these pole
attachment approaches or combinations
thereof. For example, would an OTMR
approach (or some variant thereof)
benefit consumers through increased
efficiencies that could lower the costs of
deployment? Is there any evidence to
show how much less pole attachment
costs are if using an OTMR approach as
compared with the Commission’s
current pole attachment timeline? How
should we balance the benefits to
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society from greater speed of
deployment and cost savings versus the
need to ensure that safety and property
concerns are not compromised?
30. We also recognize that some
broadband providers encounter
difficulties in accessing poles, ducts,
conduits, and rights-of-way owned by
entities that are not subject to section
224 of the Communications Act, such as
municipalities, electric cooperatives,
and railroads. ACA members also
submit that there are instances where
accessing infrastructure owned by
municipalities, electric cooperatives,
and railroads is cost prohibitive due to
the pole attachment rates charged. We
seek comment on actions that the
Commission might be able to undertake
to speed deployment of next generation
networks by facilitating access to
infrastructure owned by entities not
subject to section 224. How can the
Commission encourage or facilitate
access to information about pole
attachment rates and costs with respect
to these entities, and what are the
benefits and drawbacks of these
potential steps? Would increased
transparency regarding pole attachment
rates and costs for Commissionregulated pole owners, discussed above,
benefit potential attachers to nonCommission-regulated poles by
providing data that would be useful in
contractual negotiations? If so, would
this facilitate broadband deployment?
31. Access to Conduit. We seek
comment on ways to make the process
of gaining access specifically to utility
conduit more transparent. We ask
whether there are existing online
databases or other publicly-available
resources to aid telecommunications
and cable providers in determining
where available conduit exists. Do
utilities or municipalities have readily
available information on the location
and cost of access to conduit? Are there
‘‘best practices’’ that utilities or
municipalities have established that
make it easier for providers to obtain
crucial information on conduit access?
We seek comment on whether any local
or state jurisdictions have policies on
making conduit information more
transparent and widely available,
especially with regard to alerting the
public and providers about the timing
and location of conduit trenches being
dug by utilities.
B. Re-Examining Rates for Make-Ready
Work and Pole Attachments
1. Reasonableness of ‘‘Make-Ready’’
Costs
32. We seek comment on proposals to
reduce make-ready costs and to make
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such costs more transparent. In general,
make-ready charges must be just and
reasonable under section 224(b)(1) of
the Act. Currently, however, make-ready
fees are not subject to any mandatory
rate formula set by the Commission. We
seek comment on whether the makeready costs being charged today are just
and reasonable, and whether such costs
represent a barrier to broadband
infrastructure deployment. Further, we
seek comment on ways to encourage
utilities, existing attachers, and new
attachers to resolve more make-ready
pole attachment cost and responsibility
issues through private negotiations.
33. Requiring Utilities to Make
Available Schedules of Common MakeReady Charges. We seek comment on
whether we should require utilities to
provide potential new attachers with a
schedule of common make-ready
charges to create greater transparency
for make-ready costs. To what extent
does the availability of schedules of
common make-ready charges help
facilitate broadband infrastructure
deployment? INCOMPAS suggests that
the Commission should revisit its 2011
decision refraining from requiring
utilities to provide schedules of
common make-ready charges upon
request. According to INCOMPAS,
‘‘make ready charges are not predictable
or verifiable in many cases, making it
difficult for competitors to plan their
builds and accurately predict
construction.’’ We seek comment on the
benefits and any potential burdens
associated with requiring utilities to
provide schedules of make-ready
charges.
34. Further, we seek comment on
whether and how schedules of common
make-ready charges are made available,
used, and implemented by both utilities
and potential new attachers today. In
the 2011 Pole Attachment Order, the
Commission received evidence from
utilities that many already make
information about common make-ready
charges available on request. Is that
practice still prevalent today and, if so,
what methods are most frequently used
to provide such schedules (e.g., Web
sites, paper schedules, telephonically)?
We also seek comment on which makeready jobs and charges are the most
common, and thus most easily included
in a generalized schedule of charges. In
addition, we seek comment on any
comparable state requirements that
require utilities to publish or make
available schedules of common makeready charges. We also seek comment
on whether there are other mechanisms
currently in use, such as standardized
contract terms, that provide the
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necessary information and transparency
to the make-ready process.
35. Reducing Make-Ready Charges.
We seek comment on reasonable ways
to limit the make-ready fees charged by
utilities to new attachers. Would it
provide certainty to the make-ready
process if the Commission adopted a
rule limiting make-ready fees imposed
on new attachers to the actual costs
incurred to accommodate a new
attachment? As part of the pole
attachment complaint process, the
Commission has held that utilities ‘‘are
entitled to recover their costs from
attachers for reasonable make-ready
work necessitated by requests for
attachment. Utilities are not entitled to
collect money from attachers for
unnecessary, duplicative, or defective
make-ready work.’’ Would codifying the
holding that new attachers are
responsible only for the cost of makeready work made necessary because of
their attachments help to ensure that
make-ready costs are just and
reasonable?
36. We also seek comment on other
alternatives for reducing make-ready
costs. For example, would it be
reasonable to allow utilities to set a
standard charge per pole that a new
attacher may choose in lieu of a costallocated charge? Should the choice
belong to the utility or the new attacher?
Would a per-pole charge of, for
example, $300, $400, or $500 permit
utilities to recover their reasonable
make-ready costs and provide new
attachers with an affordable alternative
to negotiating with the utility over the
applicable costs to be included in makeready charges? We seek comment on the
viability of such an approach. We also
ask whether it would be reasonable to
require utilities to reimburse new
attachers for make-ready costs for
improvements that subsequently benefit
the utility (e.g., the modification allows
utilities to use additional space on a
pole for its own uses or creates a vehicle
for the utility to receive additional
revenues from subsequent attachers). If
so, then how would the new attachers
and utilities manage that process? We
seek comment on the potential tradeoffs
of such an approach, which may help to
keep make-ready costs low for new
attachers, but also pose new challenges
for utilities and new attachers to
administer. We note that pursuant to
section 1.1416(b) of the Commission’s
rules, attachers who directly benefit
from a new pole or attachment already
are required to proportionately share in
the costs of that pole or attachment. The
proportionate share of the costs
attributable to the subsequent attacher is
reduced to take into account
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depreciation to the pole that occurs after
the modification. In adopting this
requirement, the Commission ‘‘intended
to ensure that new entrants, especially
small entities with limited resources,
bear only their proportionate costs and
are not forced to subsidize their laterentering competitors.’’ Should we
interpret (or modify) this rule to apply
to utilities when make-ready
improvements subsequently benefit the
utility? Conversely, we seek comment
on whether requiring utilities to pass a
percentage of additional attachment
benefits back to parties with existing
attachments would result in a
disincentive to add new competitors to
modified poles.
37. We also seek comment on whether
the Commission’s complaint process
provides a sufficient mechanism by
which to ensure that make-ready costs
are just and reasonable. Commenters
arguing that the Commission’s
complaint process is not a sufficient
limitation on make-ready costs should
propose specific alternatives to ensure
the reasonableness of make-ready
charges and explain why the benefits of
such alternatives would outweigh the
burdens of a new Commission-imposed
mandate for make-ready charges. Are
there state regulatory approaches or
alternatives governing the
reasonableness of make-ready charges
that the Commission should consider
implementing?
2. Excluding Capital Expenses From
Pole Attachment Rates
38. Capital Expenses Recovered via
Make-Ready Fees. We propose to codify
a rule that excludes capital costs that
utilities already recover via make-ready
fees from pole attachment rates. Almost
forty years ago, the Commission found
that ‘‘where a utility has been directly
reimbursed by a [cable television]
operator for non-recurring costs,
including plant, such costs must be
subtracted from the utility’s
corresponding pole line capital account
to insure that [cable television]
operators are not charged twice for the
same costs.’’ Since that time, the
Commission has made clear that
‘‘[m]ake-ready costs are non-recurring
costs for which the utility is directly
compensated and as such are excluded
from expenses used in the rate
calculation.’’ As such, ‘‘if a utility is
required to replace a pole in order to
provide space for an attacher [and] the
attacher pays the full cost of the
replacement pole,’’ the capital expenses
associated with the installation of those
poles should be wholly excluded from
pole attachment rates for all attachers.
Nonetheless, it appears that not all
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attachers benefit from lower rates in
these circumstances, in part because our
rules do not explicitly require utilities
to exclude already-reimbursed capital
costs from their pole attachment rates.
We seek comment on how utilities
recalculate rates when make-ready pays
for a new pole, what rate reductions
pole attachers have experienced when
poles are replaced through the makeready process, and whether attachers
have experienced the inclusion of
already-reimbursed capital costs in their
pole attachment rates. We similarly seek
comment on how utilities treat capital
expenses associated with their own
make-ready work. When utilities replace
poles to accommodate their own needs
or to create additional electrical space,
do they appropriately treat associated
capital expenses as make-ready work
that is wholly excluded from pole
attachment rates? How do existing
attachers know when new attachers or
the utility have fully paid the capital
expenses as make-ready costs so that
those expenses should be wholly
excluded from rates going forward?
39. We seek comment on whether
amending section 1.1409(c) of our rules
to exclude capital expenses already
recovered via make-ready fees from
‘‘actual capital costs’’ is sufficient to
ensure no double recovery occurs by
utilities. We seek comment on whether
any other changes to the Commission’s
rules are necessary and reasonable to
provide certainty to attachers and
utilities about the treatment of pole
capital costs that already have been
recovered via make-ready.
40. Capital Costs Not Otherwise
Recovered Via Make-Ready Fees. We
seek comment on whether we should
exclude capital costs that are not
otherwise recoverable through makeready fees from the upper-bound cable
and telecommunications pole
attachment rates. In setting those rates,
the Commission previously found it
appropriate to allow utilities to include
in the rates some contribution to capital
costs aside from those recovered
through make-ready fees. In revisiting
this issue, we seek comment on the
extent to which the capital costs of a
pole, other than those paid through
make-ready fees, are caused by attachers
other than the utility (especially when
there is space already available on the
pole). If none or only a small fraction of
the capital costs, other than those paid
for through make-ready fees, are caused
by attachers other than the utility,
would this justify the complete
exclusion of these capital costs from the
pole attachment rate? To what extent
would the exclusion of such capital
costs further reduce pole attachment
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rates? To what extent would the
exclusion of these particular capital
costs from the rate formulas burden the
ratepayers of electric utilities? What
policy justifies charging pole attachers,
whose costs of deployment may
determine the scope of their investment
in infrastructure, anything more than
the incremental costs of attachment to
utilities?
41. We note that although the rate
formula for operators ‘‘solely’’ providing
cable service sets an upper bound
explicitly tied to ‘‘actual capital costs,’’
the rate formula for telecommunications
carriers is tied only to ‘‘costs.’’ The
Commission has previously interpreted
the term ‘‘cost’’ in the latter formula to
exclude at least some capital costs.
Should we revisit this interpretation
and interpret the term ‘‘cost’’ in the
telecommunications pole attachment
formula to exclude all capital costs?
Would doing so avoid the awkward
interpretation contained in our present
rules that defines the term ‘‘cost’’ in two
separate different ways at the same
time?
42. Similarly, we note that our more
general authority over pole attachments
only requires that rates be ‘‘just and
reasonable.’’ We seek comment on the
appropriate rate for commingled
services, including when a cable
operator or a telecommunications
carrier offers information services as
well as cable or telecommunications
services over a single attachment.
Should we set that rate for commingled
services based on the upper bound of
the cable rate formula, the
telecommunications rate formula, or
some third option? Should we exclude
capital costs from the rate formula we
use to determine the commingled
services rate? The cable rate formula
also sets a lower bound of ‘‘the
additional costs of providing pole
attachments.’’ How would that differ
from any of the rates discussed
heretofore? Should we set the
commingled services rate equal to the
lower bound of the cable rate formula?
43. We seek comment on what
specific amendments we should
consider to section 1.1409 of our rules
to effectuate any changes.
3. Pole Attachment Rates for Incumbent
LECs
44. In the 2011 Pole Attachment
Order, the Commission declined to
adopt a pole attachment rate formula for
incumbent LECs, opting instead to
evaluate incumbent LEC complaints on
a case-by-case basis to determine
whether the rates, terms, and conditions
imposed on incumbent LEC pole
attachments are consistent with section
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224(b) of the Act. The Commission held
that it is ‘‘appropriate to use the rate of
the comparable attacher as the just and
reasonable rate for purposes of section
224(b)’’ when an incumbent LEC enters
into a new agreement with a utility and
can demonstrate ‘‘that it is obtaining
pole attachments on terms and
conditions that leave them comparably
situated to telecommunications carriers
or cable operators.’’ Conversely, when
the incumbent LEC attacher cannot
make such a demonstration, the
Commission found that a higher rate
based on the Commission’s pre-2011
telecommunications rate formula should
serve as a ‘‘reference point’’ for
evaluating whether pole attachment
rates charged to incumbent LECs are just
and reasonable. In the years since
adoption, this formulation has led to
repeated disputes between incumbent
LECs and utilities over appropriate pole
attachment rates.
45. To end this controversy, we
propose that the ‘‘just and reasonable
rate’’ under section 224(b) for
incumbent LEC attachers should
presumptively be the same rate paid by
other telecommunications attachers, i.e.,
a rate calculated using the most recent
telecommunications rate formula. Under
this approach, the incumbent LEC
would no longer be required to
demonstrate it is ‘‘comparably situated’’
to a telecommunications provider or a
cable operator; instead the incumbent
LEC would receive the
telecommunications rate unless the
utility pole owner can demonstrate with
clear and convincing evidence that the
benefits to the incumbent LEC far
outstrip the benefits accorded to other
pole attachers. We seek comment on
this proposal. What demonstration
should be sufficient to show that an
incumbent LEC attacher should not be
entitled to the telecommunications rate
formula? For instance, should an
incumbent LEC have to own a majority
of poles in a joint ownership network?
Should an incumbent LEC have to have
special access to modify a utility’s poles
without prior notification? How should
the relative rates charged to the utility
and the incumbent LEC factor into the
analysis? If an incumbent LEC has
attachments on utility poles pursuant to
the terms of a joint use agreement,
should the incumbent LEC entitlement
to the telecommunications rate be
conditioned on making commensurate
reductions in the rates charged to the
utility for attaching to the incumbent
LEC’s poles? We also seek comment on
the rate that should apply to incumbent
LECs in the event the utility owner can
demonstrate the telecommunications
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rate should not apply. In these
instances, should the Commission use
the pre-2011 telecommunications rate
formula? We also seek comment on an
alternative pole attachment rate formula
approaches for incumbent LECs.
Commenters supporting alternative
approaches should provide specific
inputs and methodology that could be
used in such a formula.
46. Given that the Commission based
its decision in the 2011 Pole Attachment
Order to refrain from establishing pole
attachment rates for incumbent LECs in
part on the high levels of incumbent
LEC pole ownership, we seek comment
on the relative levels of pole ownership
between utilities, incumbent LECs, and
other industry participants. If pole
ownership levels have changed, what
bearing should that have on the rates
charge to incumbent LECs?
C. Pole Attachment ‘‘Shot Clock’’ For
Pole Attachment Complaints
47. Establishing a 180-Day Shot
Clock. We propose to establish a 180day ‘‘shot clock’’ for Enforcement
Bureau resolution of pole access
complaints filed under section 1.1409 of
our rules. A ‘‘pole access complaint’’ is
a complaint that alleges a complete
denial of access to utility poles. This
term does not encompass a complaint
alleging that unreasonable rates, terms,
or conditions that the utility demands as
a condition of attachment (e.g.,
adherence to certain engineering
standards) amounts to a denial of pole
access. We seek comment on this
proposal. The 2011 Pole Attachment
Order noted that ‘‘a number of
commenters expressed concern about
the length of time it takes for the
Commission to resolve pole attachment
complaints,’’ but the Commission
determined that the record at the time
did not warrant the creation of new pole
attachment complaint rules. We now
seek comment on whether we should
revisit that earlier conclusion by
creating a shot clock and whether 180
days is a reasonable timeframe for the
Enforcement Bureau to resolve pole
access complaints. We note that under
section 224(c)(3)(B) of the Act, a state
that has asserted jurisdiction over the
rates, terms, and conditions of pole
attachments could lose the ability to
resolve a pole attachment complaint if
it does not take final action within 180
days after the complaint is filed with the
state. Should this statutory time period
for state resolution of a pole attachment
complaint inform our consideration as
to what constitutes a reasonable
timeframe for Enforcement Bureau
consideration of a pole attachment
complaint? We additionally seek
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alternatives to the 180-day time period.
For example, are there shorter state
timelines for the resolution of pole
attachment complaints? Would 150
days, 120 days, 90 days, or an even
shorter timeframe be reasonable for the
Enforcement Bureau to resolve a pole
access complaint? What would be the
benefits and drawbacks for a shorter
timeframe for resolution of pole access
complaints? Also, we seek comment
regarding whether the current length of
Enforcement Bureau consideration of
pole access complaints has burdened
broadband infrastructure deployment.
How, if at all, would a shot clock
(whether it be 180 days or some
different time period) affect new
attacher decisions to deploy broadband
infrastructure? We seek comment on the
ramifications of the Enforcement Bureau
exceeding the shot clock and on
reasonable consequences for the
Enforcement Bureau exceeding the
clock.
48. Starting the Shot Clock at the
Time a Complaint Is Filed. We seek
comment on when to start the proposed
180-day shot clock. We propose starting
the shot clock at the time the pole
access complaint is filed, as is the case
for state complaints under section
224(c)(3)(B) of the Act, and we seek
comment on this proposal. We also seek
comment on alternatives that would
start the shot clock later in the process,
such as when a reply is filed by the
complainant pursuant to section
1.1407(a) of our rules or, if discovery is
requested, when discovery is complete.
Starting the clock at these later
junctures would allow the Enforcement
Bureau sufficient time to review the
relevant issues involved in a pole access
complaint and would not disadvantage
the timing of the Enforcement Bureau’s
review if the pleading cycle or discovery
takes longer than expected. Are there
instructive alternative starting points
adopted by states for the initiation of
their pole attachment complaint
proceedings? If the shot clock does not
start until sometime after a pole access
complaint is filed, would it make sense
to institute a shot clock that is shorter
than 180 days?
49. Pausing the Shot Clock. We seek
comment on whether the Enforcement
Bureau should be able to pause the
proposed shot clock for a reasonable
time in situations where actions outside
the Enforcement Bureau’s control are
responsible for delaying its review of a
pole access complaint. In the
transactions context, the reviewing
Bureau pauses the shot clock when the
parties need additional time to provide
key information requested by the
Bureau. We propose to allow the
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Enforcement Bureau the discretion to
pause the shot clock in that situation, as
well as when the parties decide to
pursue informal dispute resolution or
request a delay to pursue settlement
discussions after a pole access
complaint is filed. We ask whether these
are valid reasons to pause the shot
clock, and we seek comment on
objective criteria for the Enforcement
Bureau to use in deciding whether such
situations are significant enough to
warrant a pause in the shot clock. We
also seek comment on when the
Enforcement Bureau should resume the
shot clock. Are there objective criteria
that the Enforcement Bureau could use
to judge the satisfactory resolution of an
outstanding issue such that the shot
clock could be resumed? Further, we
propose to alert parties to a pause in the
shot clock (and to a resumption of the
shot clock) via written notice to the
parties. We seek comment on this
proposal.
50. Establishment of Pre-Complaint
Procedures. We seek comment on
whether we should require the parties to
resolve procedural issues and deadlines
in a meeting to be held either remotely
or in person prior to the filing of the
pole access complaint (and prior to the
starting of the shot clock). We seek
comment on the types of issues that the
parties should resolve in a precomplaint meeting. We note that it has
been our standard practice to request
that parties participate in pre-complaint
meetings in order to resolve procedural
issues and deadlines; we find that the
complaint process has proceeded much
more smoothly as a result. We seek
comment on the benefits and drawbacks
of requiring a pre-complaint meeting
and ask whether there are any state precomplaint procedures that could inform
the rules that we develop.
51. Use of Shot Clock for Other Pole
Attachment Complaints. We seek
comment on whether the Commission
should adopt a 180-day shot clock for
pole attachment complaints other than
those relating to access. We also request
comment on whether the length of time
to resolve other pole attachment
complaints has stymied the deployment
of broadband infrastructure. We
additionally seek comment on
reasonable alternatives to a 180-day shot
clock and ask whether there are state
shot clocks for other pole attachment
complaints that could help inform our
review. Should the procedures set forth
above for pole access complaints also
apply to other pole attachment
complaints? What alternatives could we
adopt that would further streamline the
pole attachment complaint process?
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D. Reciprocal Access to Poles Pursuant
to Section 251
52. Background. Section 251 of the
Act provides that ‘‘[e]ach local exchange
carrier’’ has the duty ‘‘to afford access
to the poles, ducts, conduits, and rightsof-way of such carrier to competing
providers of telecommunications
services on rates, terms, and conditions
that are consistent with section 224 [of
this Act].’’ Section 224(a) defines a
‘‘utility’’ that must provide
telecommunications carriers
nondiscriminatory pole access at
regulated rates to include both
incumbent LECs and competitive LECs.
However, the definition of
‘‘telecommunications carrier’’ used in
section 224 ‘‘does not include’’
incumbent LECs, thus denying
incumbent LECs the benefits of section
224’s specific protections for carriers.
53. According to CenturyLink, the
disparate treatment of incumbent LECs
and competitive LECs in section 224(a)
prevents incumbent LECs from gaining
access to competitive LEC-controlled
infrastructure and in doing so dampens
the incentives for all local exchange
carriers to build and deploy the
infrastructure necessary for advanced
services. The Commission initially
examined this issue during its
implementation of the 1996 Act in the
1996 Local Competition Order, where it
determined that section 251 cannot
‘‘[restore] to an incumbent LEC access
rights expressly withheld by section
224.’’ The Ninth Circuit Court of
Appeals disagreed in dicta, noting that
sections 224 and 251 could ‘‘be read in
harmony’’ to support a right of access
for incumbent LECs on other LEC poles.
Despite its skepticism of the
Commission’s analysis in the 1996 Local
Competition Order, the Ninth Circuit
held it was obligated to adhere to that
analysis because the parties had not
directly challenged the 1996 Local
Competition Order via the Hobbs Act.
CenturyLink requests the Commission
revisit our interpretation. Other
commenters in the latest Biennial
Review contend that the Commission’s
interpretation remains valid given
incumbent LECs’ ‘‘first-mover
advantage’’ and ‘‘the ability of large
incumbent LECs to abuse their market
positions to foreclose competition.’’
54. Discussion. We seek comment on
reading the statutes in harmony to
create a reciprocal system of
infrastructure access rules in which
incumbent LECs, pursuant to section
251(b)(4) of the Act, could demand
access to competitive LEC poles and
vice versa, subject to the rates, terms,
and conditions described in section 224.
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Further, we seek comment on necessary
amendments to our rules to effectuate
the changed interpretation in the event
we decide to do so. We also seek
comment on how similar the rules for
incumbent LEC access under section
251 must be to those for other carriers
under section 224 for the rules to be
‘‘consistent’’ with each other.
55. Additionally, we seek comments
and data that will help establish how
often incumbent LECs request access to
competitive LEC infrastructure. How
often do incumbent LECs request access
to infrastructure controlled by
competitive LECs, how frequently are
incumbent LECs denied access, and
how much of an effect does this have on
competition and broadband
deployment? Would the frequency of
incumbent LEC requests for access to
competitive LEC poles change if we
decide to change our interpretation, and
how would that impact broadband
deployment?
III. Expediting the Copper Retirement
and Network Change Notification
Process
56. Section 251 of the Act imposes
specific obligations on incumbent LECs
to promote competition so as to allow
industry to bring ‘‘increased innovation
to American consumers.’’ To that end,
section 251(c)(5) and the Commission’s
part 51 implementing rules require
incumbent LECs to provide public
notice of network changes, including
copper retirement, that would affect a
competing carrier’s performance or
ability to provide service. We propose
revisions to our Part 51 network change
disclosure rules to allow providers
greater flexibility in the copper
retirement process and to reduce
associated regulatory burdens, to
facilitate more rapid deployment of
next-generation networks. We also seek
comment on streamlining and/or
eliminating provisions of the more
generally applicable network change
notification rules.
A. Copper Retirement
57. We seek comment on revisiting
our copper retirement and notice of
network change requirements to reduce
regulatory barriers to the deployment of
next-generation networks. First, we seek
comment on eliminating some or all of
the changes to the copper retirement
process adopted by the Commission in
the 2015 Technology Transitions Order.
We seek comment on the Commission’s
authority to impose the copper
retirement notice requirements adopted
in the 2015 Technology Transitions
Order. Among other things, the new
rules doubled the time period during
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which an incumbent LEC must wait to
implement a planned copper retirement
after the Commission’s release of public
notice from 90 days to 180 days,
required direct notice to retail
customers, states, Tribal entities, and
the Secretary of Defense, and expanded
the types of information that must be
disclosed.
58. Repeal of Section 51.332 and
Return to Prior Short-Term Network
Change Notification Rule. We seek
comment on how best to handle
incumbent LEC copper retirements
going forward to prevent unnecessary
delay and capital expenditures on this
legacy technology while protecting
consumers. First, we seek comment on
eliminating section 51.332 entirely and
returning to a more streamlined version
of the pre-2015 Technology Transitions
Order requirements for handling copper
retirements subject to section 251(c)(5)
of the Act. Specifically, prior to the
2015 Technology Transitions Order,
incumbent LEC copper retirement
notices of less than six months were
regulated under the more flexible
Commission rule that applied to shortterm network change notices. We seek
comment on whether to repeal section
51.332 and whether to reinstate the
prior copper retirement notice rules.
Have the delays and increased burdens
introduced by the revised rules
hindered next-generation network
investment? Have the changes been
effective in protecting competition and
consumers? What are their costs and
benefits? Would adopting our pre-2015
rule, without modification, provide
incumbent LECs with sufficient
flexibility to facilitate their transition to
next-generation networks? Should we
retain our existing rule in substantially
similar format?
59. The 2015 Technology Transitions
Order eliminated the process by which
competitive LECs can object to and seek
to delay an incumbent LEC’s planned
copper retirement when it increased the
‘‘deemed approved’’ timeframe from 90
to 180 days. If we return incumbent LEC
copper retirements to the prior network
notification process, should we
nonetheless retain this change, and, if
so, how should we incorporate it into
our rules? Is some other notice
timeframe more appropriate?
60. The 2015 Technology Transitions
Order also adopted an expanded
definition of copper retirement that
added (1) the feeder portion of copper
loops and subloops, previously
excluded, and (2) ‘‘the failure to
maintain copper loops, subloops, or the
feeder portion of such loops or subloops
that is the functional equivalent of
removal or disabling’’—i.e., de facto
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retirement. Maintenance of existing
copper facilities remains a concern
when an incumbent LEC does not go
through the copper retirement process.
If we return incumbent LEC copper
retirements to the prior network
notification process, should we
nonetheless retain this expanded
definition?
61. The 2015 Technology Transitions
Order also broadened the recipients of
direct notice from ‘‘each telephone
exchange service provider that directly
interconnects with the incumbent LEC’s
network’’ to ‘‘each entity within the
affected service area that directly
interconnects with the incumbent LEC’s
network.’’ It also added a notice
requirement to the Secretary of Defense
as well as the state public utility
commission, Governor of the State, and
any Tribal entity with authority over
Tribal lands in which the copper
retirement is proposed. Have these
direct notice changes adopted by the
Commission meaningfully promoted
facilities investment or preserved
competition in the provision of nextgeneration facilities, and what costs
have the changes imposed? Have these
direct notice changes meaningfully
promoted understanding and awareness
of copper retirements and their impacts,
and what have been the benefits of these
changes? Returning to a version of our
pre-2015 copper retirement rules would
reduce the number of direct notice
recipients from ‘‘each entity’’ to ‘‘each
telephone exchange service provider,’’
and eliminate the other expanded notice
requirements from the 2015 Technology
Transitions Order. We seek comments
on the effects of such a change.
62. Full Harmonization with General
Network Change Notification Process.
Alternatively, we seek comment on
eliminating all differences between
copper retirement and other network
change notice requirements, rendering
copper retirement changes subject to the
same long-term or, where applicable,
short-term network change notice
requirements as all other types of
network changes subject to section
251(c)(5). Even under the Commission’s
rules prior to the 2015 Technology
Transitions Order, there were
differences in the treatment of copper
retirements and other short-term
network change notices. Whereas shortterm network change notices become
effective ten days after Commission
issuance of a public notice, copper
retirement notices became effective
ninety days thereafter. Moreover, an
objection to a copper retirement notice
was deemed denied 90 days after the
Commission’s public notice absent
Commission action on the objection,
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while there is no ‘‘deemed denied’’
provision for other short-term network
change objections. Is there a basis to
continue to have a different set of
network change requirements for copper
retirement? In this regard, we note that
the transition from copper to fiber has
been occurring for well more than a
decade now. We anticipate that
interconnecting carriers are aware that
copper retirements are inevitable and
that they should be familiar by now
with the implications of and processes
involved in accommodating such
changes. We seek comment on this
expectation.
63. Modification of section 51.332. A
second alternative to eliminating section
51.332 entirely would be to retain but
amend section 51.332 to streamline the
process, provide greater flexibility, and
reduce burdensome requirements for
incumbent LEC copper retirements. We
seek comment on how we should
change the rule to afford flexibility and
maximize incentives to deploy nextgeneration facilities. We seek comment
on whether we should adopt these
changes, and whether additional or
different changes should also be
adopted:
• Requiring an incumbent LEC to
serve its notice only to telephone
exchange service providers that directly
interconnect with the incumbent LEC’s
network, as was the case under the
predecessor rules, rather than ‘‘each
entity within the affected service area
that directly interconnects with the
incumbent LEC’s network.’’
• Reducing the waiting period to 90
days from 180 days after the
Commission releases its public notice
before the incumbent LEC may
implement the planned copper
retirement.
• Providing greater flexibility
regarding the time in which an
incumbent LEC must file the requisite
certification.
• Reducing the waiting period to 30
days where the copper facilities being
retired are no longer being used to serve
any customers in the affected service
area.
Should we adopt different timing
thresholds than those specified above,
and if so, what thresholds and why
would different thresholds be better?
Should we reduce the waiting period to
one month and remove the notification
requirements in emergency situations?
Should we modify the existing
requirements for the content of the
notice, and if so, how? Have competitive
LECs availed themselves of the good
faith communication requirement, and
if so, has that requirement caused any
difficulties? If we eliminate the good
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faith communication requirement,
should we include an objection period,
and what form should it take?
Alternatively, should we retain the good
faith communication requirement and
not include an objection period?
64. If we modify section 51.332, we
seek comment on eliminating the
requirement that incumbent LECs
provide direct notice of planned copper
retirements to retail customers, both
residential and non-residential.
Specifically, we seek comment on
eliminating sections 51.332(b)(3), (c)(2),
(d)(6)–(8), and (e)(3)–(4). What would be
the likely impact of eliminating such
notice to consumers, including
consumers who have disabilities and
senior citizens? How do the benefits of
notification compare with the costs in
terms of slower transitions to nextgeneration networks? Are there
alternative ways in which the
Commission can streamline these retail
customer notice rules to make the
process more flexible and less
burdensome on carriers retiring their
copper, while still ensuring consumers
are protected? Finally, how, if at all,
should we modify the requirements for
providing notice under current section
51.332(b)(4) to the states, Tribal entities,
and the Secretary of Defense?
65. Additional Considerations. We
seek comment on additional methods by
which we can provide further flexibility
in the copper retirement process in
conjunction with or separate from the
proposals described above while still
affording interconnecting entities and
other impacted parties the notice they
need. For instance, should the
Commission consider an even shorter
waiting period in certain circumstances,
and if so, in what circumstances and
how much shorter? How, if at all,
should that affect the timing for filing
the required certification? Are there any
other measures we could take to make
the copper retirement process less
burdensome on carriers? Are there any
other measures we could take to make
the copper retirement process more
helpful for consumers and other
impacted parties? Are any technical
changes to our rules necessary to
accommodate reforming the copper
retirement process? For example, should
we revise section 51.329(c)(1) to
eliminate the titles specific to copper
retirement notices, if there would no
longer be a defined term?
B. Network Change Notifications
Generally
66. Next, we seek comment on
methods to reduce the burden of our
network change notification processes
generally. The Commission’s network
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change notification process is the
process by which incumbent LECs
provide ‘‘reasonable public notice of
changes in the information necessary for
the transmission and routing of services
using that local exchange carrier’s
facilities or networks, as well as of any
other changes that would affect the
interoperability of those facilities and
networks.’’ Aside from the copper
retirement notice expansions adopted
by the 2015 Technology Transitions
Order, we last revisited our general
section 251(c)(5) rules in 2004. Do
changes to the telecommunications
marketplace since that time warrant
changes to these rules, more generally,
and if so, what changes? We seek
comment on two specific changes below
and invite commenters to identify other
possible reforms to our network change
notification processes.
67. Section 51.325(c). We specifically
propose eliminating section 51.325(c) of
our rules, which prohibits incumbent
LECs from disclosing any information
about planned network changes to
affiliated or unaffiliated entities prior to
providing public notice. We seek
comment on this proposal. This
prohibition appears to unnecessarily
constrain the free flow of useful
information that such entities may find
particularly helpful in planning their
own business operations. We seek
comment on this view. Alternatively,
we could revise section 51.325(c) of our
rules to permit disclosures to affiliated
and unaffiliated entities, but only to the
extent that the information disclosed is
what the incumbent LEC would include
in its required public notice under
section 51.327. A third possibility
would be to revise section 51.325(c) to
allow such disclosure, but only to the
extent the carrier makes such
information available to all entities that
would be entitled to direct notice of the
network change in question. We seek
comment on these proposals and any
other alternative approaches. If we
permit disclosure to affiliated or
unaffiliated entities prior to public
notice, should we specify any particular
timeframe within which public notice
must follow?
68. What are the potential advantages
and disadvantages of eliminating or
revising section 51.325(c)? When this
rule was first adopted, the goal was to
prevent ‘‘preferential disclosure to
selected entities.’’ Are these concerns
still warranted? We anticipate that
providing incumbent LECs greater
flexibility to disclose information and
discuss contemplated changes before
cementing definitive plans would
benefit these carriers, interconnecting
carriers, and any other interested
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entities to which disclosure may be
useful by providing all such entities
greater time to consider or respond to
possible network changes. We seek
comment on this expectation. To the
extent that concerns about some entities
receiving advanced notice remain
warranted, do any of the specific
revisions proposed above obviate such
concerns, and if not, what approach can
we adopt to address such concerns
while still introducing additional
flexibility?
69. Objection Procedures. Should we
revise or eliminate the procedures set
forth in section 51.333(c) of the
Commission’s rules by which a
telecommunications service provider or
information service provider that
directly interconnects with the
incumbent LEC’s network may object to
the timing of short-term network
changes? What costs, if any, has the
uncertainty introduced by this
procedure imposed? What public
interest benefits are associated with this
requirement? Have competitive LECs
made use of this procedure? Should we
adopt a ‘‘deemed denied’’ timeframe
with respect to objections on which the
Commission has not acted within some
specified timeframe? Should we revise
the objection procedure in any other
way?
C. Section 68.110(b)
70. We seek comment on eliminating
or modifying section 68.110(b) of our
rules, which requires that ‘‘[i]f . . .
changes [to a wireline
telecommunications provider’s
communications facilities, equipment,
operations or procedures] can be
reasonably expected to render any
customer’s terminal equipment
incompatible with the communications
facilities of the provider of wireline
telecommunications, or require
modification or alteration of such
terminal equipment, or otherwise
materially affect its use or performance,
the customer shall be given adequate
notice in writing, to allow the customer
an opportunity to maintain
uninterrupted service.’’ We seek
comment on the benefits and costs of
the current rule and whether the
benefits outweigh the costs. How is such
notice under that rule provided today,
and specifically, how would a carrier be
able to know whether ‘‘any’’ terminal
equipment would be affected? Do
customers still rely on or benefit from
the notice required by section 68.110(b)?
To what extent do individuals with
disabilities still rely on TTYs or other
specialized devices or services in an
analog environment? To what extent
have individuals with disabilities
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adopted alternative means of
communications, whether using
telecommunications relay services,
texting, videophones, or other online
communications? To what extent have
such individuals relied on terminalequipment-incompatibility notices in
the past, and are alternative means
available that would be more effective at
targeting affected individuals with
disabilities? We seek comment on the
benefits and costs of the current rule
and whether the benefits outweigh the
costs. Alternatively, should the rule be
retained but certain types of changes
categorically exempted? The
Commission’s current copper retirement
rules require incumbent LECs to certify
compliance with section 68.110(b). If we
eliminate section 68.110(b), we propose
eliminating this certification
requirement, and we seek comment on
this proposal.
IV. Streamlining the Section 214(a)
Discontinuance Process
71. Among other things, section
214(a) requires carriers to obtain
authorization from the Commission
before discontinuing, reducing, or
impairing service to a community or
part of a community. Note that for
convenience, in certain circumstances
this NPRM uses ‘‘discontinue’’ (or
‘‘discontinued’’ or ‘‘discontinuance,’’
etc.) as shorthand that encompasses the
statutory terms ‘‘discontinue, reduce, or
impair’’ unless the context indicates
otherwise. With respect to section
214(a)’s discontinuance provision,
generally, and the Commission’s
implementing rules specifically, carriers
have asserted ‘‘that exit approval
requirements are among the very most
intrusive forms of regulation.’’ In this
section, we seek comment on targeted
measures to shorten timeframes and
eliminate unnecessary process
encumbrances that force carriers to
maintain legacy services they seek to
discontinue.
72. We believe that modifying our
discontinuance processing for legacy
systems to reduce burdens and protect
customers will facilitate carriers’ ability
to retire legacy network infrastructure
and will accelerate the transition to next
generation IP-based networks. We seek
comment on this view.
A. Applications That ‘‘Grandfather’’
Existing Customers
73. Streamlining the Public Comment
Period. We propose to streamline the
section 214(a) discontinuance process
for applications that seek authorization
to ‘‘grandfather’’ low-speed legacy
services for existing customers.
‘‘Grandfathering’’ a service in section
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214 parlance means that a carrier
requests permission to stop accepting
new customers for the service while
maintaining service to existing
customers. We specifically propose to
reduce the public comment period to a
uniform 10 days for all applications
seeking to grandfather legacy low-speed
services regardless of whether the
provider filing the application is a
dominant or non-dominant carrier. We
seek comment on this proposal.
74. As a threshold matter, we seek
comment on whether expediting the
review and authorization of applications
to grandfather low-speed services offers
benefits to discontinuing carriers
generally. Will grandfathering a
particular service create greater
regulatory parity for
telecommunications carriers compared
to other segments of the industry? What
sort of costs does such a requirement
impose on carriers and customers
relative to the benefits it imparts? We
believe that section 214 provides us
ample authority to implement the
streamlining measures we propose. We
seek comment on this belief.
75. More specifically, we seek
comment on the streamlined 10-day
comment period we have proposed.
Will this comment period allow
adequate time for interested parties to
review and consider discontinuance
applications from carriers and to file
comments on these applications, if
necessary? Is there a different time
period we should consider, e.g., some
temporal interval that is either shorter
or longer than the 10-day comment
period we have proposed? Should we
reduce the time period for reviewing
and granting applications to grandfather
higher-speed services as well, and if so,
how? While we have proposed to
subject applications from both dominant
and non-dominant carriers to a uniform
10-day comment period, we seek
comment on whether there is reason to
maintain disparate comment periods for
dominant versus non-dominant carriers
in this context?
76. Streamlining the Auto-Grant
Period. We propose that all applications
seeking to grandfather low-speed legacy
services be automatically granted on the
25th day after public notice unless the
Commission notifies the applicant that
such a grant will not be automatically
effective. Under our current rules, an
application by a domestic, dominant
carrier will be automatically granted on
the 60th day after its filing unless the
Commission notifies the applicant that
the grant will not be automatically
effective, whereas an application by a
domestic, non-dominant carrier will be
automatically granted on the 31st day
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after its filing unless the Commission
notifies the applicant that the grant will
not be automatically effective. We seek
comment on this proposal. Like our
proposed uniform 10-day comment
period for all applications to grandfather
low-speed legacy services, we see no
reason to maintain disparate auto-grant
periods for such applications. Will this
streamlined auto-grant period for
carriers allow adequate time for the
Commission and other parties to review
their applications? Will the shorter autogrant period incent providers to more
rapidly resolve end-user concerns, if
any?
77. Is there a different auto-grant
period we should consider when
reviewing applications to grandfather
low-speed services, periods that are
either shorter or longer than the 25-day
interval we have proposed? Is there
reason to maintain disparate auto-grant
periods for dominant versus nondominant carriers rather than subject
both types of carriers to a uniform autogrant period as we have proposed to do?
Alternatively, what role should an
objection from a potential customer or
other interested party take in the
application for grandfathering? Should
such an objection result in an
application being taken off of
streamlined treatment?
78. In addition to potentially reducing
the auto-grant period for applications
seeking to grandfather low-speed
services, we seek comment on whether
to adopt an even more abbreviated autogrant period for grandfathered
discontinuance applications that receive
no comments during the specified
comment period. In conjunction with
our efforts to expedite the automatic
granting of these applications, we seek
comment on whether we should
establish a ‘‘shot-clock’’ applicable to
the time period within which the
Commission receives applications to
grandfather low-speed legacy services
and when the Commission releases the
Public Notice seeking comment on such
applications. Have carriers filing section
214 discontinuance applications
experienced seemingly unreasonable
delay between the time the Commission
receives their applications and when
they are placed on Public Notice?
79. Eligibility of Grandfathered
Services for Streamlined Processing. We
seek comment on the scope of services
to which streamlined processing would
apply. We propose, at a minimum, to
apply any streamlined discontinuance
process to grandfathered low-speed
TDM services at lower-than-DS1 speeds
(below 1.544 Mbps), as these are
services that are rapidly being replaced
with more advanced or higher-speed IP-
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based services. We seek comment on
whether this is an appropriate speed
threshold, or whether higher-speed
grandfathered services—e.g., any legacy
copper-based or other TDM services
below 10 Mbps or 25 Mbps or even
higher—should also qualify for this
more streamlined processing. Should
we limit our streamlined comment and
auto-grant periods to a narrower set of
circumstances than we propose? Should
we adopt a separate sets of auto-grant
periods for lower and higher speed
services? Are there other service
characteristics we should consider
besides speed in deciding which
applications may qualify for streamlined
comment and auto-grant periods?
80. Additional Steps. Beyond
condensing the comment and auto-grant
periods, we seek comment on any
additional steps we might take to further
streamline the review and approval
process for applications to grandfather
low-speed services. We specifically seek
comment on whether there are certain
circumstances under which applications
to grandfather low-speed legacy services
could be granted once the application is
accepted for filing without any period of
public comment or under which we
should dispense with requiring
applications entirely. Does the
Commission have authority under
section 214(b) to permit grants without
any period of public comment or to
determine that an application is not
necessary? Would limited forbearance
from the requirements of section 214 be
necessary to dispense with requiring an
application or to grant certain
applications without any period of
public comment, and if so, are the
criteria for forbearance met in this
instance? Would pursuing either of
these options harm existing or potential
customers, and if so, do those harms
outweigh the benefits of streamlining?
81. If the Commission grants certain
applications to grandfather low-speed
services without a period of public
comment, what criteria should
applications satisfy in order to qualify
for such a grant? For example, there may
be cases in which the carrier has not
sold the service to any new customer for
a particular period of time and only a
limited number of existing customers
continue to take the service, and we
seek comment on whether there is a
particular period of time and/or number
of customers that warrants automatic
grant without a comment period.
Should such grants be contingent on a
baseline showing, attestation, or
affirmative statement in a carrier’s
application that there are reasonable
alternatives to the service that is to be
grandfathered? If so, what type of
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certification or showing should be
required?
82. Government Users. Finally, we
seek comment on how we should take
into account the needs of federal, state,
local, and Tribal government users of
legacy services in deciding whether and
how best to streamline the process for
reviewing section 214 applications that
seek to grandfather low-speed services.
The National Telecommunications and
Information Administration (NTIA) has
stated that federal government agencies
face particular challenges as customers
of telecommunications services and are
different from many other customers
given the budget and procurement
challenges they face and ‘‘the missioncritical activities they perform for the
public benefit.’’ In its Petition, NTIA
asserts that government agencies must
make budgetary and technical plans far
in advance to convert or adapt their
networks, systems, and services to new
infrastructure. We agree with NTIA that
transitions from the provision of old
communications services to new ‘‘must
not disrupt or hamper the performance
of mission-critical activities, of which
safety of life, emergency response, and
national security are the most
prominent examples.’’ Further,
Assignment of National Security and
Emergency Preparedness
Communications Functions, Exec. Order
13,618, 3 CFR 273 (July 6, 2012), states
the following as policy of the United
States: ‘‘The Federal Government must
have the ability to communicate at all
times and under all circumstances to
carry out its most critical and time
sensitive missions. Survivable, resilient,
enduring, and effective
communications, both domestic and
international, are essential to enable the
executive branch to communicate
within itself and with: the legislative
and judicial branches; State, local,
territorial, and tribal governments;
private sector entities; and the public,
allies, and other nations. Such
communications must be possible under
all circumstances to ensure national
security, effectively manage
emergencies, and improve national
resilience. The views of all levels of
government, the private and nonprofit
sectors, and the public must inform the
development of national security and
emergency preparedness (NS/EP)
communications policies, programs, and
capabilities.’’ To the extent these
proposed rules accelerate retirement of
systems for national security emergency
preparedness (NS/EP) communication,
we seek comment on the impact to these
capabilities. In particular, we seek
comment on what will be the impact to
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NS/EP priority services such as the
Government Emergency
Telecommunications Service (GETS)
and the Telecommunications Service
Priority (TSP) system? How will
accelerating copper retirement impact
these policy goals? Should section 214
applications demonstrate how priority
services will continue to be provisioned
to government users? How will the
transition from the provision of old
services to new ones affect other
national security interests? How should
we take into account the needs of
potential government and Tribal
customers when considering whether
and how to streamline the comment
and/or auto-grant periods for
applications to grandfather legacy
services? Should applications affecting
government end users be eligible for any
streamlined process we adopt? If we
adopt special requirements in relation to
applications that may affect government
or Tribal users, how can we identify
such applications, given that
grandfathering affects only noncustomers of the service at issue?
83. NTIA suggests that the
Commission must ensure that carriers
provide information to federal agencies,
including the direction and pace of any
network changes, so that agencies are
able to plan and fund the service,
equipment, and systems upgrades
needed to maintain critical operations
without interruption. NTIA asks that the
Commission require carriers to state in
their section 214 discontinuance
applications: (1) whether and to what
extent they have discussed the proposed
network or service change with affected
federal customers; and (2) what actions
they have taken or what plans, if any,
they have made to ensure the continuity
of mission-critical agency
communications networks, systems, and
services.
84. We seek comment on this
proposal both in general and in the
context of our section 214 proposals
herein. How would such requirements
benefit federal customers, and would
such requirements benefit others in the
communications ecosystem? How could
we measure compliance with any such
requirements? Would such requirements
prove unduly burdensome on carriers
relative to any potential benefit for
government users? We seek comment on
whether the service agreements or
contracts into which carriers enter with
government entities could sufficiently
include provisions that address the
types of concerns NTIA raises generally.
With respect to grandfathering, would
prong (1) of NTIA’s proposed
certification have any relevance since it
is addressed to present customers, and
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how could carriers undertake the
consultation described in prong (2)? Are
there specific concerns applicable to
Tribal, state, or local government
customers? If so, would the NTIA
proposal address them? If not, what
additional or alternative steps would?
B. Applications To Discontinue
Previously Grandfathered Legacy Data
Services
85. We propose to streamline the
discontinuance process for any
application seeking authorization to
discontinue legacy data services that
have previously been grandfathered for
a period of no less than 180 days. We
propose to adopt a streamlined uniform
comment period of 10 days and an autogrant period of 31 days for both
dominant and non-dominant carriers.
We seek comment on these proposals
and on other potential alternatives. We
believe that section 214 provides us
ample authority to streamline the
process for reviewing and granting
applications to discontinue legacy data
services that have previously been
grandfathered for a period of at least 180
days. Do commenters agree with this
conclusion? Why or why not?
86. Should this proposed streamlined
process be restricted to only previously
grandfathered legacy data services
below a certain speed? Should
dominant and non-dominant carriers
continue to be subject to different
comment and auto-grant timeframes for
discontinuing legacy data services that
have previously been grandfathered, as
is currently the case? If so, what should
these timeframes be? We encourage
commenters to advance specific
alternative proposals they believe would
better address the Commission’s
objective to accelerate the deployment
of next-generation networks by
eliminating unnecessary delays in the
discontinuance process. To that end, are
there other steps we could take, beyond
condensing the comment and auto-grant
periods, which would help streamline
the review and authorization of
applications to discontinue legacy data
services that have previously been
grandfathered? Please explain.
87. We propose to require carriers
seeking this streamlined discontinuance
processing for legacy data services to
make a showing that they received
Commission authority to grandfather
such services at least 180 days
previously. Is the 180-day
grandfathering requirement too
restrictive? Should we consider a
shorter grandfathering timeframe?
Should we require any additional
showings to qualify for this streamlined
treatment? For example, should we
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require a statement identifying one or
more alternative comparable data
services available from the
discontinuing provider or a third party
provider at the same or higher speeds as
the service being discontinued? If so,
how should we define ‘‘comparable’’
service? Should we require that any
such ‘‘comparable’’ service be available
throughout the entire affected service
area?
88. We also propose to require only a
statement from the discontinuing carrier
demonstrating that it received
Commission authority to grandfather the
services at issue at least 180 days
previously. Is a statement sufficient, or
should some other showing be required?
If commenters believe we should
require more than a statement, what
type of showing should a carrier be
obligated to make? If we adopt a
requirement that carriers must
demonstrate the availability of one or
more alternative comparable data
services from the discontinuing
provider or a third party, would a
statement identifying such alternative
services be sufficient to satisfy this
requirement? For carriers seeking to rely
on a third-party service, what type of
showing would be necessary to
demonstrate the existence of alternative
data services? Would such a statement
suffice for this purpose?
89. Finally, we seek comment on
whether special consideration should be
given to applications seeking to
discontinue previously grandfathered
legacy data services to federal, state,
local, and Tribal government users for
the same reasons we address this
question in considering streamlining
grandfathered and legacy voice service
discontinuance applications. Should
providers be required to make some
additional showing beyond what we
have proposed when seeking to
discontinue previously grandfathered
legacy data services to government
users? If so, with what additional
conditions should they be required to
comply and why?
C. Clarifying Treatment Under Section
214(a) of Carrier-Customers’ End Users
90. We seek comment on reversing the
Commission’s 2015 ‘‘clarification’’ of
section 214(a) that substantially
expanded the scope of end users that a
carrier must consider in determining
whether it is required to obtain section
214 discontinuance authority. In the
2015 Technology Transitions Order, the
Commission ‘‘provided guidance and
clarification’’ that section 214(a) of the
Act applies not only to a carrier’s own
retail customers, but also to the retail
end-user customers of that carrier’s
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wholesale carrier-customers. We seek
comment on our proposal to reverse the
2015 interpretation and, going forward,
interpret section 214(a) to require a
carrier to take into account only its own
retail end users when evaluating
whether the carrier will ‘‘discontinue,
reduce, or impair service to a
community, or part of a community.’’
91. We seek comment on the practical
effect of the 2015 interpretation. What
benefits flow to the retail end-user
customers of the carrier’s wholesale
carrier customers as a result of that
interpretation? Does it make sense to
take away those benefits? Does it make
sense to maintain a regulatory obligation
that requires a carrier, most often an
incumbent LEC, to obtain information
about third parties, i.e., its carriercustomer’s retail end users, with whom
it generally has no relationship, before
it can execute its own business plans to
discontinue its service? What can the
upstream carrier be expected to know
about who the end-user customers of its
carrier-customers are and how the
discontinuance will affect them? Does
the current application of the
requirement impose undue compliance
costs and burdens on a discontinuing
carrier that harm the public by delaying
the transition to newer, more
technologically advanced services? Or,
are those costs reasonable in light of the
potential harm to end-user customers?
Have there been other effects on the
market for legacy services and on the
transition to IP services that we should
consider?
92. We also seek comment on how
carrier-customers’ discontinuance
obligations should inform our
interpretation. What weight should we
give to the fact that a carrier-customer
is itself obligated to file a
discontinuance application under
section 214(a) of the Act and section
63.71 of the Commission’s rules if it
discontinues, reduces, or impairs
service as a result of the loss of a
wholesale input from an upstream
carrier? Can we find that the objectives
of section 214(a) are met because the
carrier-customer itself is subject to
section 214(a)’s requirement to obtain
Commission approval if a change in the
inputs relied on by the carrier-customer
results in a discontinuance, reduction,
or impairment of services to the carriercustomer’s retail end users? Or, are
there situations in which end-user
customers would be inadequately
protected by such an interpretation? Do
the contractual and business
relationships between upstream carriers
and their carrier-customers provide
additional safeguards to retail end
users?
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93. We also seek comment on the
relationship between sections 214(a)
and 251(c)(5) of the Act. When section
214(a) was enacted during World War II,
‘‘one of Congress’s main concerns was
that [domestic telegraph] mergers might
result in a loss or impairment of service
during this war time period.’’ By
contrast, 53 years later, Congress revised
the Act ‘‘to promote competition and
reduce regulation . . . and encourage
the rapid deployment of new
telecommunications technologies.’’
Congress enacted section 251(c)(5) of
the Act to require incumbent LECs to
‘‘provide reasonable public notice of
changes in the information necessary for
the transmission and routing of services
using that local exchange carrier’s
facilities or networks, as well as of any
other changes that would affect the
interoperability of those facilities and
networks.’’ The Commission’s
regulations implementing section
251(c)(5), require, among other things,
that an incumbent LEC ‘‘must provide
public notice regarding any network
change that [w]ill affect a competing
service provider’s performance or ability
to provide service.’’ In enacting section
251(c)(5), did Congress signal its intent
that incumbent LECs need only provide
notice, not obtain approval, when
making changes to wholesale inputs
relied upon by competing carriers? At
the time of the 1996 Act, the
Commission interpreted its section
214(a) discontinuance authority not to
apply to wholesale customers. Did that
interpretation have any bearing on
Congress’s intent when enacting section
251(c)(5)? How should we reconcile the
Congressional mandates in sections
214(a) and 251(c)(5) of the Act to best
eliminate regulatory barriers to the
deployment of next-generation networks
and services, avoid unnecessary capital
expenditure on legacy services, and
protect consumers and the public
interest? Alternatively, was the
Commission’s statutory interpretation in
the 2015 Technology Transitions Order
correct? Are there other interpretations
of the interaction between these two
provisions that would be more
consistent with Congressional intent? If
so, what are they?
94. Finally, we seek comment on
whether the Commission correctly
interpreted the precedent upon which it
relied to support its expansive 2015
clarification. Prior to the 2015
Technology Transitions Order, it
appears that the Commission had held
that discontinuances to wholesale
purchasers were not cognizable under
section 214(a). The 2015 Technology
Transitions Order acknowledges that
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distinction, stating in a footnote that
‘‘[t]he Commission will . . . continue to
distinguish discontinuance of service
that will affect service to retail
customers from discontinuances that
affect only the carrier-customer itself.’’
Relying on BellSouth Telephone,
however, the Commission adopted the
view that upstream carriers have
responsibility for carrier-customers’
end-user customers under section
214(a). Did the Commission correctly
interpret BellSouth Telephone,
particularly in light of the facts of that
case? Did the Commission incorrectly
read BellSouth Telephone to protect the
business models of certain downstream
retail carriers, regardless of the
availability of the same or comparable
alternatives in the community? All of
the other cases cited in the 2015
Technology Transitions Order found
that section 214(a) did not apply.
Accordingly, did the Commission
properly interpret and rely on those
cases? Considering that all but one of
the cases predated the adoption of the
1996 Act and its specific protections for
wholesale customers, including section
251(c)(5), what continuing probative
value do the cases have? Indeed, the
only Commission precedent cited in the
2015 Technology Transitions Order that
postdated the 1996 Act did not
explicitly consider the applicability of
section 251(c)(5). Did the Commission
grant to carrier-customers in 2015 rights
beyond Congress’s intent in the 1996
Act in an attempt to protect carriercustomers’ end users, even though those
end users have the benefit of the section
214(a) discontinuance process from
their own provider? What is the proper
interplay between sections 251 and 214
in this context?
D. Other Part 63 Proposals
95. Further Streamlining of 214(a)
Discontinuances. In addition to the
proposals discussed above, we seek
comment on methods to streamline
section 214(a) applications more
generally. Specifically, we seek
comment on whether it would be
appropriate for the Commission to
conclude that section 214(a)
discontinuances will not adversely
affect the present or future public
convenience and necessity, provided
that fiber, IP-based, or wireless services
are available to the affected community.
What type of showing would be
required on the part of discontinuing
carriers to demonstrate the existence of
alternative services? What types of fiber,
IP-based, or wireless services would
constitute acceptable alternatives, and
under what circumstances? Would a
demonstration regarding the availability
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of third-party services satisfy this kind
of test, or would only services offered by
the discontinuing carrier suffice?
96. We also seek comment on the best
approach for granting streamlined
treatment to these types of
discontinuances. In circumstances
where a discontinuing carrier’s service
overlaps with an alternative fiber, IPbased, or wireless service, should we
require a section 214 discontinuance
application? If not, should we either
grant limited blanket discontinuance
authority or forbear on a limited basis
from section 214? If we require an
application, would a grant of the section
214 application upon acceptance for
filing be appropriate or would allowing
for public notice and comment be
necessary to satisfy the requirements of
section 214(a)? If we maintain a
comment period, should we reduce the
comment and automatic grant
timeframe? As another alternative,
should we instead require carriers to file
only a notice of discontinuance
accompanied by proof that fiber, IPbased, or wireless alternatives are
available to the affected community, in
lieu of a full application for approval?
If so, what proof would suffice, and how
should the Commission review that
filing?
97. Section 63.71(g) Applications to
Discontinue Service With No Customers.
We specifically propose to maintain but
modify the provision adopted in the
2016 Technology Transitions Order for
streamlined treatment of section 214
discontinuance applications for all
services that have not had customers for
a period of six months prior to
submission of the application. Under
this rule, which was based on a
proposal submitted to the Commission
by AT&T, carriers may certify to the
Commission that the service to be
discontinued is ‘‘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,’’ and the application will
be granted automatically on the 31st day
after filing, unless the Commission has
notified the applicant that the grant will
not be automatically effective. We note
that at least one carrier representative
has recently endorsed this provision of
the rules adopted in the 2016
Technology Transitions Order as an
effective tool for reducing barriers to
next generation infrastructure
deployment. We propose to shorten the
timeframe during which a carrier must
demonstrate that it has had no
customers for a given service, from 180
days to 60 days, and seek comment on
this modification. Because this
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proposed rule applies only to services
without customers, consumer harm
from further streamlining these kinds of
discontinuance applications appears
unlikely. We seek comment on retaining
and modifying section 63.71(g) as
proposed, and on any other additions or
amendments to the rule, such as
shortening the time in which the
application is automatically granted,
that may further our goal of removing
regulatory barriers to broadband
investment. Would a different
timeframe during which a carrier must
demonstrate that it has had no
customers be more appropriate to
balance the interests of discontinuing
carriers and potential consumers of
these services?
98. Section 63.71(i) Auto-grants for
Competitive LECs Upon Copper
Retirement. We seek comment on
revising section 63.71(i), which was
adopted in the 2016 Technology
Transitions Order to provide for
automatic discontinuance authority,
subject to certain conditions, for
competitive LECs that must discontinue
service on a date certain due to an
incumbent LEC’s effective copper
retirement. Specifically, to the extent we
eliminate section 51.332, we seek
comment on revising section 63.71(i) to
include as a condition that the relevant
network change notice provides no
more than six months’ notice. We also
seek comment on how, if at all, we
should modify section 63.71(i) to further
harmonize it with any revisions we
adopt herein to the incumbent LEC
copper retirement process under Part 51
of our rules. We seek to ensure our rules
take into account situations, where,
through no fault of its own, a
competitive LEC is unable to comply
with our section 214(a) discontinuance
requirements as a result of an
incumbent LEC’s transition to a nextgeneration network. To the extent we
reduce the waiting period for
implementing planned copper
retirements, would this eliminate the
need for or necessitate any changes to
section 63.71(i)?
99. 2016 Technology Transitions
Order Revisions to Sections 63.71(a)–(b).
We seek comment on whether we
should retain, modify, or eliminate the
changes made by the 2016 Technology
Transitions Order to section 63.71(a)
and the introduction of new section
63.71(b). The 2016 Technology
Transitions Order modified section
63.71(a) by requiring 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. It
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also modified section 63.71(a) to clearly
permit carriers to provide email notice
to customers of discontinuance
applications, and it established
requirements in section 63.71(b) that
carriers must meet when using email to
satisfy the written notice requirements.
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V. Initial Regulatory Flexibility
Analysis
100. As required by the Regulatory
Flexibility Act (RFA), the Commission
has prepared this present Initial
Regulatory Flexibility Analysis (IRFA)
of the possible significant economic
impact on small entities by the policies
and rules proposed in this NPRM.
Written public comments are requested
on this IRFA. Comments must be
identified as responses to the IRFA and
must be filed by the deadlines for
comments provided in paragraph 133 of
this NPRM. The Commission will send
a copy of this NPRM, including this
IRFA, to the Chief Counsel for Advocacy
of the Small Business Administration
(SBA).
A. Need for, and Objectives of, the
Proposed Rules
101. The NPRM proposes new steps
designed to accelerate the deployment
of next-generation networks and
services by removing barriers to
infrastructure investment. Access to
high speed broadband creates economic
opportunity, enabling entrepreneurs to
create businesses, immediately reach
customers throughout the world and
revolutionize entire industries. This
proceeding aims to better enable
broadband providers to build, maintain,
and upgrade their networks, which will
spur job growth and ultimately lead to
more affordable and accessible Internet
access and other broadband services for
all Americans. Today’s action proposes
to remove regulatory barriers to
infrastructure at the state and local
level, proposes changes to speed the
transition from copper networks and
legacy services to next-generation
networks and services dependent on
fiber, and proposes to reform
Commission regulations that are raising
costs and slowing broadband
deployment rather than facilitating it.
Thus, the Commission seeks comment
on a variety of issues in the following
areas.
102. First, the NPRM proposes and
seeks comment on changes to the
Commission’s pole attachment rules
that would: (1) Adopt a streamlined
timeframe for gaining access to utility
poles; (2) reduce charges paid by
attachers to utilities for work done to
make a pole ready for new attachments;
(3) codify the elimination of certain
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capital costs from the formulas used to
confirm the reasonableness of rates
charged by utilities for pole attachments
by telecommunications and cable
providers; (4) establish a 180-day shot
clock for Commission consideration of
pole attachment complaints; (5) adopt a
formula for computing the maximum
pole attachment rate that may be
imposed on an incumbent LEC, and (6)
adopt rules that would interpret the
interconnection rules for
telecommunications carriers in section
251 of the Act and the pole attachment
rules of section 224 in a manner that
allows for competitive LECs to demand
access to incumbent LEC poles and vice
versa.
103. Second, the NPRM seeks
comment on changing the Commission’s
Part 51 copper retirement rules to
expedite the copper retirement process
and reduce associated regulatory
burdens to facilitate more rapid
deployment of next-generation
networks, as well a proposal and other
potential changes to streamline and/or
eliminate provisions of the more
generally applicable network change
notification rules. It also seeks comment
on eliminating section 68.110(b) of the
Commission’s rules.
104. Third, the NPRM seeks comment
on proposals to streamline the section
214(a) discontinuance process by
reducing the comment and automaticgrant timeframes for two specific
categories of discontinuance
applications: ‘‘Grandfathered’’ lowspeed legacy services for existing
customers, and legacy data services that
have been grandfathered for a period of
no less than 180 days. Fourth, the
NPRM seeks comment on reversing the
Commission’s 2015 ‘‘carrier-customer’s
retail end user’’ interpretation of the
scope of section 214(a) discontinuance
authority.
105. Fifth, the NPRM seeks comment
on other section 63.71 changes to
further streamline the section 214 (a)
discontinuance process for carriers.
B. Legal Basis
106. The proposed action is
authorized under sections 1, 2, 4(i), 214,
224, 251, and 253 of the
Communications Act of 1934, as
amended; 47 U.S.C. 151, 152, 154(i),
214, 224, 251, 253.
C. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
107. The RFA directs agencies to
provide a description and, where
feasible, an estimate of the number of
small entities that may be affected by
the proposed rules and by the rule
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revisions on which the NPRM seeks
comment, 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. A ‘‘small-business
concern’’ is one which: (1) Is
independently owned and operated; (2)
is not dominant in its field of operation;
and (3) satisfies any additional criteria
established by the SBA.
108. The majority of our proposals
and the changes on which we seek
comment in the NPRM will affect
obligations on incumbent LECs and, in
some cases, competitive LECs. Certain
pole attachment proposals also would
affect obligations on utilities that own
poles, telecommunications carriers and
cable television systems that seek to
attach equipment to utility poles, and
other LECs that own poles. The
definitions of utility and
telecommunications carrier for purposes
of our pole attachment rules are found
in 47 U.S.C. 224(a)(1) and (a)(5),
respectively. Our actions, over time,
may affect small entities that are not
easily categorized at present. Other
entities, however, that choose to object
to network change notifications for
copper retirement under the changes on
which we seek comment and section
214 discontinuance applications may be
economically impacted by the proposals
in this NPRM.
109. Small Businesses, Small
Organizations, and Small Governmental
Jurisdictions. Our action may, over time,
affect small entities that are not easily
categorized at present. We therefore
describe here, at the outset, three
comprehensive, statutory small entity
size standards that encompass entities
that could be directly affected by the
new and revised rules adopted today.
According to the most currently
available SBA data, there are 28.8
million small businesses in the U.S.,
which represent 99.9% of all businesses
in the United States. Additionally, a
‘‘small organization’’ is generally ‘‘any
not-for-profit enterprise which is
independently owned and operated and
is not dominant in its field.’’
Nationwide, as of 2007, there were
approximately 1,621, 215 small
organizations. Finally, the term ‘‘small
governmental jurisdiction’’ is defined
generally as ‘‘governments of cities,
counties, towns, townships, villages,
school districts, or special districts, with
a population of less than fifty
thousand.’’ Census Bureau data for 2012
indicate that there were 89,476
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governmental jurisdictions in the
United States. We estimate that, of this
total, as many as 88,718 entities may
qualify as ‘‘small governmental
jurisdictions.’’ Thus, we estimate that
most governmental jurisdictions are
small.
110. Wired Telecommunications
Carriers. The U.S. Census Bureau
defines this industry as ‘‘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 communications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies. Establishments in this
industry use the wired
telecommunications network facilities
that they operate to provide a variety of
services, such as wired telephony
services, including VoIP services, wired
(cable) audio and video programming
distribution, and wired broadband
internet services. By exception,
establishments providing satellite
television distribution services using
facilities and infrastructure that they
operate are included in this industry.’’
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. Census data
for 2012 shows that there were 3,117
firms that operated that year. Of this
total, 3,083 operated with fewer than
1,000 employees. Thus, under this size
standard, the majority of firms in this
industry can be considered small.
111. 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 NAICS Code category is for
Wired Telecommunications Carriers, as
defined in paragraph 12 of this IRFA.
Under that size standard, such a
business is small if it has 1,500 or fewer
employees. Census data for 2012 show
that there were 3,117 firms that operated
that year. Of this total, 3,083 operated
with fewer than 1,000 employees. The
Commission therefore estimates that
most providers of local exchange carrier
service are small entities that may be
affected by the rules adopted.
112. 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 NAICS Code category is
Wired Telecommunications Carriers as
defined in paragraph 13 of this IRFA.
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Under that size standard, such a
business is small if it has 1,500 or fewer
employees. According to Commission
data, 3,117 firms operated in that year.
Of this total, 3,083 operated with fewer
than 1,000 employees. Consequently,
the Commission estimates that most
providers of incumbent local exchange
service are small businesses that may be
affected by the rules and policies
adopted. One thousand three hundred
and seven (1,307) Incumbent Local
Exchange Carriers reported that they
were incumbent local exchange service
providers. Of this total, an estimated
1,006 have 1,500 or fewer employees.
113. 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 NAICS Code
category is Wired Telecommunications
Carriers, as defined in paragraph 12 of
this IRFA. Under that size standard,
such a business is small if it has 1,500
or fewer employees. U.S. Census data
for 2012 indicate that 3,117 firms
operated during that year. Of that
number, 3,083 operated with fewer than
1,000 employees. Based on this data, the
Commission concludes that the majority
of Competitive LECs, CAPs, SharedTenant Service Providers, and Other
Local Service Providers are small
entities. 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. 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 this total, 70 have 1,500 or fewer
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 the
adopted rules.
114. Interexchange Carriers (IXCs).
Neither the Commission nor the SBA
has developed a definition for
Interexchange Carriers. The closest
NAICS Code category is Wired
Telecommunications Carriers as defined
in paragraph 13 of this IRFA. The
applicable size standard under SBA
rules is that such a business is small if
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it has 1,500 or fewer employees.
According to Commission data, 359
companies reported that their primary
telecommunications service activity was
the provision of interexchange services.
Of this total, 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
interexchange service providers are
small entities that may be affected by
rules adopted.
115. 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 NAICS Code category is for
Wired Telecommunications Carriers, as
defined in paragraph 13 of this IRFA.
Under that size standard, such a
business is small if it has 1,500 or fewer
employees. Census data for 2012 shows
that there were 3,117 firms that operated
that year. Of this total, 3,083 operated
with fewer than 1,000 employees. Thus,
under this category and the associated
small business size standard, the
majority of Other Toll Carriers can be
considered small. 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. Consequently, the
Commission estimates that most Other
Toll Carriers that may be affected by our
rules are small.
116. Wireless Telecommunications
Carriers (except Satellite). This industry
comprises establishments engaged in
operating and maintaining switching
and transmission facilities to provide
communications via the airwaves, such
as cellular services, paging services,
wireless internet access, and wireless
video services. The appropriate size
standard under SBA rules is that such
a business is small if it has 1,500 or
fewer employees. For this industry,
Census data for 2012 show that there
were 967 firms that operated for the
entire year. Of this total, 955 firms had
fewer than 1,000 employees. Thus
under this category and the associated
size standard, the Commission estimates
that the majority of wireless
telecommunications carriers (except
satellite) are small entities. Similarly,
according to internally developed
Commission data, 413 carriers reported
that they were engaged in the provision
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of wireless telephony, including cellular
service, Personal Communications
Service (PCS), and Specialized Mobile
Radio (SMR) services. Of this total, an
estimated 261 have 1,500 or fewer
employees. Consequently, the
Commission estimates that
approximately half of these firms can be
considered small. Thus, using available
data, we estimate that the majority of
wireless firms can be considered small.
117. Cable Companies and Systems
(Rate Regulation). The Commission has
developed its own small business size
standards for the purpose of cable rate
regulation. Under the Commission’s
rules, a ‘‘small cable company’’ is one
serving 400,000 or fewer subscribers
nationwide. Industry data indicate that
there are currently 4,600 active cable
systems in the United States. Of this
total, all but nine cable operators
nationwide are small under the 400,000subscriber size standard. In addition,
under the Commission’s rate regulation
rules, a ‘‘small system’’ is a cable system
serving 15,000 or fewer subscribers.
Current Commission records show 4,600
cable systems nationwide. Of this total,
3,900 cable systems have fewer than
15,000 subscribers, and 700 systems
have 15,000 or more subscribers, based
on the same records. Thus, under this
standard as well, we estimate that most
cable systems are small entities.
118. Cable System Operators
(Telecom Act Standard). The
Communications Act of 1934, as
amended, also contains a size standard
for small cable system operators, which
is ‘‘a cable operator that, directly or
through an affiliate, serves in the
aggregate fewer than one percent of all
subscribers in the United States and is
not affiliated with any entity or entities
whose gross annual revenues in the
aggregate exceed $250,000,000 are
approximately 52,403,705 cable video
subscribers in the United States today.
Accordingly, an operator serving fewer
than 524,037 subscribers shall be
deemed a small operator if its annual
revenues, when combined with the total
annual revenues of all its affiliates, do
not exceed $250 million in the
aggregate. Based on available data, we
find that all but nine incumbent cable
operators are small entities under this
size standard. We note that the
Commission neither requests nor
collects information on whether cable
system operators are affiliated with
entities whose gross annual revenues
exceed $250 million. Although it seems
certain that some of these cable system
operators are affiliated with entities
whose gross annual revenues exceed
$250,000,000, we are unable at this time
to estimate with greater precision the
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number of cable system operators that
would qualify as small cable operators
under the definition in the
Communications Act.
119. All Other Telecommunications.
‘‘All Other Telecommunications’’ is
defined as follows: ‘‘This U.S. industry
is comprised of establishments that are
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 ‘‘All
Other Telecommunications,’’ which
consists of all such firms with gross
annual receipts of $32.5 million or less.
For this category, Census Bureau data
for 2012 show that there were 1,442
firms that operated for the entire year.
Of those firms, a total of 1,400 had
annual receipts less than $25 million.
Consequently, we conclude that the
majority of All Other
Telecommunications firms can be
considered small.
120. Electric Power Generation,
Transmission and Distribution. The
Census Bureau defines this category as
follows: ‘‘This industry group comprises
establishments primarily engaged in
generating, transmitting, and/or
distributing electric power.
Establishments in this industry group
may perform one or more of the
following activities: (1) Operate
generation facilities that produce
electric energy; (2) operate transmission
systems that convey the electricity from
the generation facility to the distribution
system; and (3) operate distribution
systems that convey electric power
received from the generation facility or
the transmission system to the final
consumer.’’ This category includes
electric power distribution,
hydroelectric power generation, fossil
fuel power generation, nuclear electric
power generation, solar power
generation, and wind power generation.
The SBA has developed a small
business size standard for firms in this
category based on the number of
employees working in a given business.
According to Census Bureau data for
2012, there were 1,742 firms in this
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category that operated for the entire
year.
121. Natural Gas Distribution. This
economic census category comprises:
‘‘(1) establishments primarily engaged
in operating gas distribution systems
(e.g., mains, meters); (2) establishments
known as gas marketers that buy gas
from the well and sell it to a distribution
system; (3) establishments known as gas
brokers or agents that arrange the sale of
gas over gas distribution systems
operated by others; and (4)
establishments primarily engaged in
transmitting and distributing gas to final
consumers.’’ The SBA has developed a
small business size standard for this
industry, which is all such firms having
1,000 or fewer employees. According to
Census Bureau data for 2012, there were
422 firms in this category that operated
for the entire year. Of this total, 399
firms had employment of fewer than
1,000 employees, 23 firms had
employment of 1,000 employees or
more, and 37 firms were not
operational. Thus, the majority of firms
in this category can be considered small.
122. Water Supply and Irrigation
Systems. This economic census category
‘‘comprises establishments primarily
engaged in operating water treatment
plants and/or operating water supply
systems. The water supply system may
include pumping stations, aqueducts,
and/or distribution mains. The water
may be used for drinking, irrigation, or
other uses.’’ The SBA has developed a
small business size standard for this
industry, which is all such firms having
$27.5 million or less in annual receipts.
According to Census Bureau data for
2012, there were 3,261 firms in this
category that operated for the entire
year. Of this total, 3,035 firms had
annual sales of less than $25 million.
Thus, the majority of firms in this
category can be considered small.
D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
123. The NPRM proposes and/or seeks
comment on a number of rule changes
that will affect reporting, recordkeeping,
and other compliance requirements. We
expect the rule revisions proposed or
suggested for potential change in the
NPRM to reduce reporting,
recordkeeping, and other compliance
requirements. The rule revisions taken
as a whole should have a beneficial
reporting, recordkeeping, or compliance
impact on small entities because all
carriers will be subject to fewer such
burdens. Each of these changes is
described below.
124. The NPRM proposes the
following changes to the current pole
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attachment timeline: (1) Requiring
utilities to make a decision on
completed pole attachment applications
within a timeframe shorter than the
current 45 days of receipt; (2) requiring
utilities to provide an estimate of makeready costs to new attachers within a
timeframe that is shorter than the
current 14 days; and (3) establishing a
time period for existing attachers to
complete make-ready work to their
attachments in the communications
space of a pole that is shorter than the
current 60 days. The NPRM also
proposes to limit a new attacher’s
liability for make-ready costs to those
costs actually caused by the new
attachment, to require utilities to
proportionately share in the cost of a
new attachment for which they receive
a direct benefit, and to require utilities
that perform make-ready work to make
available to new attachers a schedule of
common make-ready charges. With
regard to pole attachment rates, the
NPRM proposes to codify the
elimination from the
telecommunications and cable rate
formulas those capital costs that already
have been paid to the utility via makeready charges, to establish a rebuttable
presumption that incumbent LECs are
similarly situated to other attachers on
a pole, and to establish a rebuttable pole
attachment formula for computing the
maximum pole attachment rate to be
charged to incumbent LECs. Further, the
NPRM proposes a 180-day shot clock for
Commission resolution of pole access
complaints, which would include a
mandatory pre-complaint meeting
between the parties in order to resolve
procedural issues and deadlines.
Finally, the NPRM proposes to allow
incumbent LECs to request
nondiscriminatory pole access from
other LECs that own or control utility
poles. Should the Commission adopt
any of these proposals, such actions
could result in increased, reduced, or
otherwise altered reporting,
recordkeeping, or other compliance
requirements for utilities and attaching
entities. The NPRM also seeks comment
on eliminating some or all of the
changes to the copper retirement
process adopted by the Commission in
the 2015 Technology Transitions Order,
including the rules that doubled the
time period during which an incumbent
LEC must wait to implement the
planned copper retirement after the
Commission’s publication of public
notice from 90 days to 180 days,
required direct notice to retail
customers, and expanded the types of
information that must be disclosed. The
NPRM also proposes eliminating the
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rule preventing incumbent LECs from
disclosing information about planned
network changes with certain entities
until public notice has been given of
those planned changes, and also seeks
comment on eliminating section
68.110(b), which requires that a carrier
notify its customers when changes to its
facilities, equipment, operations, or
procedures might render customers’
terminal equipment incompatible with
those facilities, equipment, operations,
or procedures. In addition, the NPRM
proposes targeted measures and/or seeks
comment on potential rule changes to
shorten timeframes and eliminate
unnecessary regulatory process
encumbrances that carriers face to
maintain legacy services they seek to
discontinue.
E. Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
125. The RFA requires an agency to
describe any significant 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 or reporting requirements
under the rule for 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 small entities.
126. The Commission proposes to
adopt specific changes to its pole
attachment timeline that would provide
a predictable, timely process for parties
to obtain pole attachments, while
maintaining the interests of utilities and
existing attachers in preserving safety,
reliability, and sound engineering. In
consideration of the new timeline, the
Commission seeks comments on
alternatives that might help smaller
utilities and attachers: (1) Whether it
would be reasonable to cap at 45 days
a utility’s review of a large number of
pole attachment applications; (2)
whether it is reasonable to combine the
survey, estimate, and acceptance stages
of the current Commission pole
attachment timeline into one step with
a condensed timeframe; and (3) whether
30 days is long enough for existing
attachers to complete routine makeready work. The Commission also seeks
alternatives to its current make-ready
process in the areas of: (1) The
expanded use of utility-approved
contractors to perform make-ready
work; (2) allowing existing attachers to
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observe the make-ready work being
performed by new attachers and their
contractors; (3) requiring utilities and
attachers to agree on the specific
contractors to perform make-ready work
on their equipment; (4) allowing new
attachers to perform routine make-ready
work on all pole equipment without
involving existing attachers; and (5)
establishing pole attachment processes
modeled after ‘‘one-touch, make-ready’’,
‘‘right-touch, make-ready’’, and other
approaches. The Commission also seeks
alternatives to its current complaint
process as the best way to keep makeready costs just and reasonable, asks
whether a bonus payment or multiplier
could be used to incent existing
attachers to meet their make-ready
timelines, asks about ways to incent
private negotiations between new and
existing attachers to govern the makeready process (e.g., allowing a new
attacher to select a default contractor to
perform make-ready, penalizing existing
attachers that fail to meet make-ready
deadlines), asks whether utilities should
be required to make information
available online regarding the cost,
location, and availability of poles and
conduits, asks whether a flat per-pole
make-ready fee would be preferable to
the current method of allocating makeready costs, asks whether utilities
should be required to reimburse
attachers for the costs of new
attachments that subsequently benefit
utilities (which might benefit new
entrants, especially small entities with
limited resources), asks whether the
Commission should eliminate all capital
costs from its pole attachment rate
formulas, asks about the appropriate
pole attachment rate for attachers
providing commingled cable and
telecommunications services, and asks
whether we should adopt a shot clock
for all pole attachment complaints (not
just those related to pole access).
127. The NPRM also seeks comment
on the need to revise the requirements
of our network change disclosure rules
applicable to copper retirements to
reduce barriers to investment in nextgeneration technologies and promote
broadband deployment. To that end, the
NPRM seeks comment on eliminating
section 51.332 in its entirety and
returning to a more streamlined version
of the pre-2015 Technology Transitions
Order requirements for handling copper
retirements subject to section 251(c)(5)
of the Act. Specifically, the NPRM seeks
comment on reinstating the less
burdensome requirements under section
51.333(c) of the Commission’s rules
applicable to copper retirements prior to
adoption of the 2015 Technology
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Transitions Order. In the alternative, the
NPRM seeks comment on eliminating all
differences between copper retirement
and other network change notice
requirements, rendering copper
retirement changes subject to the same
long-term or, where applicable, shortterm network change notice
requirements as all other types of
network changes subject to section
251(c)(5). As a third alternative, the
NPRM seeks comment on retaining but
amending section 51.332 to streamline
the process. Specifically, the NPRM
seeks comment on revising section
51.332 to: (1) Require an incumbent
LECs to serve its notice only to
telephone exchange service providers
that directly interconnect with the
incumbent LEC’s network, rather than
‘‘each entity within the affected service
area that directly interconnects with the
incumbent LEC’s network’’; (2) reduce
the waiting period to 90 days from 180
days after the Commission releases its
public notice before the incumbent LEC
may implement the planned copper
retirement; (3) provide greater flexibility
regarding the time in which an
incumbent LEC must file the requisite
certification; and (4) reduce the waiting
period to 30 days where the copper
facilities being retired are no longer
being used to serve any customers in the
affected service area; and to potentially
reinstate the objection procedures
applicable under the rules in place prior
to the 2015 Technology Transitions
Order if section 51.332 is eliminated.
The NPRM also proposes to eliminate
the prohibition on incumbent LECs
disclosing information about planned
network changes prior to giving public
notice of those planned changes. And
the NPRM seeks comment on
eliminating or modifying section
68.110(b), which requires that a carrier
notify its customers when changes to its
facilities, equipment, operations, or
procedures might render customers’
terminal equipment incompatible with
those facilities, equipment, operations,
or procedures.
128. The NPRM seeks comment on
proposals to streamline the section
214(a) discontinuance process for
applications that seek authorization to
‘‘grandfather’’ low-speed legacy
services, such as TDM services at lowerthan-DS1 speeds (below 1.544 Mbps),
for existing customers. Specifically, the
proposals seek to reduce the public
comment period to 10 days for
applications from both dominant and
non-dominant carriers seeking to
grandfather legacy low-speed services.
The proposals also seek to revise the
Commission’s discontinuance rules to
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provide for automatic grant of
applications by both dominant and nondominant carriers to grandfather lowspeed legacy services on the 25th day
after the Commission has released a
public notice seeking comment on an
application, unless the Commission
notifies the applicant that such a grant
will not be automatically effective.
129. The NPRM seeks comment on
proposals to streamline the
discontinuance process for any
application seeking authorization to
discontinue legacy data services that
have been grandfathered for a period of
no less than 180 days prior to the filing
of the application. The proposals seek to
adopt a uniform public comment period
of 10 days for all applications seeking to
discontinue legacy data services that
have previously been grandfathered,
regardless of whether the carrier filing
the application is a dominant or nondominant carrier. Additionally, the
proposals seek to provide for automatic
grant of these applications on the 31st
day after filing, unless the Commission
notifies the applicant that such a grant
will not be automatically effective.
130. The NPRM seeks comment on
revising the discontinuance rule
pertaining to discontinuance
applications filed in response to a
copper retirement notice to reflect any
subsequent changes to the copper
retirement rules and any other
streamlining measures that could be
taken.
131. The NPRM seeks comment on
reversing the Commission’s 2015
‘‘clarification’’ of section 214(a) that
substantially expanded the scope of end
users that a carrier must consider in
determining whether it is required to
obtain section 214 discontinuance
authority, and, going forward, interpret
section 214(a) to require a carrier to take
into account only its own end users
when evaluating whether the carrier
will ‘‘discontinue, reduce, or impair
service to a community, or part of a
community.’’
132. The Commission believes that its
proposals and potential rule changes
upon which the NPRM seeks comment
will benefit all carriers, regardless of
size. The proposals and potential rule
changes would further the goal of
reducing regulatory burdens, thus
facilitating investment in nextgeneration networks and promoting
broadband deployment. We anticipate
that a more modernized regulatory
scheme will encourage carriers to invest
in and deploy even more advanced
technologies as they evolve.
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F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rule
133. None.
VI. Procedural Matters
A. Ex Parte Rules
134. The proceeding related to this
NPRM shall be treated as a ‘‘permit-butdisclose’’ proceeding in accordance
with the Commission’s ex parte rules.
Persons making ex parte presentations
must file a copy of any written
presentation or a memorandum
summarizing any oral presentation
within two business days after the
presentation (unless a different deadline
applicable to the Sunshine period
applies). Persons making oral ex parte
presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with Rule
1.1206(b). In proceedings governed by
Rule 1.49(f) or for which the
Commission has made available a
method of electronic filing, written ex
parte presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Participants
in this proceeding should familiarize
themselves with the Commission’s ex
parte rules.
B. Initial Regulatory Flexibility Analysis
135. Pursuant to the Regulatory
Flexibility Act (RFA), the Commission
has prepared an Initial Regulatory
Flexibility Analysis (IRFA) of the
possible significant economic impact on
small entities of the policies and actions
considered in this NPRM. The text of
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the IRFA is set forth above. Written
public comments are requested on this
IRFA. Comments must be identified as
responses to the IRFA and must be filed
by the deadlines for comments on the
NPRM. The Commission’s Consumer
and Governmental Affairs Bureau,
Reference Information Center, will send
a copy of the NPRM, including the
IRFA, to the Chief Counsel for Advocacy
of the Small Business Administration.
C. Paperwork Reduction Act
136. This document contains
proposed new and modified information
collection requirements. The
Commission, as part of its continuing
effort to reduce paperwork burdens,
invites the general public and the Office
of Management and Budget to comment
on the information collection
requirements contained in this
document, as required by the Paperwork
Reduction Act of 1995, Public Law 104–
13. In addition, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4), we seek specific comment on
how we might further reduce the
information collection burden for small
business concerns with fewer than 25
employees.
VII. Ordering Clauses
137. Accordingly, it is ordered that,
pursuant to the authority contained in
sections 1–4, 201, 202, 214, 224, 251,
253 and 303(r) of the Communications
Act of 1934, as amended, 47 U.S.C. 151–
154, 201, 202, 214, 224, 251, 253, 303(r),
this NPRM is adopted.
138. It is further ordered that the
Commission’s Consumer &
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this NPRM to the Chief Counsel for
Advocacy of the Small Business
Administration.
List of Subjects
47 CFR Part 1
Practice and procedure.
pmangrum on DSK3GDR082PROD with PROPOSALS1
47 CFR Part 51
Interconnection.
47 CFR 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.
Jkt 241001
1. The authority for part 1 continues
to read as follows:
■
Authority: 15 U.S.C. 79 et seq., 47 U.S.C.
151, 154(i) and (j), 155, 157, 160, 201, 224,
225, 227, 303, 309, 301, 332, 1403, 1404,
1451, 1452, and 1455.
2. Amend § 1.1403 by revising
paragraphs (a) and (b) to read as follows:
■
§ 1.1403 Duty to provide access;
modifications; notice of removal, increase
or modification; petition for temporary stay;
and cable operator notice.
(a) A utility shall provide a cable
television system or any
telecommunications carrier with
nondiscriminatory access to any pole,
duct, conduit, or right-of-way owned or
controlled by it. A utility that is a local
exchange carrier shall provide any
incumbent local exchange carrier (as
defined in 47 U.S.C. 251(h)) with
nondiscriminatory access to any pole,
duct, conduit, or right-of-way owned or
controlled by it. Notwithstanding either
of the foregoing obligations, a utility
may deny a cable television system or
any telecommunications carrier, and a
utility that is a local exchange carrier
may deny an incumbent local exchange
carrier, access to its poles, ducts,
conduits, or rights-of-way, on a nondiscriminatory basis where there is
insufficient capacity or for reasons of
safety, reliability and generally
applicable engineering purposes.
(b) Requests for access to a utility’s
poles, ducts, conduits, or rights-of-way
by a telecommunications carrier or cable
operator must be in writing. If access is
not granted within 15 days of the
request for access, the utility must
confirm the denial in writing by the
15th day (or within the timelines set
forth in section 1.1420(g)). The utility’s
denial of access shall be specific, shall
include all relevant evidence and
information supporting its denial, and
shall explain how such evidence and
information relate to a denial of access
for reasons of lack of capacity, safety,
reliability or engineering standards.
*
*
*
*
*
■ 3. Amend § 1.1404 by revising
paragraph (k) to read as follows:
Complaint.
*
Proposed Rules
For the reasons discussed in the
preamble, the Federal Communications
14:09 May 15, 2017
PART 1—PRACTICE AND
PROCEDURE
§ 1.1404
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
VerDate Sep<11>2014
Commission proposes to amend 47 CFR
parts 1, 51, and 63 as follows:
*
*
*
*
(k) The complaint shall include:
(1) A certification that the
complainant has, in good faith, engaged
or attempted to engage in executivelevel discussions with the respondent to
resolve the pole attachment dispute.
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Sfmt 4702
Executive-level discussions are
discussions among representatives of
the parties who have sufficient authority
to make binding decisions on behalf of
the company they represent regarding
the subject matter of the discussions.
Such certification shall include a
statement that, prior to the filing of the
complaint, the complainant mailed a
certified letter to the respondent
outlining the allegations that form the
basis of the complaint it anticipated
filing with the Commission, inviting a
response within a reasonable period of
time, and offering to hold executivelevel discussions regarding the dispute;
and
(2) A certification that the
complainant and respondent have, in
good faith, engaged in discussions to
resolve procedural issues and deadlines
associated with the pole attachment
complaint process. Such certification
shall include a statement that the
complainant has contacted the
Commission to disclose the results of
the pre-complaint discussions with
respondent.
(3) A refusal by a respondent to
engage in the discussions contemplated
in this paragraph shall constitute an
unreasonable practice under section 224
of the Act.
*
*
*
*
*
■ 4. Amend § 1.1409 by revising
paragraph (c) to read as follows:
§ 1.1409 Commission consideration of the
complaint.
*
*
*
*
*
(c) The Commission shall determine
whether the rate, term or condition
complained of is just and reasonable.
For the purposes of this paragraph, a
rate is just and reasonable if it assures
a utility the recovery of not less than the
additional costs of providing pole
attachments, nor more than an amount
determined by multiplying the
percentage of the total usable space, or
the percentage of the total duct or
conduit capacity, which is occupied by
the pole attachment by the sum of the
operating expenses and actual capital
costs of the utility attributable to the
entire pole, duct, conduit, or right-ofway. The Commission shall exclude
from actual capital costs those
reimbursements received by the utility
from cable operators and
telecommunications carriers for nonrecurring costs as set forth in sections
1.1404(g)(1)(xiii) and 1.1404(h)(1)(ix).
*
*
*
*
*
■ 5. Amend § 1.1416 by revising the
section heading and paragraphs (b) and
(c), and adding paragraph (d) to read as
follows:
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§ 1.1416
costs.
Imputation of rates; make-ready
*
*
*
*
*
(b) The cable television system
operator or telecommunications carrier
requesting attachment shall be
responsible only for the actual costs of
make-ready made necessary solely as a
result of its new attachments.
(c) The costs of modifying a facility
shall be borne by all attachers and
utilities that obtain access to the facility
as a result of the modification and by all
attachers and utilities that directly
benefit from the modification. Each
party described in the preceding
sentence shall share proportionately in
the cost of the modification. An attacher
or a utility with a preexisting
attachment to the modified facility shall
be deemed to directly benefit from a
modification if, after receiving
notification of such modification as
provided in subpart J of this part, it adds
to or modifies its attachment.
Notwithstanding the foregoing, an
attacher or utility with a preexisting
attachment to a pole, conduit, duct or
right-of-way shall not be required to
bear any of the costs of rearranging or
replacing its attachment if such
rearrangement or replacement is
necessitated solely as a result of an
additional attachment or the
modification of an existing attachment
sought by another party. If an attacher
or utility makes an attachment to the
facility after the completion of the
modification, such party shall share
proportionately in the cost of the
modification if such modification
rendered possible the added attachment.
(d) If a utility performs make-ready,
the utility shall make available to the
cable television system operator or
telecommunications carrier requesting
attachment a schedule of its common
make-ready charges that the new
attacher may be charged.
■ 6. Amend § 1.1420 by revising
paragraphs (c) and (d), paragraph
(e)(1)(ii), and paragraphs (g)(3) and (4) to
read as follows:
§ 1.1420 Timeline for access to poles,
ducts, conduits, and rights of way.
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*
*
*
*
*
(c) Survey. A utility shall respond as
described in § 1.1403(b) to a cable
television system operator or
telecommunications carrier within 15
days of receipt of a complete application
to attach facilities to its utility poles (or
within the timelines set forth in
paragraph (g) of this section). This
response may be a notification that the
utility has completed a survey of poles
for which access has been requested. A
complete application is an application
VerDate Sep<11>2014
14:09 May 15, 2017
Jkt 241001
that provides the utility with the
information necessary under its
procedures to begin to survey the poles.
(d) Estimate. Where a request for
access is not denied, a utility shall
present to a cable television system
operator or telecommunications carrier
an estimate of charges to perform all
necessary make-ready work within 7
days of providing the response required
by § 1.1420(c), or in the case where a
prospective attacher’s contractor has
performed a survey, within 7 days of
receipt by the utility of such survey.
(1) A utility may withdraw an
outstanding estimate of charges to
perform make-ready work beginning 7
days after the estimate is presented.
(2) A cable television system operator
or telecommunications carrier may
accept a valid estimate and make
payment anytime after receipt of an
estimate but before the estimate is
withdrawn.
(e) * * *
(1) * * *
(ii) Set a date for completion of makeready that is no later than 30 days after
notification is sent (or 75 days in the
case of larger orders as described in
paragraph (g) of this section).
*
*
*
*
*
(g) * * *
(3) A utility may add 30 days to the
survey period described in paragraph (c)
of this section to pole attachment orders
larger than the lesser of (i) 3000 poles
or (ii) 5 percent of the utility’s poles in
a state.
(4) A utility may add 45 days to the
make-ready periods described in
paragraph (e) of this section to larger
orders up to the lesser of 3000 poles or
5 percent of the utility’s poles in a state.
*
*
*
*
*
■ 7. Amend § 1.1422 by revising the
section heading and paragraphs (a) and
(c) to read as follows:
§ 1.1422
ready.
Contractors for survey and make-
(a) A utility shall make available and
keep up-to-date a reasonably sufficient
list of contractors it authorizes to
perform surveys and make-ready in the
communications space on its utility
poles. A utility shall separately identify
on that list the contractors it authorizes
to perform make-ready above the
communications space on its utility
poles.
*
*
*
*
*
(c) A cable television system operator
or telecommunications carrier that hires
a contractor for survey or make-ready
work shall provide a utility and existing
attachers with a reasonable opportunity
for their representatives to accompany
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22475
and consult with the authorized
contractor and the cable television
system operator or telecommunications
carrier requesting attachment.
*
*
*
*
*
■ 8. Revise § 1.1424 to read as follows:
§ 1.1424 Complaints by incumbent local
exchange carriers.
Complaints by an incumbent local
exchange carrier (as defined in 47 U.S.C.
251(h)) or an association of incumbent
local exchange carriers alleging that a
rate, term, or condition for a pole
attachment is not just and reasonable
shall follow the same complaint
procedures specified for other pole
attachment complaints in this part, as
relevant. In complaint proceedings,
there will be a rebuttable presumption
that an incumbent local exchange
carrier (or an association of incumbent
local exchange carriers) is similarly
situated to an attacher that is a
telecommunications carrier (as defined
in 47 U.S.C. 251(a)(5)) or a cable
television system for purposes of
obtaining comparable rates, terms or
conditions. In pole attachment rate
complaint proceedings, it is presumed
that incumbent local exchange carriers
(or an association of incumbent local
exchange carriers) may be charged no
higher than the rate determined in
accordance with section 1.1409(e)(2),
unless a utility can rebut the
presumption by demonstrating that this
maximum rate presumption should not
apply.
■ 9. Add § 1.1425 to subpart J to read as
follows:
§ 1.1425 Review Period for Pole Access
Complaints.
(a) Except in extraordinary
circumstances, final action on a
complaint where a cable television
system operator or telecommunications
carrier claims that it has been denied
access to a pole, duct, conduit, or rightof-way owned or controlled by a utility
should be expected no later than 180
days from the date the complaint is filed
with the Commission.
(b) The Commission shall have the
discretion to pause the 180-day review
period in situations where actions
outside the Commission’s control are
responsible for unreasonably delaying
Commission review of an access
complaint.
PART 51—INTERCONNECTION
10. The authority 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.
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[Amended]
11. Amend § 51.325 by removing
paragraph (c) and redesignating
paragraphs (d) and (e) as (c) and (d).
■
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
12. The authority for part 63
continues to read as follows:
■
Authority: Sections 1, 4(i), 4(j), 10, 11,
201–205, 214, 218, 403 and 651 of the
Communications Act of 1934, as amended,
47 U.S.C. 151, 154(i), 154(j), 160, 201–205,
214, 218, 403, and 571, unless otherwise
noted.
13. Amend § 63.60 by redesignating
paragraphs (d) through (h) as (e) through
(i), and adding new paragraph (d) to
read as follows:
■
§ 63.60
Definitions.
*
*
*
*
*
(d) Grandfather means to maintain the
provision of a service to existing
customers while ceasing to offer that
service to new customers.
*
*
*
*
*
■ 14. Amend § 63.71 by adding
paragraph (a)(5)(iii) and (a)(8), revising
paragraph (c), removing paragraph (d),
redesignating paragraphs (e) and (f) as
(d) and (e), adding new paragraph (f),
and revising paragraph (g) to read as
follows:
§ 63.71 Procedures for discontinuance,
reduction or impairment of service by
domestic carriers.
pmangrum on DSK3GDR082PROD with PROPOSALS1
(a) * * *
(5) * * *
(iii) Notwithstanding paragraphs
(a)(5)(i) and (ii) of this section, if any
carrier, dominant or non-dominant,
seeks to either grandfather legacy
service operating at speeds lower than
1.544 Mbps; or discontinue, reduce, or
impair legacy data service that has been
grandfathered for a period of no less
VerDate Sep<11>2014
14:09 May 15, 2017
Jkt 241001
than 180 days consistent with the
criteria established in paragraph (a)(8) of
this section, the notice shall state: The
FCC will normally authorize this
proposed discontinuance of service (or
reduction or impairment) unless it is
shown that customers would be unable
to receive service or a reasonable
substitute from another carrier or that
the public convenience and necessity is
otherwise adversely affected. If you
wish to object, you should file your
comments as soon as possible, but no
later than 10 days after the Commission
releases public notice of the proposed
discontinuance. You may file your
comments electronically through the
FCC’s Electronic Comment Filing
System using the docket number
established in the Commission’s public
notice for this proceeding, or you may
address them to the Federal
Communications Commission, Wireline
Competition Bureau, Competition
Policy Division, Washington, DC 20554,
and include in your comments a
reference to the § 63.71 Application of
(carrier’s name). Comments should
include specific information about the
impact of this proposed discontinuance
(or reduction or impairment) upon you
or your company, including any
inability to acquire reasonable substitute
service.
*
*
*
*
*
(8) For applications to discontinue,
reduce, or impair a legacy data service
that has been grandfathered for a period
of no less than 180 days, in order to be
eligible for automatic grant under
paragraph (f) of this section, an
applicant must include in its
application a statement confirming that
they received Commission authority to
grandfather the service at issue at least
180 days prior to filing the current
application.
*
*
*
*
*
(c) The carrier shall file with this
Commission, on or after the date on
which notice has been given to all
affected customers, an application
which shall contain the following:
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Fmt 4702
Sfmt 9990
(1) Caption—‘‘Section 63.71
Application’’;
(2) Information listed in § 63.71(a) (1)
through (4) above;
(3) Information listed in § 63.71(a) (6)
through (8) above, if applicable;
(4) Brief description of the dates and
methods of notice to all affected
customers;
(5) Whether the carrier is considered
dominant or non-dominant with respect
to the service to be discontinued,
reduced or impaired; and
(6) Any other information the
Commission may require.
*
*
*
*
*
(f) Notwithstanding paragraph (e) of
this section, an application filed by any
carrier seeking to grandfather legacy
service operating at speeds lower than
1.544 Mbps for existing customers shall
be automatically granted on the 25th
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. For
purposes of this section, an application
will be deemed filed on the date the
Commission releases public notice of
the filing.
(g) An application seeking to:
(1) Discontinue, reduce, or impair a
service for which the requesting carrier
has had no customers or reasonable
requests for service during the 60-day
period immediately preceding the filing
of the application; or
(2) Discontinue, reduce, or impair a
legacy data service that has been
grandfathered for no less than the 180day period immediately preceding the
filing 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.
*
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*
[FR Doc. 2017–09689 Filed 5–15–17; 8:45 am]
BILLING CODE 6712–01–P
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Agencies
[Federal Register Volume 82, Number 93 (Tuesday, May 16, 2017)]
[Proposed Rules]
[Pages 22453-22476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09689]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 1, 51, and 63
[WC Docket No. 17-84; FCC 17-37]
Accelerating Wireline Broadband Deployment by Removing Barriers
to Infrastructure Investment
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, a Notice of Proposed Rulemaking (NPRM) seeks
comment on a number of actions designed to remove regulatory barriers
to infrastructure investment at the federal, state, and local level,
speed the transition from copper networks and legacy services to next-
generation networks and services, and reform Commission regulations
that increase costs and slow broadband deployment. The NPRM seeks
comment on pole attachment reforms, changes to the copper retirement
and other network change notification processes, and changes to the
section 214(a) discontinuance application process. The Commission
adopted the NPRM in conjunction with a Notice of Inquiry and Request
for Comment in WC Docket No. 17-84.
DATES: Comments are due on or before June 15, 2017, and reply comments
are due on or before July 17, 2017. Written comments on the Paperwork
Reduction Act proposed information collection requirements must be
submitted by the public, Office of Management and Budget (OMB), and
other interested parties on or before July 17, 2017.
ADDRESSES: You may submit comments, identified by WC Docket No. 17-84,
by any of the following methods:
[ssquf] Federal Communications Commission's Web site: https://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
[ssquf] Mail: Parties who choose to file by paper must file an
original and one copy of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the
Commission's Secretary must be delivered to FCC Headquarters at 445
12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building. Commercial overnight mail (other than
U.S. Postal Service Express Mail and Priority Mail) must be sent to
9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service
first-class, Express, and Priority mail must be addressed to 445 12th
Street SW., Washington DC 20554.
[ssquf] People with Disabilities: To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an email to fcc504@fcc.gov or
call the Consumer & Governmental Affairs Bureau at 202-418-0530
(voice), 202-418-0432 (tty).
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document. In addition to filing comments
with the Secretary, a copy of any comments on the Paperwork Reduction
Act information collection requirements contained herein should be
submitted to the Federal Communications Commission via email to
PRA@fcc.gov and to Nicole Ongele, Federal Communications Commission,
via email to Nicole.Ongele@fcc.gov.
FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau,
Competition Policy Division, Michele Berlove, at (202) 418-1477,
michele.berlove@fcc.gov, or Michael Ray, at (202) 418-0357,
michael.ray@fcc.gov. For additional information concerning the
Paperwork Reduction Act information collection requirements contained
in this document, send an
[[Page 22454]]
email to PRA@fcc.gov or contact Nicole Ongele at (202) 418-2991.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in WC Docket No. 17-84, adopted April 20,
2017 and released April 21, 2017. 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://transition.fcc.gov/Daily_Releases/Daily_Business/2017/db0421/FCC-17-37A1.pdf.
Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47
CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS). See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998), https://www.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: https://www.fcc.gov/ecfs/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing. If more than one docket
or rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number. Filings can be sent by hand or messenger delivery,
by commercial overnight courier, or by first-class or overnight U.S.
Postal Service mail. All filings must be addressed to the Commission's
Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the
Commission's Secretary must be delivered to FCC Headquarters at 445
12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are
8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with
rubber bands or fasteners. Any envelopes and boxes must be disposed of
before entering the building. Commercial overnight mail (other than
U.S. Postal Service Express Mail and Priority Mail) must be sent to
9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service
first-class, Express, and Priority mail must be addressed to 445 12th
Street SW., Washington DC 20554.
People with Disabilities: To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an email to fcc504@fcc.gov or
call the Consumer & Governmental Affairs Bureau at 202-418-0530
(voice), 202-418-0432 (tty).
Synopsis
I. Introduction
1. High-speed broadband is an increasingly important gateway to
jobs, health care, education, information, and economic development.
Access to high-speed broadband can create economic opportunity,
enabling entrepreneurs to create businesses, immediately reach
customers throughout the world, and revolutionize entire industries.
Today, we propose and seek comment on a number of actions designed to
accelerate the deployment of next-generation networks and services by
removing barriers to infrastructure investment.
2. This NPRM seeks to better enable broadband providers to build,
maintain, and upgrade their networks, which will lead to more
affordable and available Internet access and other broadband services
for consumers and businesses alike. Today's actions propose to remove
regulatory barriers to infrastructure investment at the federal, state,
and local level; suggest changes to speed the transition from copper
networks and legacy services to next-generation networks and services;
and propose to reform Commission regulations that increase costs and
slow broadband deployment.
II. Pole Attachment Reforms
3. Pole attachments are a key input for many broadband deployment
projects. Reforms which reduce pole attachment costs and speed access
to utility poles would remove significant barriers to broadband
infrastructure deployment and in turn increase broadband availability
and competition in the provision of high-speed services.
4. The Communications Act of 1934, as amended (Act), grants the
Commission authority to regulate attachments to utility-owned and -
controlled poles, ducts, conduits, and rights-of-way (collectively,
poles). Among other things, the Act authorizes the Commission to
prescribe rules ensuring ``just and reasonable'' ``rates, terms, and
conditions'' for pole attachments and ``nondiscriminatory access'' to
poles, rules defining pole attachment rates for attachers that are
cable television systems and telecommunications carriers, rules
regarding the apportionment of make-ready costs between utilities and
attachers, and rules requiring all local exchange carriers (LECs) to
``afford access to the poles, ducts, conduits, and rights-of-way of
such carrier to competing providers of telecommunications service . . .
.'' Section 224(a)(4) of the Act defines a pole attachment as any
attachment by a cable television system or provider of
telecommunications service to a pole, duct, conduit, or right-of-way
owned or controlled by a utility. Accordingly, unless specified
otherwise, we use the term ``pole attachment'' in this NPRM to refer to
attachments not only to poles, but to ducts, conduits, and rights-of-
way as well. ``Make-ready'' generally refers to the modification of
poles or lines or the installation of certain equipment (e.g., guys and
anchors) to accommodate additional facilities. The Act also allows
states to reverse-preempt the Commission's regulations so long as they
meet certain federal standards. To date, twenty states and the District
of Columbia have reverse-preempted Commission jurisdiction over the
rates, terms, and conditions of pole attachments in their states.
5. We seek to exercise this authority to accelerate the deployment
of next-generation infrastructure so that consumers in all regions of
the Nation can enjoy the benefits of high-speed Internet access as well
as additional competition.
A. Speeding Access to Poles
6. We seek comment on proposals to streamline and accelerate the
Commission-established timeline for processing pole attachment
requests, which currently envisions up to a five-month process
(assuming all contemplated deadlines are met). Several proposals to
speed pole access allow telecommunications and cable providers seeking
to add equipment to a utility pole (a ``new attacher'') to adjust, on
an expedited basis, the preexisting equipment of the utility and other
providers already on that pole (``existing attachers''). We emphasize
at the outset that we are seeking to develop an approach that balances
the legitimate needs and interests of new attachers, existing
attachers, utilities, and the public. In particular, we recognize that
speeding access to poles could raise meaningful concerns about safety
and protection of existing infrastructure. We intend to work toward an
approach that facilitates new attachments without creating undue risk
of harm. We intend for the proposals below to be a starting point that
will stimulate refinements as we work toward potential adoption of a
final pole attachment process.
[[Page 22455]]
1. Speeding the Current Commission Pole Attachment Timeline
7. We seek comment on potential reforms to the various steps of the
Commission's current pole attachment timeline to facilitate timely
access to poles. Access to poles, including the preparation of poles
for new attachments, must be timely in order to constitute just and
reasonable access under section 224 of the Act. The Commission's
current four-stage timeline for wireline and wireless requests to
access the ``communications space'' on utility poles, adopted in 2011,
provides for periods that do not exceed: application review and
engineering survey (45 days), cost estimate (14 days), attacher
acceptance (14 days), and make-ready (60-75 days). It also allows
timeline modifications for wireless attachments above the
communications space and for large requests.
8. Application Review. We seek comment on whether we should require
a utility to review and make a decision on a completed pole attachment
application within a timeframe shorter than the current 45 days. Is 15
days a reasonable timeframe for utilities to act on a completed pole
attachment application? Is 30 days? We seek comment on, and examples
of, current timelines for the consideration of pole attachment
applications, especially in states that regulate their own rates,
terms, and conditions for pole access. If we adopt a shorter timeline,
we also seek comment on situations in which it might be reasonable for
the utility's review of a pole attachment application to extend beyond
the new shortened timeline.
9. In addition, we seek comment on retaining the existing
Commission rule allowing utilities 15 extra days to consider pole
attachment applications in the case of large orders (i.e., up to the
lesser of 3,000 poles or five percent of the utility's poles in a
state). We also seek comment on capping, at a total of 45 days, utility
review of those pole attachment applications that are larger than the
lesser of 3,000 poles or five percent of a utility's poles in a state.
We seek comment on possible alternatives by which we may take into
account large pole attachment orders. We seek comment regarding the
expected volume of pole attachment requests associated with the 5G
rollouts of wireless carriers and whether the extended timelines for
larger pole attachment orders might help utilities process the large
volume of requests we anticipate will be associated with the 5G
buildouts.
10. Survey, Cost Estimate, and Acceptance. We seek comment on
whether the review period for pole attachment applications should still
include time for the utility to survey the poles for which access has
been requested. With regard to the estimate and acceptance steps of the
current pole access timeline, should we require a timeframe for these
steps that is shorter than the current 28 days? Would it be reasonable
to combine these steps into a condensed 14-day (or 10-day) period?
Could we wrap these two steps into the make-ready timeframe? Would it
be reasonable to eliminate these two steps entirely? If so, without the
estimate and acceptance steps, then what alternatives should there be
for requiring utilities and new attachers to come to an agreement on
make-ready costs?
11. Make-Ready. We also seek comment on approaches to shorten the
make-ready work timeframe. The Commission currently requires that
utilities give existing attachers a period not to exceed 60 days after
the make-ready notice is sent to complete work on their equipment in
the communications space of a pole. In adopting a 60-day maximum period
for existing attachers to complete make-ready work, the 2011 Pole
Attachment Order recommended as a ``best practice'' a make-ready period
of 30 days or less for small pole attachment requests and 45 days for
medium-size requests. Should the Commission adopt as requirements the
``best practices'' timeframes set forth in the 2011 Pole Attachment
Order? What other timeframes would be reasonable, recognizing the
safety concerns and property interests of existing attachers and
utilities when conducting make-ready work on a pole? We seek comment on
any state experience with this phase of the make-ready process--how
long is it taking existing attachers to perform make-ready work in
states that are not subject to Commission pole attachment jurisdiction?
Do existing attachers require the full make-ready periods to move their
attachments such that the total timeline for a new attacher exceeds the
Commission's existing pole attachment timeline? Are there situations in
which it is reasonable for existing attachers to go beyond the current
Commission timeframes to complete make-ready work? Further, are there
ways that the Commission can eliminate or significantly reduce the need
for make-ready work? For example, what can the Commission do to
encourage utilities to proactively make room for future attachers by
consolidating existing attachments, reserving space on new poles for
new attachers, and allowing the use of extension arms to increase pole
capacity?
12. In addition, the Commission has adopted longer maximum periods
for existing attachers and utilities to complete make-ready work in the
case of large pole attachment orders (an additional 45 days) and in the
case of wireless attachments above the communications space (a total of
up to 90 days for such attachments or up to 135 days in the case of
large wireless attachment orders). We seek comment on whether it is
reasonable to retain these extended time periods for large pole
attachment orders and for wireless attachments above the communications
space. We seek comment on reasonable alternatives to these timelines,
bearing in mind the safety concerns inherent in make-ready work above
the communications space on a pole and the manpower concerns of
existing attachers and utilities when having to perform make-ready on
large numbers of poles in a condensed time period.
2. Alternative Pole Attachment Processes
13. We seek comment generally on possible alternatives to the
Commission's current pole attachment process that might speed access to
poles. We also seek comment on potential remedies, penalties, and other
ways to incent utilities, existing attachers, and new attachers to work
together to speed the pole attachment timeline. If the Commission were
to adopt any of the revisions proposed below or other revisions to our
process, would section 224 of the Act support such an approach? What
other statutory authority could the Commission rely on in adopting such
changes? In considering the proposals below for alternatives to the
pole attachment timeline, we seek comment on the need to balance the
benefits of these alternatives against the safety and property concerns
that are paramount to the pole attachment process. For example, we seek
comment on the extent to which any of the proposals may violate the
Fifth Amendment protections of utilities and existing attachers against
the taking of their property without just compensation.
14. Use of Utility-Approved Contractors to Perform Make-Ready Work.
We seek comment on whether the Commission should adopt rules that would
allow new attachers to use utility-approved contractors to perform
``routine'' make-ready work and also to perform ``complex'' make-ready
work (i.e., make-ready work that reasonably would be expected to cause
a customer
[[Page 22456]]
outage) in situations where an existing attacher fails to do so. Under
the Commission's current pole attachment timeline, utilities may allow
existing attachers up to 60 days to complete make-ready work on their
equipment in the communications space and utilities have the right to
ask for an additional 15 days to complete the work when the existing
attacher fails to do so. Only after that period of up to 75 days has
run, and neither the existing attachers nor the utilities have met
their deadlines, can new attachers begin to perform make-ready work
using utility-approved contractors. The timelines are even longer in
cases of larger pole attachment requests and for wireless make-ready
work above the communications space on a pole. We seek comment on
whether it would be reasonable to expand the use of utility-approved
contractors to perform make-ready work, especially earlier in the pole
attachment process. Would it be reasonable to eliminate the utility's
right to complete make-ready work in favor of a new attacher performing
the make-ready work after an existing attacher fails to meet its make-
ready deadline?
15. We seek comment on balancing the benefits of allowing new
attachers to use utility-approved contractors to perform make-ready
work against any drawbacks of allowing contractors that may not be
approved by existing attachers to move existing equipment on a pole. We
urge commenters, whenever possible, to provide quantifiable data or
evidence supporting their position. We note that AT&T, in its federal
court challenge of Louisville, Kentucky's pole attachment ordinance,
argued that utility-approved contractors ``have on occasion moved
AT&T's network facilities, with less-than-satisfactory results,'' while
Comcast argued in its federal court challenge to Nashville, Tennessee's
pole attachment ordinance that third-party contractors ``are
significantly more likely to damage Comcast's equipment or interfere
with its services.'' We seek comment on other safety and property
concerns that the Commission should account for in considering whether
to allow an expanded role in the make-ready process for utility-
approved contractors. We also seek comment on liability safe harbors
that would protect the property and safety interests of existing
attachers, utilities, and their customers when new attachers use
utility-approved contractors to perform make-ready work on poles and
existing equipment on the poles. For example, to ensure protections for
existing attachers and utilities, would it be reasonable to impose on
new attachers requirements such as surety bonds, indemnifications for
outages and damages, and self-help remedies for utilities and existing
attachers to fix problems caused by new attacher contractors? Are there
other safeguards that we can adopt to protect existing attachers,
utilities, and their customers in the event that the new attacher's
contractors err in the performance of make-ready work?
16. For make-ready work that would be considered ``routine'' in the
communications space of a pole, is it reasonable to allow a new
attacher to use a utility-approved contractor to perform such work
after notice has been sent to existing attachers? Would it be
reasonable to allow new attachers to use utility-approved contractors
to perform complex make-ready work as well? Also, because of the
special skills required to work on wireless attachments above the
communications space on a pole, we seek comment on whether utilities
should be required to keep a separate list of contractors authorized to
perform this specialized make-ready work. Currently, utilities are
required to make available and keep up-to-date a reasonably sufficient
list of contractors authorized to perform make-ready work in the
communications space on a utility pole. Should utility-approved
contractors that work for new attachers be allowed to perform make-
ready work on wireless attachments above the communications space on a
pole?
17. We also seek comment on the following proposals that address
the safety and property concerns of existing attachers and utilities:
Requiring all impacted attachers (new, existing, and
utilities) to agree on a contractor or contractors that the new
attacher could use to perform make-ready work; and/or
requiring that existing attachers (or their contractors)
be given the reasonable opportunity to observe the make-ready work
being done on their existing equipment by the new attachers'
contractors.
We seek comment on the benefits of these and other alternative
proposals involving the use of utility-approved contractors to perform
make-ready work.
18. New Attachers Performing Make-Ready Work. We seek comment on
whether we should adopt rules to allow new attachers (using utility-
approved contractors) to perform routine make-ready work in lieu of the
existing attacher performing such work. Recognizing that existing
attachers may oppose such proposals, we seek comment on alternatives
that would address their safety and property concerns, while still
shortening the make-ready timeline. Allowing the new attacher to
perform make-ready work would save time over the current Commission
timeline by permitting the new attacher to initiate routine make-ready
work after giving brief (or no) notice to existing attachers. We
recognize that such a process would exclude existing attachers from the
opportunity to perform routine make-ready work and we seek comment on
whether such an exclusion is reasonable. We note that in crafting the
pole attachment timeline adopted in 2011, the Commission sought to
strike a balance between the goals of promoting broadband
infrastructure deployment by new attachers and safeguarding the
reliability of existing networks. We seek comment on the risks and
drawbacks of any proposal that seeks to change that balance by letting
new attachers conduct routine make-ready work without allowing existing
attachers the opportunity to do so.
19. We also recognize that a number of carriers have raised
concerns about allowing new attachers to conduct routine make-ready
work on equipment belonging to existing attachers. As AT&T pointed out
in its challenge to Louisville's pole attachment ordinance, the
movement and rearrangement of communications facilities has public
safety implications; we thus seek comment on AT&T's claim that the
``service provider whose pre-existing facilities are at issue plainly
is in the best position to determine whether required make-ready work
could be service-affecting or threaten the reliability of its
network.'' Charter, in a separate challenge to Louisville's ordinance,
argues that allowing competitors to perform make-ready work on its
equipment could intentionally or unintentionally ``damage or disrupt
[Charter]'s ability to serve its customers, creating an inaccurate
perception in the market about [Charter]'s service quality and harming
its goodwill.'' We seek comment on Charter's claim and whether make-
ready procedures that exclude existing attachers could lead to consumer
misunderstandings in the event of service disruptions that occur during
make-ready work by other attachers. Should new attachers that perform
make-ready work be required to indemnify, defend, and hold harmless
existing attachers for damages or outages that occur as a result of
make-ready work on their equipment?
20. Post Make-Ready Timeline. If existing attachers are not part of
the make-ready process, then we seek
[[Page 22457]]
comment on an appropriate timeline for inspections and/or surveys by
the existing attachers after the completion of make-ready work. For
example, Nashville, Tennessee's pole attachment ordinance allows for a
30-day timeline for the inspection and resolution of problems detected
by existing attachers to the make-ready work done on their equipment.
Is 30 days enough time to detect and rectify problems caused by
improper make-ready work? Are there reasonable alternative time periods
for existing attachers to review make-ready work and fix any detected
problems? For example, the Louisville, Kentucky pole attachment
ordinance allows for a 14-day inspection period. Further, is it
reasonable to allow the existing attacher to elect to fix the defective
make-ready work on its own (at the new attacher's expense) or to
require the new attacher to fix the problems caused by its work?
21. One-Touch, Make-Ready. We seek comment on the potential
benefits and drawbacks of a pole attachment regime patterned on a
``one-touch, make-ready'' (OTMR) approach, which includes several of
the concepts discussed above as part of a larger pole attachment
framework. Both Nashville, Tennessee and Louisville, Kentucky have
adopted pole attachment regimes that involve elements of an OTMR
policy. The Commission has noted that OTMR policies ``seek to alleviate
`a significant source of costs and delay in building broadband
networks' by `lower[ing] the cost of the make-ready process and
speed[ing] it up.' '' Would a new pole attachment timeline patterned on
an OTMR approach help spur positive decisions on broadband
infrastructure deployment? According to the Fiber to the Home Council,
an OTMR approach ``minimizes disruption in the public rights-of-way and
protects public safety and aesthetics'' while also speeding broadband
deployment. We seek other assessments and analysis of the benefits and
drawbacks of an OTMR pole attachment process. Would some blend of an
OTMR approach coupled with the current Commission pole attachment
timeline and protections help spur timely access to poles?
22. Under the Nashville OTMR ordinance, the pole attachment process
works as follows: (1) A new attacher submits an attachment application
to the utility and after approval of the application, the new attacher
notifies the utility of the need for make-ready work; (2) the new
attacher then contracts with a utility-approved contractor to perform
all of the necessary make-ready work; (3) the new attacher gives 15
days' prior written notice to existing attachers before initiating
make-ready work; (4) within 30 days after the completion of make-ready,
the new attacher sends written notice of the make-ready work to
existing attachers; (5) upon receipt of such notice, the existing
attachers may conduct a field inspection of the make-ready work within
60 days; (6) if an existing attacher finds a problem with the make-
ready work, then it may notify the new attacher in writing (within the
60-day inspection window) and elect to either fix the problem itself at
the new attacher's expense or instruct the new attacher to fix the
issue; and (7) if a new attachment involves ``complex'' make-ready
work, then the new attacher must notify each existing attacher of the
make-ready work at least 30 days before commencement of the work in
order to allow the existing attachers the opportunity to rearrange
their equipment to accommodate the new attacher--if such work is not
performed by the existing attachers within 30 days, then the new
attacher can perform the required make-ready work using utility-
approved contractors. We seek detailed comment on the benefits and
drawbacks of this approach. Are there steps in the Nashville pole
attachment process where utilities, new attachers, and existing
attachers could all benefit from streamlined access to poles,
especially as compared to the current Commission pole attachment
timeline? Rather than adopting a wholesale OTMR approach to the pole
attachment process, are there individual OTMR elements that could form
the basis of a more preferable timeline than what currently exists in
the Commission's rules?
23. The Louisville OTMR ordinance differs from the one in Nashville
in that it does not require new attachers to send pre-make-ready
notices to existing attachers for routine requests, it shortens the
timeline for the post-make-ready field inspection for routine make-
ready work from 60 days to 14 days, it requires existing attachers to
notify the new attacher of any problems (and the election of how to fix
those problems) within 7 days after the field inspection, and it
requires new attachers to correct any problems within 30 days of the
notice. We seek comment on the alternatives advanced in the Louisville
OTMR ordinance and whether the Commission should incorporate any or all
of these concepts into a new pole attachment regime. Does the
Louisville ordinance better balance the concerns of existing attachers
and utilities than the Nashville approach?
24. In addition, CPS Energy, a utility based in San Antonio, Texas,
has implemented an OTMR approach for access to its poles. Under the CPS
Energy policy, the timeline for the pole attachment process is as
follows: (1) 21 days for CPS Energy to review completed pole attachment
applications (with a unilateral option for an additional 7 days),
survey affected poles, and produce a make-ready cost estimate; (2) 21
days for the new attacher to approve the make-ready cost estimate and
provide payment; (3) CPS Energy notice to existing attachers of
impending make-ready work; (4) 60 days for CPS Energy to complete any
required make-ready work in the electrical space, and 90 days for the
new attacher to complete all other routine make-ready work at its
expense using contractors approved by CPS Energy (with option to
request additional 30 days); (5) new attachers must give 3 days' notice
to existing attachers of impending make-ready work and must specify
whether the work is complex, such that it ``poses a risk of
disconnection or interruption of service to a Critical Communications
Facility'' (any complex make-ready work must be completed by the new
attacher within 30 days after notice is provided to affected existing
attachers); (6) 15 days' notice from new attachers to affected existing
attachers after completion of make-ready work; (7) 15 days for existing
attachers to inspect make-ready work on their equipment; and (8) 15
days for new attachers to fix any problems after notice from existing
attachers. We seek comment on this approach, which varies from the
ordinances adopted in Nashville and Louisville, especially in terms of
the timing of the various pole attachment stages and the ability of new
attachers to perform complex make-ready work themselves. What are the
benefits and drawbacks of the process adopted by CPS Energy? Is it
significant that this process is a utility-adopted approach as opposed
to a government-adopted approach? What can the Commission do to
encourage other utilities to adopt pole attachment policies like the
one instituted by CPS Energy?
25. Other Pole Attachment Process Proposals. Another pole
attachment proposal, advanced by members of the Nashville City Council
who opposed the OTMR ordinance, is styled ``right-touch, make-ready''
(RTMR), and it would provide a utility 30 days in which to review a
pole attachment application, then provide existing attachers 45 days to
complete make-ready work. Existing attachers failing to meet the 45-day
deadline would be charged $500 per pole per month until required make-
ready work is completed. We seek comment on the reasonableness of this
[[Page 22458]]
approach. What are the advantages and drawbacks of a RTMR approach as
opposed to an OTMR approach? Could elements of both approaches be
blended together to form a better alternative to the Commission's
current pole attachment timeline? Would the $500 per pole per month
charge be enough of an incentive to encourage existing attachers to
complete make-ready work by the 45-day deadline? Would it be reasonable
to include in a RTMR approach the ability of new attachers (or the
utility) to perform make-ready work at the expense of existing
attachers who fail to meet the 45-day deadline?
26. As another way to incent accelerated make-ready timelines,
could there be a standard ``bonus'' payment or multiplier applied to
the make-ready reimbursements sought by existing attachers from new
attachers if the overall timelines are met? By basing such incentive
payments on the overall timeline being achieved by existing attachers,
does this create effective incentives for parties to collaborate and
find opportunities for efficiency? For instance, might multiple
existing attachers agree to use the same make-ready contractor so they
all can reap the reward of the incentive payments? While such
incentives could theoretically be arranged through private contracting,
would using this as the default system benefit smaller, new attachers
who may find complicated negotiations a challenge?
27. Making more information publicly available regarding the rates,
location, and availability of poles also could lead to faster pole
attachment timelines. We seek comment on the types of pole attachment
data resources currently available. Are there ways the Commission could
incentivize utilities to establish online databases, maps, or other
public information sources regarding pole rates, locations, and
availability? To what extent are utilities or other entities already
aggregating pole information online, either for internal tracking
purposes or externally for potential or existing attachers? What pole-
related information other than rates, location, and availability could
utilities make publicly available (e.g., number of existing attachers,
physical condition, available communications space, the status of make-
ready work, status of pole engineering surveys)? Should similar
information also be made publicly available for ducts, conduits, and
rights-of-way? We recognize that increasing transparency of cost
information could lead to more efficient pole attachment negotiations.
What steps should the Commission take to facilitate access to
information regarding pole attachment rates and costs from pole owners
subject to section 224? For instance, should pole owners be required to
make pole attachment rates publicly available online? What are the
benefits and drawbacks of making pole attachment rate information
publicly available? Could the Commission facilitate the creation of a
centralized clearinghouse of pole attachment rate information, and if
so how?
28. We seek comment on these proposals and any others (or
combinations thereof) that could help speed the pole attachment
process, yet still address the safety and property concerns of existing
attachers and utilities. Might there be ``hybrid'' approaches that
incent parties to expeditiously complete the make-ready process when
private negotiations fail within a given time period? For instance, if
utilities, existing attachers, and new attachers cannot agree on make-
ready plans within 15 days, could the following arrangement be used:
First, the new attacher would select a ``default'' contractor (approved
by the utility); second, the existing attachers would be able to accept
the default contractor or do the make-ready work themselves (and be
reimbursed by the new attacher) within a specified timeframe with
penalties for failure to meet the make-ready deadline? If having a
single default contractor do all the work at once will speed
deployment, are there ways within this framework to incent existing
attachers to allow the new attacher to use the default contractor? For
instance, might existing attachers choosing to do make-ready work
themselves be limited in the amount they charge for the work? Could
such a limit be set as a proportional split among existing attachers
that is based on the total make-ready costs that the new attacher would
have incurred under an OTMR approach? Would such incentives encourage
existing attachers to choose the default contractor in situations where
they have little concern about harm to their equipment but still allow
them to do the work themselves when they have concerns?
29. We seek discussions of the relative merits and drawbacks of
these pole attachment approaches or combinations thereof. For example,
would an OTMR approach (or some variant thereof) benefit consumers
through increased efficiencies that could lower the costs of
deployment? Is there any evidence to show how much less pole attachment
costs are if using an OTMR approach as compared with the Commission's
current pole attachment timeline? How should we balance the benefits to
society from greater speed of deployment and cost savings versus the
need to ensure that safety and property concerns are not compromised?
30. We also recognize that some broadband providers encounter
difficulties in accessing poles, ducts, conduits, and rights-of-way
owned by entities that are not subject to section 224 of the
Communications Act, such as municipalities, electric cooperatives, and
railroads. ACA members also submit that there are instances where
accessing infrastructure owned by municipalities, electric
cooperatives, and railroads is cost prohibitive due to the pole
attachment rates charged. We seek comment on actions that the
Commission might be able to undertake to speed deployment of next
generation networks by facilitating access to infrastructure owned by
entities not subject to section 224. How can the Commission encourage
or facilitate access to information about pole attachment rates and
costs with respect to these entities, and what are the benefits and
drawbacks of these potential steps? Would increased transparency
regarding pole attachment rates and costs for Commission-regulated pole
owners, discussed above, benefit potential attachers to non-Commission-
regulated poles by providing data that would be useful in contractual
negotiations? If so, would this facilitate broadband deployment?
31. Access to Conduit. We seek comment on ways to make the process
of gaining access specifically to utility conduit more transparent. We
ask whether there are existing online databases or other publicly-
available resources to aid telecommunications and cable providers in
determining where available conduit exists. Do utilities or
municipalities have readily available information on the location and
cost of access to conduit? Are there ``best practices'' that utilities
or municipalities have established that make it easier for providers to
obtain crucial information on conduit access? We seek comment on
whether any local or state jurisdictions have policies on making
conduit information more transparent and widely available, especially
with regard to alerting the public and providers about the timing and
location of conduit trenches being dug by utilities.
B. Re-Examining Rates for Make-Ready Work and Pole Attachments
1. Reasonableness of ``Make-Ready'' Costs
32. We seek comment on proposals to reduce make-ready costs and to
make
[[Page 22459]]
such costs more transparent. In general, make-ready charges must be
just and reasonable under section 224(b)(1) of the Act. Currently,
however, make-ready fees are not subject to any mandatory rate formula
set by the Commission. We seek comment on whether the make-ready costs
being charged today are just and reasonable, and whether such costs
represent a barrier to broadband infrastructure deployment. Further, we
seek comment on ways to encourage utilities, existing attachers, and
new attachers to resolve more make-ready pole attachment cost and
responsibility issues through private negotiations.
33. Requiring Utilities to Make Available Schedules of Common Make-
Ready Charges. We seek comment on whether we should require utilities
to provide potential new attachers with a schedule of common make-ready
charges to create greater transparency for make-ready costs. To what
extent does the availability of schedules of common make-ready charges
help facilitate broadband infrastructure deployment? INCOMPAS suggests
that the Commission should revisit its 2011 decision refraining from
requiring utilities to provide schedules of common make-ready charges
upon request. According to INCOMPAS, ``make ready charges are not
predictable or verifiable in many cases, making it difficult for
competitors to plan their builds and accurately predict construction.''
We seek comment on the benefits and any potential burdens associated
with requiring utilities to provide schedules of make-ready charges.
34. Further, we seek comment on whether and how schedules of common
make-ready charges are made available, used, and implemented by both
utilities and potential new attachers today. In the 2011 Pole
Attachment Order, the Commission received evidence from utilities that
many already make information about common make-ready charges available
on request. Is that practice still prevalent today and, if so, what
methods are most frequently used to provide such schedules (e.g., Web
sites, paper schedules, telephonically)? We also seek comment on which
make-ready jobs and charges are the most common, and thus most easily
included in a generalized schedule of charges. In addition, we seek
comment on any comparable state requirements that require utilities to
publish or make available schedules of common make-ready charges. We
also seek comment on whether there are other mechanisms currently in
use, such as standardized contract terms, that provide the necessary
information and transparency to the make-ready process.
35. Reducing Make-Ready Charges. We seek comment on reasonable ways
to limit the make-ready fees charged by utilities to new attachers.
Would it provide certainty to the make-ready process if the Commission
adopted a rule limiting make-ready fees imposed on new attachers to the
actual costs incurred to accommodate a new attachment? As part of the
pole attachment complaint process, the Commission has held that
utilities ``are entitled to recover their costs from attachers for
reasonable make-ready work necessitated by requests for attachment.
Utilities are not entitled to collect money from attachers for
unnecessary, duplicative, or defective make-ready work.'' Would
codifying the holding that new attachers are responsible only for the
cost of make-ready work made necessary because of their attachments
help to ensure that make-ready costs are just and reasonable?
36. We also seek comment on other alternatives for reducing make-
ready costs. For example, would it be reasonable to allow utilities to
set a standard charge per pole that a new attacher may choose in lieu
of a cost-allocated charge? Should the choice belong to the utility or
the new attacher? Would a per-pole charge of, for example, $300, $400,
or $500 permit utilities to recover their reasonable make-ready costs
and provide new attachers with an affordable alternative to negotiating
with the utility over the applicable costs to be included in make-ready
charges? We seek comment on the viability of such an approach. We also
ask whether it would be reasonable to require utilities to reimburse
new attachers for make-ready costs for improvements that subsequently
benefit the utility (e.g., the modification allows utilities to use
additional space on a pole for its own uses or creates a vehicle for
the utility to receive additional revenues from subsequent attachers).
If so, then how would the new attachers and utilities manage that
process? We seek comment on the potential tradeoffs of such an
approach, which may help to keep make-ready costs low for new
attachers, but also pose new challenges for utilities and new attachers
to administer. We note that pursuant to section 1.1416(b) of the
Commission's rules, attachers who directly benefit from a new pole or
attachment already are required to proportionately share in the costs
of that pole or attachment. The proportionate share of the costs
attributable to the subsequent attacher is reduced to take into account
depreciation to the pole that occurs after the modification. In
adopting this requirement, the Commission ``intended to ensure that new
entrants, especially small entities with limited resources, bear only
their proportionate costs and are not forced to subsidize their later-
entering competitors.'' Should we interpret (or modify) this rule to
apply to utilities when make-ready improvements subsequently benefit
the utility? Conversely, we seek comment on whether requiring utilities
to pass a percentage of additional attachment benefits back to parties
with existing attachments would result in a disincentive to add new
competitors to modified poles.
37. We also seek comment on whether the Commission's complaint
process provides a sufficient mechanism by which to ensure that make-
ready costs are just and reasonable. Commenters arguing that the
Commission's complaint process is not a sufficient limitation on make-
ready costs should propose specific alternatives to ensure the
reasonableness of make-ready charges and explain why the benefits of
such alternatives would outweigh the burdens of a new Commission-
imposed mandate for make-ready charges. Are there state regulatory
approaches or alternatives governing the reasonableness of make-ready
charges that the Commission should consider implementing?
2. Excluding Capital Expenses From Pole Attachment Rates
38. Capital Expenses Recovered via Make-Ready Fees. We propose to
codify a rule that excludes capital costs that utilities already
recover via make-ready fees from pole attachment rates. Almost forty
years ago, the Commission found that ``where a utility has been
directly reimbursed by a [cable television] operator for non-recurring
costs, including plant, such costs must be subtracted from the
utility's corresponding pole line capital account to insure that [cable
television] operators are not charged twice for the same costs.'' Since
that time, the Commission has made clear that ``[m]ake-ready costs are
non-recurring costs for which the utility is directly compensated and
as such are excluded from expenses used in the rate calculation.'' As
such, ``if a utility is required to replace a pole in order to provide
space for an attacher [and] the attacher pays the full cost of the
replacement pole,'' the capital expenses associated with the
installation of those poles should be wholly excluded from pole
attachment rates for all attachers. Nonetheless, it appears that not
all
[[Page 22460]]
attachers benefit from lower rates in these circumstances, in part
because our rules do not explicitly require utilities to exclude
already-reimbursed capital costs from their pole attachment rates. We
seek comment on how utilities recalculate rates when make-ready pays
for a new pole, what rate reductions pole attachers have experienced
when poles are replaced through the make-ready process, and whether
attachers have experienced the inclusion of already-reimbursed capital
costs in their pole attachment rates. We similarly seek comment on how
utilities treat capital expenses associated with their own make-ready
work. When utilities replace poles to accommodate their own needs or to
create additional electrical space, do they appropriately treat
associated capital expenses as make-ready work that is wholly excluded
from pole attachment rates? How do existing attachers know when new
attachers or the utility have fully paid the capital expenses as make-
ready costs so that those expenses should be wholly excluded from rates
going forward?
39. We seek comment on whether amending section 1.1409(c) of our
rules to exclude capital expenses already recovered via make-ready fees
from ``actual capital costs'' is sufficient to ensure no double
recovery occurs by utilities. We seek comment on whether any other
changes to the Commission's rules are necessary and reasonable to
provide certainty to attachers and utilities about the treatment of
pole capital costs that already have been recovered via make-ready.
40. Capital Costs Not Otherwise Recovered Via Make-Ready Fees. We
seek comment on whether we should exclude capital costs that are not
otherwise recoverable through make-ready fees from the upper-bound
cable and telecommunications pole attachment rates. In setting those
rates, the Commission previously found it appropriate to allow
utilities to include in the rates some contribution to capital costs
aside from those recovered through make-ready fees. In revisiting this
issue, we seek comment on the extent to which the capital costs of a
pole, other than those paid through make-ready fees, are caused by
attachers other than the utility (especially when there is space
already available on the pole). If none or only a small fraction of the
capital costs, other than those paid for through make-ready fees, are
caused by attachers other than the utility, would this justify the
complete exclusion of these capital costs from the pole attachment
rate? To what extent would the exclusion of such capital costs further
reduce pole attachment rates? To what extent would the exclusion of
these particular capital costs from the rate formulas burden the
ratepayers of electric utilities? What policy justifies charging pole
attachers, whose costs of deployment may determine the scope of their
investment in infrastructure, anything more than the incremental costs
of attachment to utilities?
41. We note that although the rate formula for operators ``solely''
providing cable service sets an upper bound explicitly tied to ``actual
capital costs,'' the rate formula for telecommunications carriers is
tied only to ``costs.'' The Commission has previously interpreted the
term ``cost'' in the latter formula to exclude at least some capital
costs. Should we revisit this interpretation and interpret the term
``cost'' in the telecommunications pole attachment formula to exclude
all capital costs? Would doing so avoid the awkward interpretation
contained in our present rules that defines the term ``cost'' in two
separate different ways at the same time?
42. Similarly, we note that our more general authority over pole
attachments only requires that rates be ``just and reasonable.'' We
seek comment on the appropriate rate for commingled services, including
when a cable operator or a telecommunications carrier offers
information services as well as cable or telecommunications services
over a single attachment. Should we set that rate for commingled
services based on the upper bound of the cable rate formula, the
telecommunications rate formula, or some third option? Should we
exclude capital costs from the rate formula we use to determine the
commingled services rate? The cable rate formula also sets a lower
bound of ``the additional costs of providing pole attachments.'' How
would that differ from any of the rates discussed heretofore? Should we
set the commingled services rate equal to the lower bound of the cable
rate formula?
43. We seek comment on what specific amendments we should consider
to section 1.1409 of our rules to effectuate any changes.
3. Pole Attachment Rates for Incumbent LECs
44. In the 2011 Pole Attachment Order, the Commission declined to
adopt a pole attachment rate formula for incumbent LECs, opting instead
to evaluate incumbent LEC complaints on a case-by-case basis to
determine whether the rates, terms, and conditions imposed on incumbent
LEC pole attachments are consistent with section 224(b) of the Act. The
Commission held that it is ``appropriate to use the rate of the
comparable attacher as the just and reasonable rate for purposes of
section 224(b)'' when an incumbent LEC enters into a new agreement with
a utility and can demonstrate ``that it is obtaining pole attachments
on terms and conditions that leave them comparably situated to
telecommunications carriers or cable operators.'' Conversely, when the
incumbent LEC attacher cannot make such a demonstration, the Commission
found that a higher rate based on the Commission's pre-2011
telecommunications rate formula should serve as a ``reference point''
for evaluating whether pole attachment rates charged to incumbent LECs
are just and reasonable. In the years since adoption, this formulation
has led to repeated disputes between incumbent LECs and utilities over
appropriate pole attachment rates.
45. To end this controversy, we propose that the ``just and
reasonable rate'' under section 224(b) for incumbent LEC attachers
should presumptively be the same rate paid by other telecommunications
attachers, i.e., a rate calculated using the most recent
telecommunications rate formula. Under this approach, the incumbent LEC
would no longer be required to demonstrate it is ``comparably
situated'' to a telecommunications provider or a cable operator;
instead the incumbent LEC would receive the telecommunications rate
unless the utility pole owner can demonstrate with clear and convincing
evidence that the benefits to the incumbent LEC far outstrip the
benefits accorded to other pole attachers. We seek comment on this
proposal. What demonstration should be sufficient to show that an
incumbent LEC attacher should not be entitled to the telecommunications
rate formula? For instance, should an incumbent LEC have to own a
majority of poles in a joint ownership network? Should an incumbent LEC
have to have special access to modify a utility's poles without prior
notification? How should the relative rates charged to the utility and
the incumbent LEC factor into the analysis? If an incumbent LEC has
attachments on utility poles pursuant to the terms of a joint use
agreement, should the incumbent LEC entitlement to the
telecommunications rate be conditioned on making commensurate
reductions in the rates charged to the utility for attaching to the
incumbent LEC's poles? We also seek comment on the rate that should
apply to incumbent LECs in the event the utility owner can demonstrate
the telecommunications
[[Page 22461]]
rate should not apply. In these instances, should the Commission use
the pre-2011 telecommunications rate formula? We also seek comment on
an alternative pole attachment rate formula approaches for incumbent
LECs. Commenters supporting alternative approaches should provide
specific inputs and methodology that could be used in such a formula.
46. Given that the Commission based its decision in the 2011 Pole
Attachment Order to refrain from establishing pole attachment rates for
incumbent LECs in part on the high levels of incumbent LEC pole
ownership, we seek comment on the relative levels of pole ownership
between utilities, incumbent LECs, and other industry participants. If
pole ownership levels have changed, what bearing should that have on
the rates charge to incumbent LECs?
C. Pole Attachment ``Shot Clock'' For Pole Attachment Complaints
47. Establishing a 180-Day Shot Clock. We propose to establish a
180-day ``shot clock'' for Enforcement Bureau resolution of pole access
complaints filed under section 1.1409 of our rules. A ``pole access
complaint'' is a complaint that alleges a complete denial of access to
utility poles. This term does not encompass a complaint alleging that
unreasonable rates, terms, or conditions that the utility demands as a
condition of attachment (e.g., adherence to certain engineering
standards) amounts to a denial of pole access. We seek comment on this
proposal. The 2011 Pole Attachment Order noted that ``a number of
commenters expressed concern about the length of time it takes for the
Commission to resolve pole attachment complaints,'' but the Commission
determined that the record at the time did not warrant the creation of
new pole attachment complaint rules. We now seek comment on whether we
should revisit that earlier conclusion by creating a shot clock and
whether 180 days is a reasonable timeframe for the Enforcement Bureau
to resolve pole access complaints. We note that under section
224(c)(3)(B) of the Act, a state that has asserted jurisdiction over
the rates, terms, and conditions of pole attachments could lose the
ability to resolve a pole attachment complaint if it does not take
final action within 180 days after the complaint is filed with the
state. Should this statutory time period for state resolution of a pole
attachment complaint inform our consideration as to what constitutes a
reasonable timeframe for Enforcement Bureau consideration of a pole
attachment complaint? We additionally seek alternatives to the 180-day
time period. For example, are there shorter state timelines for the
resolution of pole attachment complaints? Would 150 days, 120 days, 90
days, or an even shorter timeframe be reasonable for the Enforcement
Bureau to resolve a pole access complaint? What would be the benefits
and drawbacks for a shorter timeframe for resolution of pole access
complaints? Also, we seek comment regarding whether the current length
of Enforcement Bureau consideration of pole access complaints has
burdened broadband infrastructure deployment. How, if at all, would a
shot clock (whether it be 180 days or some different time period)
affect new attacher decisions to deploy broadband infrastructure? We
seek comment on the ramifications of the Enforcement Bureau exceeding
the shot clock and on reasonable consequences for the Enforcement
Bureau exceeding the clock.
48. Starting the Shot Clock at the Time a Complaint Is Filed. We
seek comment on when to start the proposed 180-day shot clock. We
propose starting the shot clock at the time the pole access complaint
is filed, as is the case for state complaints under section
224(c)(3)(B) of the Act, and we seek comment on this proposal. We also
seek comment on alternatives that would start the shot clock later in
the process, such as when a reply is filed by the complainant pursuant
to section 1.1407(a) of our rules or, if discovery is requested, when
discovery is complete. Starting the clock at these later junctures
would allow the Enforcement Bureau sufficient time to review the
relevant issues involved in a pole access complaint and would not
disadvantage the timing of the Enforcement Bureau's review if the
pleading cycle or discovery takes longer than expected. Are there
instructive alternative starting points adopted by states for the
initiation of their pole attachment complaint proceedings? If the shot
clock does not start until sometime after a pole access complaint is
filed, would it make sense to institute a shot clock that is shorter
than 180 days?
49. Pausing the Shot Clock. We seek comment on whether the
Enforcement Bureau should be able to pause the proposed shot clock for
a reasonable time in situations where actions outside the Enforcement
Bureau's control are responsible for delaying its review of a pole
access complaint. In the transactions context, the reviewing Bureau
pauses the shot clock when the parties need additional time to provide
key information requested by the Bureau. We propose to allow the
Enforcement Bureau the discretion to pause the shot clock in that
situation, as well as when the parties decide to pursue informal
dispute resolution or request a delay to pursue settlement discussions
after a pole access complaint is filed. We ask whether these are valid
reasons to pause the shot clock, and we seek comment on objective
criteria for the Enforcement Bureau to use in deciding whether such
situations are significant enough to warrant a pause in the shot clock.
We also seek comment on when the Enforcement Bureau should resume the
shot clock. Are there objective criteria that the Enforcement Bureau
could use to judge the satisfactory resolution of an outstanding issue
such that the shot clock could be resumed? Further, we propose to alert
parties to a pause in the shot clock (and to a resumption of the shot
clock) via written notice to the parties. We seek comment on this
proposal.
50. Establishment of Pre-Complaint Procedures. We seek comment on
whether we should require the parties to resolve procedural issues and
deadlines in a meeting to be held either remotely or in person prior to
the filing of the pole access complaint (and prior to the starting of
the shot clock). We seek comment on the types of issues that the
parties should resolve in a pre-complaint meeting. We note that it has
been our standard practice to request that parties participate in pre-
complaint meetings in order to resolve procedural issues and deadlines;
we find that the complaint process has proceeded much more smoothly as
a result. We seek comment on the benefits and drawbacks of requiring a
pre-complaint meeting and ask whether there are any state pre-complaint
procedures that could inform the rules that we develop.
51. Use of Shot Clock for Other Pole Attachment Complaints. We seek
comment on whether the Commission should adopt a 180-day shot clock for
pole attachment complaints other than those relating to access. We also
request comment on whether the length of time to resolve other pole
attachment complaints has stymied the deployment of broadband
infrastructure. We additionally seek comment on reasonable alternatives
to a 180-day shot clock and ask whether there are state shot clocks for
other pole attachment complaints that could help inform our review.
Should the procedures set forth above for pole access complaints also
apply to other pole attachment complaints? What alternatives could we
adopt that would further streamline the pole attachment complaint
process?
[[Page 22462]]
D. Reciprocal Access to Poles Pursuant to Section 251
52. Background. Section 251 of the Act provides that ``[e]ach local
exchange carrier'' has the duty ``to afford access to the poles, ducts,
conduits, and rights-of-way of such carrier to competing providers of
telecommunications services on rates, terms, and conditions that are
consistent with section 224 [of this Act].'' Section 224(a) defines a
``utility'' that must provide telecommunications carriers
nondiscriminatory pole access at regulated rates to include both
incumbent LECs and competitive LECs. However, the definition of
``telecommunications carrier'' used in section 224 ``does not include''
incumbent LECs, thus denying incumbent LECs the benefits of section
224's specific protections for carriers.
53. According to CenturyLink, the disparate treatment of incumbent
LECs and competitive LECs in section 224(a) prevents incumbent LECs
from gaining access to competitive LEC-controlled infrastructure and in
doing so dampens the incentives for all local exchange carriers to
build and deploy the infrastructure necessary for advanced services.
The Commission initially examined this issue during its implementation
of the 1996 Act in the 1996 Local Competition Order, where it
determined that section 251 cannot ``[restore] to an incumbent LEC
access rights expressly withheld by section 224.'' The Ninth Circuit
Court of Appeals disagreed in dicta, noting that sections 224 and 251
could ``be read in harmony'' to support a right of access for incumbent
LECs on other LEC poles. Despite its skepticism of the Commission's
analysis in the 1996 Local Competition Order, the Ninth Circuit held it
was obligated to adhere to that analysis because the parties had not
directly challenged the 1996 Local Competition Order via the Hobbs Act.
CenturyLink requests the Commission revisit our interpretation. Other
commenters in the latest Biennial Review contend that the Commission's
interpretation remains valid given incumbent LECs' ``first-mover
advantage'' and ``the ability of large incumbent LECs to abuse their
market positions to foreclose competition.''
54. Discussion. We seek comment on reading the statutes in harmony
to create a reciprocal system of infrastructure access rules in which
incumbent LECs, pursuant to section 251(b)(4) of the Act, could demand
access to competitive LEC poles and vice versa, subject to the rates,
terms, and conditions described in section 224. Further, we seek
comment on necessary amendments to our rules to effectuate the changed
interpretation in the event we decide to do so. We also seek comment on
how similar the rules for incumbent LEC access under section 251 must
be to those for other carriers under section 224 for the rules to be
``consistent'' with each other.
55. Additionally, we seek comments and data that will help
establish how often incumbent LECs request access to competitive LEC
infrastructure. How often do incumbent LECs request access to
infrastructure controlled by competitive LECs, how frequently are
incumbent LECs denied access, and how much of an effect does this have
on competition and broadband deployment? Would the frequency of
incumbent LEC requests for access to competitive LEC poles change if we
decide to change our interpretation, and how would that impact
broadband deployment?
III. Expediting the Copper Retirement and Network Change Notification
Process
56. Section 251 of the Act imposes specific obligations on
incumbent LECs to promote competition so as to allow industry to bring
``increased innovation to American consumers.'' To that end, section
251(c)(5) and the Commission's part 51 implementing rules require
incumbent LECs to provide public notice of network changes, including
copper retirement, that would affect a competing carrier's performance
or ability to provide service. We propose revisions to our Part 51
network change disclosure rules to allow providers greater flexibility
in the copper retirement process and to reduce associated regulatory
burdens, to facilitate more rapid deployment of next-generation
networks. We also seek comment on streamlining and/or eliminating
provisions of the more generally applicable network change notification
rules.
A. Copper Retirement
57. We seek comment on revisiting our copper retirement and notice
of network change requirements to reduce regulatory barriers to the
deployment of next-generation networks. First, we seek comment on
eliminating some or all of the changes to the copper retirement process
adopted by the Commission in the 2015 Technology Transitions Order. We
seek comment on the Commission's authority to impose the copper
retirement notice requirements adopted in the 2015 Technology
Transitions Order. Among other things, the new rules doubled the time
period during which an incumbent LEC must wait to implement a planned
copper retirement after the Commission's release of public notice from
90 days to 180 days, required direct notice to retail customers,
states, Tribal entities, and the Secretary of Defense, and expanded the
types of information that must be disclosed.
58. Repeal of Section 51.332 and Return to Prior Short-Term Network
Change Notification Rule. We seek comment on how best to handle
incumbent LEC copper retirements going forward to prevent unnecessary
delay and capital expenditures on this legacy technology while
protecting consumers. First, we seek comment on eliminating section
51.332 entirely and returning to a more streamlined version of the pre-
2015 Technology Transitions Order requirements for handling copper
retirements subject to section 251(c)(5) of the Act. Specifically,
prior to the 2015 Technology Transitions Order, incumbent LEC copper
retirement notices of less than six months were regulated under the
more flexible Commission rule that applied to short-term network change
notices. We seek comment on whether to repeal section 51.332 and
whether to reinstate the prior copper retirement notice rules. Have the
delays and increased burdens introduced by the revised rules hindered
next-generation network investment? Have the changes been effective in
protecting competition and consumers? What are their costs and
benefits? Would adopting our pre-2015 rule, without modification,
provide incumbent LECs with sufficient flexibility to facilitate their
transition to next-generation networks? Should we retain our existing
rule in substantially similar format?
59. The 2015 Technology Transitions Order eliminated the process by
which competitive LECs can object to and seek to delay an incumbent
LEC's planned copper retirement when it increased the ``deemed
approved'' timeframe from 90 to 180 days. If we return incumbent LEC
copper retirements to the prior network notification process, should we
nonetheless retain this change, and, if so, how should we incorporate
it into our rules? Is some other notice timeframe more appropriate?
60. The 2015 Technology Transitions Order also adopted an expanded
definition of copper retirement that added (1) the feeder portion of
copper loops and subloops, previously excluded, and (2) ``the failure
to maintain copper loops, subloops, or the feeder portion of such loops
or subloops that is the functional equivalent of removal or
disabling''--i.e., de facto
[[Page 22463]]
retirement. Maintenance of existing copper facilities remains a concern
when an incumbent LEC does not go through the copper retirement
process. If we return incumbent LEC copper retirements to the prior
network notification process, should we nonetheless retain this
expanded definition?
61. The 2015 Technology Transitions Order also broadened the
recipients of direct notice from ``each telephone exchange service
provider that directly interconnects with the incumbent LEC's network''
to ``each entity within the affected service area that directly
interconnects with the incumbent LEC's network.'' It also added a
notice requirement to the Secretary of Defense as well as the state
public utility commission, Governor of the State, and any Tribal entity
with authority over Tribal lands in which the copper retirement is
proposed. Have these direct notice changes adopted by the Commission
meaningfully promoted facilities investment or preserved competition in
the provision of next-generation facilities, and what costs have the
changes imposed? Have these direct notice changes meaningfully promoted
understanding and awareness of copper retirements and their impacts,
and what have been the benefits of these changes? Returning to a
version of our pre-2015 copper retirement rules would reduce the number
of direct notice recipients from ``each entity'' to ``each telephone
exchange service provider,'' and eliminate the other expanded notice
requirements from the 2015 Technology Transitions Order. We seek
comments on the effects of such a change.
62. Full Harmonization with General Network Change Notification
Process. Alternatively, we seek comment on eliminating all differences
between copper retirement and other network change notice requirements,
rendering copper retirement changes subject to the same long-term or,
where applicable, short-term network change notice requirements as all
other types of network changes subject to section 251(c)(5). Even under
the Commission's rules prior to the 2015 Technology Transitions Order,
there were differences in the treatment of copper retirements and other
short-term network change notices. Whereas short-term network change
notices become effective ten days after Commission issuance of a public
notice, copper retirement notices became effective ninety days
thereafter. Moreover, an objection to a copper retirement notice was
deemed denied 90 days after the Commission's public notice absent
Commission action on the objection, while there is no ``deemed denied''
provision for other short-term network change objections. Is there a
basis to continue to have a different set of network change
requirements for copper retirement? In this regard, we note that the
transition from copper to fiber has been occurring for well more than a
decade now. We anticipate that interconnecting carriers are aware that
copper retirements are inevitable and that they should be familiar by
now with the implications of and processes involved in accommodating
such changes. We seek comment on this expectation.
63. Modification of section 51.332. A second alternative to
eliminating section 51.332 entirely would be to retain but amend
section 51.332 to streamline the process, provide greater flexibility,
and reduce burdensome requirements for incumbent LEC copper
retirements. We seek comment on how we should change the rule to afford
flexibility and maximize incentives to deploy next-generation
facilities. We seek comment on whether we should adopt these changes,
and whether additional or different changes should also be adopted:
Requiring an incumbent LEC to serve its notice only to
telephone exchange service providers that directly interconnect with
the incumbent LEC's network, as was the case under the predecessor
rules, rather than ``each entity within the affected service area that
directly interconnects with the incumbent LEC's network.''
Reducing the waiting period to 90 days from 180 days after
the Commission releases its public notice before the incumbent LEC may
implement the planned copper retirement.
Providing greater flexibility regarding the time in which
an incumbent LEC must file the requisite certification.
Reducing the waiting period to 30 days where the copper
facilities being retired are no longer being used to serve any
customers in the affected service area.
Should we adopt different timing thresholds than those specified
above, and if so, what thresholds and why would different thresholds be
better? Should we reduce the waiting period to one month and remove the
notification requirements in emergency situations? Should we modify the
existing requirements for the content of the notice, and if so, how?
Have competitive LECs availed themselves of the good faith
communication requirement, and if so, has that requirement caused any
difficulties? If we eliminate the good faith communication requirement,
should we include an objection period, and what form should it take?
Alternatively, should we retain the good faith communication
requirement and not include an objection period?
64. If we modify section 51.332, we seek comment on eliminating the
requirement that incumbent LECs provide direct notice of planned copper
retirements to retail customers, both residential and non-residential.
Specifically, we seek comment on eliminating sections 51.332(b)(3),
(c)(2), (d)(6)-(8), and (e)(3)-(4). What would be the likely impact of
eliminating such notice to consumers, including consumers who have
disabilities and senior citizens? How do the benefits of notification
compare with the costs in terms of slower transitions to next-
generation networks? Are there alternative ways in which the Commission
can streamline these retail customer notice rules to make the process
more flexible and less burdensome on carriers retiring their copper,
while still ensuring consumers are protected? Finally, how, if at all,
should we modify the requirements for providing notice under current
section 51.332(b)(4) to the states, Tribal entities, and the Secretary
of Defense?
65. Additional Considerations. We seek comment on additional
methods by which we can provide further flexibility in the copper
retirement process in conjunction with or separate from the proposals
described above while still affording interconnecting entities and
other impacted parties the notice they need. For instance, should the
Commission consider an even shorter waiting period in certain
circumstances, and if so, in what circumstances and how much shorter?
How, if at all, should that affect the timing for filing the required
certification? Are there any other measures we could take to make the
copper retirement process less burdensome on carriers? Are there any
other measures we could take to make the copper retirement process more
helpful for consumers and other impacted parties? Are any technical
changes to our rules necessary to accommodate reforming the copper
retirement process? For example, should we revise section 51.329(c)(1)
to eliminate the titles specific to copper retirement notices, if there
would no longer be a defined term?
B. Network Change Notifications Generally
66. Next, we seek comment on methods to reduce the burden of our
network change notification processes generally. The Commission's
network
[[Page 22464]]
change notification process is the process by which incumbent LECs
provide ``reasonable public notice of changes in the information
necessary for the transmission and routing of services using that local
exchange carrier's facilities or networks, as well as of any other
changes that would affect the interoperability of those facilities and
networks.'' Aside from the copper retirement notice expansions adopted
by the 2015 Technology Transitions Order, we last revisited our general
section 251(c)(5) rules in 2004. Do changes to the telecommunications
marketplace since that time warrant changes to these rules, more
generally, and if so, what changes? We seek comment on two specific
changes below and invite commenters to identify other possible reforms
to our network change notification processes.
67. Section 51.325(c). We specifically propose eliminating section
51.325(c) of our rules, which prohibits incumbent LECs from disclosing
any information about planned network changes to affiliated or
unaffiliated entities prior to providing public notice. We seek comment
on this proposal. This prohibition appears to unnecessarily constrain
the free flow of useful information that such entities may find
particularly helpful in planning their own business operations. We seek
comment on this view. Alternatively, we could revise section 51.325(c)
of our rules to permit disclosures to affiliated and unaffiliated
entities, but only to the extent that the information disclosed is what
the incumbent LEC would include in its required public notice under
section 51.327. A third possibility would be to revise section
51.325(c) to allow such disclosure, but only to the extent the carrier
makes such information available to all entities that would be entitled
to direct notice of the network change in question. We seek comment on
these proposals and any other alternative approaches. If we permit
disclosure to affiliated or unaffiliated entities prior to public
notice, should we specify any particular timeframe within which public
notice must follow?
68. What are the potential advantages and disadvantages of
eliminating or revising section 51.325(c)? When this rule was first
adopted, the goal was to prevent ``preferential disclosure to selected
entities.'' Are these concerns still warranted? We anticipate that
providing incumbent LECs greater flexibility to disclose information
and discuss contemplated changes before cementing definitive plans
would benefit these carriers, interconnecting carriers, and any other
interested entities to which disclosure may be useful by providing all
such entities greater time to consider or respond to possible network
changes. We seek comment on this expectation. To the extent that
concerns about some entities receiving advanced notice remain
warranted, do any of the specific revisions proposed above obviate such
concerns, and if not, what approach can we adopt to address such
concerns while still introducing additional flexibility?
69. Objection Procedures. Should we revise or eliminate the
procedures set forth in section 51.333(c) of the Commission's rules by
which a telecommunications service provider or information service
provider that directly interconnects with the incumbent LEC's network
may object to the timing of short-term network changes? What costs, if
any, has the uncertainty introduced by this procedure imposed? What
public interest benefits are associated with this requirement? Have
competitive LECs made use of this procedure? Should we adopt a ``deemed
denied'' timeframe with respect to objections on which the Commission
has not acted within some specified timeframe? Should we revise the
objection procedure in any other way?
C. Section 68.110(b)
70. We seek comment on eliminating or modifying section 68.110(b)
of our rules, which requires that ``[i]f . . . changes [to a wireline
telecommunications provider's communications facilities, equipment,
operations or procedures] can be reasonably expected to render any
customer's terminal equipment incompatible with the communications
facilities of the provider of wireline telecommunications, or require
modification or alteration of such terminal equipment, or otherwise
materially affect its use or performance, the customer shall be given
adequate notice in writing, to allow the customer an opportunity to
maintain uninterrupted service.'' We seek comment on the benefits and
costs of the current rule and whether the benefits outweigh the costs.
How is such notice under that rule provided today, and specifically,
how would a carrier be able to know whether ``any'' terminal equipment
would be affected? Do customers still rely on or benefit from the
notice required by section 68.110(b)? To what extent do individuals
with disabilities still rely on TTYs or other specialized devices or
services in an analog environment? To what extent have individuals with
disabilities adopted alternative means of communications, whether using
telecommunications relay services, texting, videophones, or other
online communications? To what extent have such individuals relied on
terminal-equipment-incompatibility notices in the past, and are
alternative means available that would be more effective at targeting
affected individuals with disabilities? We seek comment on the benefits
and costs of the current rule and whether the benefits outweigh the
costs. Alternatively, should the rule be retained but certain types of
changes categorically exempted? The Commission's current copper
retirement rules require incumbent LECs to certify compliance with
section 68.110(b). If we eliminate section 68.110(b), we propose
eliminating this certification requirement, and we seek comment on this
proposal.
IV. Streamlining the Section 214(a) Discontinuance Process
71. Among other things, section 214(a) requires carriers to obtain
authorization from the Commission before discontinuing, reducing, or
impairing service to a community or part of a community. Note that for
convenience, in certain circumstances this NPRM uses ``discontinue''
(or ``discontinued'' or ``discontinuance,'' etc.) as shorthand that
encompasses the statutory terms ``discontinue, reduce, or impair''
unless the context indicates otherwise. With respect to section
214(a)'s discontinuance provision, generally, and the Commission's
implementing rules specifically, carriers have asserted ``that exit
approval requirements are among the very most intrusive forms of
regulation.'' In this section, we seek comment on targeted measures to
shorten timeframes and eliminate unnecessary process encumbrances that
force carriers to maintain legacy services they seek to discontinue.
72. We believe that modifying our discontinuance processing for
legacy systems to reduce burdens and protect customers will facilitate
carriers' ability to retire legacy network infrastructure and will
accelerate the transition to next generation IP-based networks. We seek
comment on this view.
A. Applications That ``Grandfather'' Existing Customers
73. Streamlining the Public Comment Period. We propose to
streamline the section 214(a) discontinuance process for applications
that seek authorization to ``grandfather'' low-speed legacy services
for existing customers. ``Grandfathering'' a service in section
[[Page 22465]]
214 parlance means that a carrier requests permission to stop accepting
new customers for the service while maintaining service to existing
customers. We specifically propose to reduce the public comment period
to a uniform 10 days for all applications seeking to grandfather legacy
low-speed services regardless of whether the provider filing the
application is a dominant or non-dominant carrier. We seek comment on
this proposal.
74. As a threshold matter, we seek comment on whether expediting
the review and authorization of applications to grandfather low-speed
services offers benefits to discontinuing carriers generally. Will
grandfathering a particular service create greater regulatory parity
for telecommunications carriers compared to other segments of the
industry? What sort of costs does such a requirement impose on carriers
and customers relative to the benefits it imparts? We believe that
section 214 provides us ample authority to implement the streamlining
measures we propose. We seek comment on this belief.
75. More specifically, we seek comment on the streamlined 10-day
comment period we have proposed. Will this comment period allow
adequate time for interested parties to review and consider
discontinuance applications from carriers and to file comments on these
applications, if necessary? Is there a different time period we should
consider, e.g., some temporal interval that is either shorter or longer
than the 10-day comment period we have proposed? Should we reduce the
time period for reviewing and granting applications to grandfather
higher-speed services as well, and if so, how? While we have proposed
to subject applications from both dominant and non-dominant carriers to
a uniform 10-day comment period, we seek comment on whether there is
reason to maintain disparate comment periods for dominant versus non-
dominant carriers in this context?
76. Streamlining the Auto-Grant Period. We propose that all
applications seeking to grandfather low-speed legacy services be
automatically granted on the 25th day after public notice unless the
Commission notifies the applicant that such a grant will not be
automatically effective. Under our current rules, an application by a
domestic, dominant carrier will be automatically granted on the 60th
day after its filing unless the Commission notifies the applicant that
the grant will not be automatically effective, whereas an application
by a domestic, non-dominant carrier will be automatically granted on
the 31st day after its filing unless the Commission notifies the
applicant that the grant will not be automatically effective. We seek
comment on this proposal. Like our proposed uniform 10-day comment
period for all applications to grandfather low-speed legacy services,
we see no reason to maintain disparate auto-grant periods for such
applications. Will this streamlined auto-grant period for carriers
allow adequate time for the Commission and other parties to review
their applications? Will the shorter auto-grant period incent providers
to more rapidly resolve end-user concerns, if any?
77. Is there a different auto-grant period we should consider when
reviewing applications to grandfather low-speed services, periods that
are either shorter or longer than the 25-day interval we have proposed?
Is there reason to maintain disparate auto-grant periods for dominant
versus non-dominant carriers rather than subject both types of carriers
to a uniform auto-grant period as we have proposed to do?
Alternatively, what role should an objection from a potential customer
or other interested party take in the application for grandfathering?
Should such an objection result in an application being taken off of
streamlined treatment?
78. In addition to potentially reducing the auto-grant period for
applications seeking to grandfather low-speed services, we seek comment
on whether to adopt an even more abbreviated auto-grant period for
grandfathered discontinuance applications that receive no comments
during the specified comment period. In conjunction with our efforts to
expedite the automatic granting of these applications, we seek comment
on whether we should establish a ``shot-clock'' applicable to the time
period within which the Commission receives applications to grandfather
low-speed legacy services and when the Commission releases the Public
Notice seeking comment on such applications. Have carriers filing
section 214 discontinuance applications experienced seemingly
unreasonable delay between the time the Commission receives their
applications and when they are placed on Public Notice?
79. Eligibility of Grandfathered Services for Streamlined
Processing. We seek comment on the scope of services to which
streamlined processing would apply. We propose, at a minimum, to apply
any streamlined discontinuance process to grandfathered low-speed TDM
services at lower-than-DS1 speeds (below 1.544 Mbps), as these are
services that are rapidly being replaced with more advanced or higher-
speed IP-based services. We seek comment on whether this is an
appropriate speed threshold, or whether higher-speed grandfathered
services--e.g., any legacy copper-based or other TDM services below 10
Mbps or 25 Mbps or even higher--should also qualify for this more
streamlined processing. Should we limit our streamlined comment and
auto-grant periods to a narrower set of circumstances than we propose?
Should we adopt a separate sets of auto-grant periods for lower and
higher speed services? Are there other service characteristics we
should consider besides speed in deciding which applications may
qualify for streamlined comment and auto-grant periods?
80. Additional Steps. Beyond condensing the comment and auto-grant
periods, we seek comment on any additional steps we might take to
further streamline the review and approval process for applications to
grandfather low-speed services. We specifically seek comment on whether
there are certain circumstances under which applications to grandfather
low-speed legacy services could be granted once the application is
accepted for filing without any period of public comment or under which
we should dispense with requiring applications entirely. Does the
Commission have authority under section 214(b) to permit grants without
any period of public comment or to determine that an application is not
necessary? Would limited forbearance from the requirements of section
214 be necessary to dispense with requiring an application or to grant
certain applications without any period of public comment, and if so,
are the criteria for forbearance met in this instance? Would pursuing
either of these options harm existing or potential customers, and if
so, do those harms outweigh the benefits of streamlining?
81. If the Commission grants certain applications to grandfather
low-speed services without a period of public comment, what criteria
should applications satisfy in order to qualify for such a grant? For
example, there may be cases in which the carrier has not sold the
service to any new customer for a particular period of time and only a
limited number of existing customers continue to take the service, and
we seek comment on whether there is a particular period of time and/or
number of customers that warrants automatic grant without a comment
period. Should such grants be contingent on a baseline showing,
attestation, or affirmative statement in a carrier's application that
there are reasonable alternatives to the service that is to be
grandfathered? If so, what type of
[[Page 22466]]
certification or showing should be required?
82. Government Users. Finally, we seek comment on how we should
take into account the needs of federal, state, local, and Tribal
government users of legacy services in deciding whether and how best to
streamline the process for reviewing section 214 applications that seek
to grandfather low-speed services. The National Telecommunications and
Information Administration (NTIA) has stated that federal government
agencies face particular challenges as customers of telecommunications
services and are different from many other customers given the budget
and procurement challenges they face and ``the mission-critical
activities they perform for the public benefit.'' In its Petition, NTIA
asserts that government agencies must make budgetary and technical
plans far in advance to convert or adapt their networks, systems, and
services to new infrastructure. We agree with NTIA that transitions
from the provision of old communications services to new ``must not
disrupt or hamper the performance of mission-critical activities, of
which safety of life, emergency response, and national security are the
most prominent examples.'' Further, Assignment of National Security and
Emergency Preparedness Communications Functions, Exec. Order 13,618, 3
CFR 273 (July 6, 2012), states the following as policy of the United
States: ``The Federal Government must have the ability to communicate
at all times and under all circumstances to carry out its most critical
and time sensitive missions. Survivable, resilient, enduring, and
effective communications, both domestic and international, are
essential to enable the executive branch to communicate within itself
and with: the legislative and judicial branches; State, local,
territorial, and tribal governments; private sector entities; and the
public, allies, and other nations. Such communications must be possible
under all circumstances to ensure national security, effectively manage
emergencies, and improve national resilience. The views of all levels
of government, the private and nonprofit sectors, and the public must
inform the development of national security and emergency preparedness
(NS/EP) communications policies, programs, and capabilities.'' To the
extent these proposed rules accelerate retirement of systems for
national security emergency preparedness (NS/EP) communication, we seek
comment on the impact to these capabilities. In particular, we seek
comment on what will be the impact to NS/EP priority services such as
the Government Emergency Telecommunications Service (GETS) and the
Telecommunications Service Priority (TSP) system? How will accelerating
copper retirement impact these policy goals? Should section 214
applications demonstrate how priority services will continue to be
provisioned to government users? How will the transition from the
provision of old services to new ones affect other national security
interests? How should we take into account the needs of potential
government and Tribal customers when considering whether and how to
streamline the comment and/or auto-grant periods for applications to
grandfather legacy services? Should applications affecting government
end users be eligible for any streamlined process we adopt? If we adopt
special requirements in relation to applications that may affect
government or Tribal users, how can we identify such applications,
given that grandfathering affects only non-customers of the service at
issue?
83. NTIA suggests that the Commission must ensure that carriers
provide information to federal agencies, including the direction and
pace of any network changes, so that agencies are able to plan and fund
the service, equipment, and systems upgrades needed to maintain
critical operations without interruption. NTIA asks that the Commission
require carriers to state in their section 214 discontinuance
applications: (1) whether and to what extent they have discussed the
proposed network or service change with affected federal customers; and
(2) what actions they have taken or what plans, if any, they have made
to ensure the continuity of mission-critical agency communications
networks, systems, and services.
84. We seek comment on this proposal both in general and in the
context of our section 214 proposals herein. How would such
requirements benefit federal customers, and would such requirements
benefit others in the communications ecosystem? How could we measure
compliance with any such requirements? Would such requirements prove
unduly burdensome on carriers relative to any potential benefit for
government users? We seek comment on whether the service agreements or
contracts into which carriers enter with government entities could
sufficiently include provisions that address the types of concerns NTIA
raises generally. With respect to grandfathering, would prong (1) of
NTIA's proposed certification have any relevance since it is addressed
to present customers, and how could carriers undertake the consultation
described in prong (2)? Are there specific concerns applicable to
Tribal, state, or local government customers? If so, would the NTIA
proposal address them? If not, what additional or alternative steps
would?
B. Applications To Discontinue Previously Grandfathered Legacy Data
Services
85. We propose to streamline the discontinuance process for any
application seeking authorization to discontinue legacy data services
that have previously been grandfathered for a period of no less than
180 days. We propose to adopt a streamlined uniform comment period of
10 days and an auto-grant period of 31 days for both dominant and non-
dominant carriers. We seek comment on these proposals and on other
potential alternatives. We believe that section 214 provides us ample
authority to streamline the process for reviewing and granting
applications to discontinue legacy data services that have previously
been grandfathered for a period of at least 180 days. Do commenters
agree with this conclusion? Why or why not?
86. Should this proposed streamlined process be restricted to only
previously grandfathered legacy data services below a certain speed?
Should dominant and non-dominant carriers continue to be subject to
different comment and auto-grant timeframes for discontinuing legacy
data services that have previously been grandfathered, as is currently
the case? If so, what should these timeframes be? We encourage
commenters to advance specific alternative proposals they believe would
better address the Commission's objective to accelerate the deployment
of next-generation networks by eliminating unnecessary delays in the
discontinuance process. To that end, are there other steps we could
take, beyond condensing the comment and auto-grant periods, which would
help streamline the review and authorization of applications to
discontinue legacy data services that have previously been
grandfathered? Please explain.
87. We propose to require carriers seeking this streamlined
discontinuance processing for legacy data services to make a showing
that they received Commission authority to grandfather such services at
least 180 days previously. Is the 180-day grandfathering requirement
too restrictive? Should we consider a shorter grandfathering timeframe?
Should we require any additional showings to qualify for this
streamlined treatment? For example, should we
[[Page 22467]]
require a statement identifying one or more alternative comparable data
services available from the discontinuing provider or a third party
provider at the same or higher speeds as the service being
discontinued? If so, how should we define ``comparable'' service?
Should we require that any such ``comparable'' service be available
throughout the entire affected service area?
88. We also propose to require only a statement from the
discontinuing carrier demonstrating that it received Commission
authority to grandfather the services at issue at least 180 days
previously. Is a statement sufficient, or should some other showing be
required? If commenters believe we should require more than a
statement, what type of showing should a carrier be obligated to make?
If we adopt a requirement that carriers must demonstrate the
availability of one or more alternative comparable data services from
the discontinuing provider or a third party, would a statement
identifying such alternative services be sufficient to satisfy this
requirement? For carriers seeking to rely on a third-party service,
what type of showing would be necessary to demonstrate the existence of
alternative data services? Would such a statement suffice for this
purpose?
89. Finally, we seek comment on whether special consideration
should be given to applications seeking to discontinue previously
grandfathered legacy data services to federal, state, local, and Tribal
government users for the same reasons we address this question in
considering streamlining grandfathered and legacy voice service
discontinuance applications. Should providers be required to make some
additional showing beyond what we have proposed when seeking to
discontinue previously grandfathered legacy data services to government
users? If so, with what additional conditions should they be required
to comply and why?
C. Clarifying Treatment Under Section 214(a) of Carrier-Customers' End
Users
90. We seek comment on reversing the Commission's 2015
``clarification'' of section 214(a) that substantially expanded the
scope of end users that a carrier must consider in determining whether
it is required to obtain section 214 discontinuance authority. In the
2015 Technology Transitions Order, the Commission ``provided guidance
and clarification'' that section 214(a) of the Act applies not only to
a carrier's own retail customers, but also to the retail end-user
customers of that carrier's wholesale carrier-customers. We seek
comment on our proposal to reverse the 2015 interpretation and, going
forward, interpret section 214(a) to require a carrier to take into
account only its own retail end users when evaluating whether the
carrier will ``discontinue, reduce, or impair service to a community,
or part of a community.''
91. We seek comment on the practical effect of the 2015
interpretation. What benefits flow to the retail end-user customers of
the carrier's wholesale carrier customers as a result of that
interpretation? Does it make sense to take away those benefits? Does it
make sense to maintain a regulatory obligation that requires a carrier,
most often an incumbent LEC, to obtain information about third parties,
i.e., its carrier-customer's retail end users, with whom it generally
has no relationship, before it can execute its own business plans to
discontinue its service? What can the upstream carrier be expected to
know about who the end-user customers of its carrier-customers are and
how the discontinuance will affect them? Does the current application
of the requirement impose undue compliance costs and burdens on a
discontinuing carrier that harm the public by delaying the transition
to newer, more technologically advanced services? Or, are those costs
reasonable in light of the potential harm to end-user customers? Have
there been other effects on the market for legacy services and on the
transition to IP services that we should consider?
92. We also seek comment on how carrier-customers' discontinuance
obligations should inform our interpretation. What weight should we
give to the fact that a carrier-customer is itself obligated to file a
discontinuance application under section 214(a) of the Act and section
63.71 of the Commission's rules if it discontinues, reduces, or impairs
service as a result of the loss of a wholesale input from an upstream
carrier? Can we find that the objectives of section 214(a) are met
because the carrier-customer itself is subject to section 214(a)'s
requirement to obtain Commission approval if a change in the inputs
relied on by the carrier-customer results in a discontinuance,
reduction, or impairment of services to the carrier-customer's retail
end users? Or, are there situations in which end-user customers would
be inadequately protected by such an interpretation? Do the contractual
and business relationships between upstream carriers and their carrier-
customers provide additional safeguards to retail end users?
93. We also seek comment on the relationship between sections
214(a) and 251(c)(5) of the Act. When section 214(a) was enacted during
World War II, ``one of Congress's main concerns was that [domestic
telegraph] mergers might result in a loss or impairment of service
during this war time period.'' By contrast, 53 years later, Congress
revised the Act ``to promote competition and reduce regulation . . .
and encourage the rapid deployment of new telecommunications
technologies.'' Congress enacted section 251(c)(5) of the Act to
require incumbent LECs to ``provide reasonable public notice of changes
in the information necessary for the transmission and routing of
services using that local exchange carrier's facilities or networks, as
well as of any other changes that would affect the interoperability of
those facilities and networks.'' The Commission's regulations
implementing section 251(c)(5), require, among other things, that an
incumbent LEC ``must provide public notice regarding any network change
that [w]ill affect a competing service provider's performance or
ability to provide service.'' In enacting section 251(c)(5), did
Congress signal its intent that incumbent LECs need only provide
notice, not obtain approval, when making changes to wholesale inputs
relied upon by competing carriers? At the time of the 1996 Act, the
Commission interpreted its section 214(a) discontinuance authority not
to apply to wholesale customers. Did that interpretation have any
bearing on Congress's intent when enacting section 251(c)(5)? How
should we reconcile the Congressional mandates in sections 214(a) and
251(c)(5) of the Act to best eliminate regulatory barriers to the
deployment of next-generation networks and services, avoid unnecessary
capital expenditure on legacy services, and protect consumers and the
public interest? Alternatively, was the Commission's statutory
interpretation in the 2015 Technology Transitions Order correct? Are
there other interpretations of the interaction between these two
provisions that would be more consistent with Congressional intent? If
so, what are they?
94. Finally, we seek comment on whether the Commission correctly
interpreted the precedent upon which it relied to support its expansive
2015 clarification. Prior to the 2015 Technology Transitions Order, it
appears that the Commission had held that discontinuances to wholesale
purchasers were not cognizable under section 214(a). The 2015
Technology Transitions Order acknowledges that
[[Page 22468]]
distinction, stating in a footnote that ``[t]he Commission will . . .
continue to distinguish discontinuance of service that will affect
service to retail customers from discontinuances that affect only the
carrier-customer itself.'' Relying on BellSouth Telephone, however, the
Commission adopted the view that upstream carriers have responsibility
for carrier-customers' end-user customers under section 214(a). Did the
Commission correctly interpret BellSouth Telephone, particularly in
light of the facts of that case? Did the Commission incorrectly read
BellSouth Telephone to protect the business models of certain
downstream retail carriers, regardless of the availability of the same
or comparable alternatives in the community? All of the other cases
cited in the 2015 Technology Transitions Order found that section
214(a) did not apply. Accordingly, did the Commission properly
interpret and rely on those cases? Considering that all but one of the
cases predated the adoption of the 1996 Act and its specific
protections for wholesale customers, including section 251(c)(5), what
continuing probative value do the cases have? Indeed, the only
Commission precedent cited in the 2015 Technology Transitions Order
that postdated the 1996 Act did not explicitly consider the
applicability of section 251(c)(5). Did the Commission grant to
carrier-customers in 2015 rights beyond Congress's intent in the 1996
Act in an attempt to protect carrier-customers' end users, even though
those end users have the benefit of the section 214(a) discontinuance
process from their own provider? What is the proper interplay between
sections 251 and 214 in this context?
D. Other Part 63 Proposals
95. Further Streamlining of 214(a) Discontinuances. In addition to
the proposals discussed above, we seek comment on methods to streamline
section 214(a) applications more generally. Specifically, we seek
comment on whether it would be appropriate for the Commission to
conclude that section 214(a) discontinuances will not adversely affect
the present or future public convenience and necessity, provided that
fiber, IP-based, or wireless services are available to the affected
community. What type of showing would be required on the part of
discontinuing carriers to demonstrate the existence of alternative
services? What types of fiber, IP-based, or wireless services would
constitute acceptable alternatives, and under what circumstances? Would
a demonstration regarding the availability of third-party services
satisfy this kind of test, or would only services offered by the
discontinuing carrier suffice?
96. We also seek comment on the best approach for granting
streamlined treatment to these types of discontinuances. In
circumstances where a discontinuing carrier's service overlaps with an
alternative fiber, IP-based, or wireless service, should we require a
section 214 discontinuance application? If not, should we either grant
limited blanket discontinuance authority or forbear on a limited basis
from section 214? If we require an application, would a grant of the
section 214 application upon acceptance for filing be appropriate or
would allowing for public notice and comment be necessary to satisfy
the requirements of section 214(a)? If we maintain a comment period,
should we reduce the comment and automatic grant timeframe? As another
alternative, should we instead require carriers to file only a notice
of discontinuance accompanied by proof that fiber, IP-based, or
wireless alternatives are available to the affected community, in lieu
of a full application for approval? If so, what proof would suffice,
and how should the Commission review that filing?
97. Section 63.71(g) Applications to Discontinue Service With No
Customers. We specifically propose to maintain but modify the provision
adopted in the 2016 Technology Transitions Order for streamlined
treatment of section 214 discontinuance applications for all services
that have not had customers for a period of six months prior to
submission of the application. Under this rule, which was based on a
proposal submitted to the Commission by AT&T, carriers may certify to
the Commission that the service to be discontinued is ``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,'' and the application will be granted
automatically on the 31st day after filing, unless the Commission has
notified the applicant that the grant will not be automatically
effective. We note that at least one carrier representative has
recently endorsed this provision of the rules adopted in the 2016
Technology Transitions Order as an effective tool for reducing barriers
to next generation infrastructure deployment. We propose to shorten the
timeframe during which a carrier must demonstrate that it has had no
customers for a given service, from 180 days to 60 days, and seek
comment on this modification. Because this proposed rule applies only
to services without customers, consumer harm from further streamlining
these kinds of discontinuance applications appears unlikely. We seek
comment on retaining and modifying section 63.71(g) as proposed, and on
any other additions or amendments to the rule, such as shortening the
time in which the application is automatically granted, that may
further our goal of removing regulatory barriers to broadband
investment. Would a different timeframe during which a carrier must
demonstrate that it has had no customers be more appropriate to balance
the interests of discontinuing carriers and potential consumers of
these services?
98. Section 63.71(i) Auto-grants for Competitive LECs Upon Copper
Retirement. We seek comment on revising section 63.71(i), which was
adopted in the 2016 Technology Transitions Order to provide for
automatic discontinuance authority, subject to certain conditions, for
competitive LECs that must discontinue service on a date certain due to
an incumbent LEC's effective copper retirement. Specifically, to the
extent we eliminate section 51.332, we seek comment on revising section
63.71(i) to include as a condition that the relevant network change
notice provides no more than six months' notice. We also seek comment
on how, if at all, we should modify section 63.71(i) to further
harmonize it with any revisions we adopt herein to the incumbent LEC
copper retirement process under Part 51 of our rules. We seek to ensure
our rules take into account situations, where, through no fault of its
own, a competitive LEC is unable to comply with our section 214(a)
discontinuance requirements as a result of an incumbent LEC's
transition to a next-generation network. To the extent we reduce the
waiting period for implementing planned copper retirements, would this
eliminate the need for or necessitate any changes to section 63.71(i)?
99. 2016 Technology Transitions Order Revisions to Sections
63.71(a)-(b). We seek comment on whether we should retain, modify, or
eliminate the changes made by the 2016 Technology Transitions Order to
section 63.71(a) and the introduction of new section 63.71(b). The 2016
Technology Transitions Order modified section 63.71(a) by requiring
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. It
[[Page 22469]]
also modified section 63.71(a) to clearly permit carriers to provide
email notice to customers of discontinuance applications, and it
established requirements in section 63.71(b) that carriers must meet
when using email to satisfy the written notice requirements.
V. Initial Regulatory Flexibility Analysis
100. As required by the Regulatory Flexibility Act (RFA), the
Commission has prepared this present Initial Regulatory Flexibility
Analysis (IRFA) of the possible significant economic impact on small
entities by the policies and rules proposed in this NPRM. Written
public comments are requested on this IRFA. Comments must be identified
as responses to the IRFA and must be filed by the deadlines for
comments provided in paragraph 133 of this NPRM. The Commission will
send a copy of this NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small Business Administration (SBA).
A. Need for, and Objectives of, the Proposed Rules
101. The NPRM proposes new steps designed to accelerate the
deployment of next-generation networks and services by removing
barriers to infrastructure investment. Access to high speed broadband
creates economic opportunity, enabling entrepreneurs to create
businesses, immediately reach customers throughout the world and
revolutionize entire industries. This proceeding aims to better enable
broadband providers to build, maintain, and upgrade their networks,
which will spur job growth and ultimately lead to more affordable and
accessible Internet access and other broadband services for all
Americans. Today's action proposes to remove regulatory barriers to
infrastructure at the state and local level, proposes changes to speed
the transition from copper networks and legacy services to next-
generation networks and services dependent on fiber, and proposes to
reform Commission regulations that are raising costs and slowing
broadband deployment rather than facilitating it. Thus, the Commission
seeks comment on a variety of issues in the following areas.
102. First, the NPRM proposes and seeks comment on changes to the
Commission's pole attachment rules that would: (1) Adopt a streamlined
timeframe for gaining access to utility poles; (2) reduce charges paid
by attachers to utilities for work done to make a pole ready for new
attachments; (3) codify the elimination of certain capital costs from
the formulas used to confirm the reasonableness of rates charged by
utilities for pole attachments by telecommunications and cable
providers; (4) establish a 180-day shot clock for Commission
consideration of pole attachment complaints; (5) adopt a formula for
computing the maximum pole attachment rate that may be imposed on an
incumbent LEC, and (6) adopt rules that would interpret the
interconnection rules for telecommunications carriers in section 251 of
the Act and the pole attachment rules of section 224 in a manner that
allows for competitive LECs to demand access to incumbent LEC poles and
vice versa.
103. Second, the NPRM seeks comment on changing the Commission's
Part 51 copper retirement rules to expedite the copper retirement
process and reduce associated regulatory burdens to facilitate more
rapid deployment of next-generation networks, as well a proposal and
other potential changes to streamline and/or eliminate provisions of
the more generally applicable network change notification rules. It
also seeks comment on eliminating section 68.110(b) of the Commission's
rules.
104. Third, the NPRM seeks comment on proposals to streamline the
section 214(a) discontinuance process by reducing the comment and
automatic-grant timeframes for two specific categories of
discontinuance applications: ``Grandfathered'' low-speed legacy
services for existing customers, and legacy data services that have
been grandfathered for a period of no less than 180 days. Fourth, the
NPRM seeks comment on reversing the Commission's 2015 ``carrier-
customer's retail end user'' interpretation of the scope of section
214(a) discontinuance authority.
105. Fifth, the NPRM seeks comment on other section 63.71 changes
to further streamline the section 214 (a) discontinuance process for
carriers.
B. Legal Basis
106. The proposed action is authorized under sections 1, 2, 4(i),
214, 224, 251, and 253 of the Communications Act of 1934, as amended;
47 U.S.C. 151, 152, 154(i), 214, 224, 251, 253.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
107. The RFA directs agencies to provide a description and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules and by the rule revisions on which the
NPRM seeks comment, 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. A ``small-business concern'' is one which: (1) Is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
108. The majority of our proposals and the changes on which we seek
comment in the NPRM will affect obligations on incumbent LECs and, in
some cases, competitive LECs. Certain pole attachment proposals also
would affect obligations on utilities that own poles,
telecommunications carriers and cable television systems that seek to
attach equipment to utility poles, and other LECs that own poles. The
definitions of utility and telecommunications carrier for purposes of
our pole attachment rules are found in 47 U.S.C. 224(a)(1) and (a)(5),
respectively. Our actions, over time, may affect small entities that
are not easily categorized at present. Other entities, however, that
choose to object to network change notifications for copper retirement
under the changes on which we seek comment and section 214
discontinuance applications may be economically impacted by the
proposals in this NPRM.
109. Small Businesses, Small Organizations, and Small Governmental
Jurisdictions. Our action may, over time, affect small entities that
are not easily categorized at present. We therefore describe here, at
the outset, three comprehensive, statutory small entity size standards
that encompass entities that could be directly affected by the new and
revised rules adopted today. According to the most currently available
SBA data, there are 28.8 million small businesses in the U.S., which
represent 99.9% of all businesses in the United States. Additionally, a
``small organization'' is generally ``any not-for-profit enterprise
which is independently owned and operated and is not dominant in its
field.'' Nationwide, as of 2007, there were approximately 1,621, 215
small organizations. Finally, the term ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' Census
Bureau data for 2012 indicate that there were 89,476
[[Page 22470]]
governmental jurisdictions in the United States. We estimate that, of
this total, as many as 88,718 entities may qualify as ``small
governmental jurisdictions.'' Thus, we estimate that most governmental
jurisdictions are small.
110. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as ``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 communications
networks. Transmission facilities may be based on a single technology
or a combination of technologies. Establishments in this industry use
the wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution, and wired broadband internet services. By exception,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
this industry.'' 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. Census data for 2012 shows
that there were 3,117 firms that operated that year. Of this total,
3,083 operated with fewer than 1,000 employees. Thus, under this size
standard, the majority of firms in this industry can be considered
small.
111. 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 NAICS
Code category is for Wired Telecommunications Carriers, as defined in
paragraph 12 of this IRFA. Under that size standard, such a business is
small if it has 1,500 or fewer employees. Census data for 2012 show
that there were 3,117 firms that operated that year. Of this total,
3,083 operated with fewer than 1,000 employees. The Commission
therefore estimates that most providers of local exchange carrier
service are small entities that may be affected by the rules adopted.
112. 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 NAICS Code category is Wired Telecommunications Carriers as
defined in paragraph 13 of this IRFA. Under that size standard, such a
business is small if it has 1,500 or fewer employees. According to
Commission data, 3,117 firms operated in that year. Of this total,
3,083 operated with fewer than 1,000 employees. Consequently, the
Commission estimates that most providers of incumbent local exchange
service are small businesses that may be affected by the rules and
policies adopted. One thousand three hundred and seven (1,307)
Incumbent Local Exchange Carriers reported that they were incumbent
local exchange service providers. Of this total, an estimated 1,006
have 1,500 or fewer employees.
113. 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 NAICS Code category is Wired
Telecommunications Carriers, as defined in paragraph 12 of this IRFA.
Under that size standard, such a business is small if it has 1,500 or
fewer employees. U.S. Census data for 2012 indicate that 3,117 firms
operated during that year. Of that number, 3,083 operated with fewer
than 1,000 employees. Based on this data, the Commission concludes that
the majority of Competitive LECs, CAPs, Shared-Tenant Service
Providers, and Other Local Service Providers are small entities.
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. 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
this total, 70 have 1,500 or fewer 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 the adopted rules.
114. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA has developed a definition for Interexchange Carriers. The closest
NAICS Code category is Wired Telecommunications Carriers as defined in
paragraph 13 of this IRFA. The applicable size standard under SBA rules
is that such a business is small if it has 1,500 or fewer employees.
According to Commission data, 359 companies reported that their primary
telecommunications service activity was the provision of interexchange
services. Of this total, 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 interexchange service providers are
small entities that may be affected by rules adopted.
115. 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 NAICS Code category
is for Wired Telecommunications Carriers, as defined in paragraph 13 of
this IRFA. Under that size standard, such a business is small if it has
1,500 or fewer employees. Census data for 2012 shows that there were
3,117 firms that operated that year. Of this total, 3,083 operated with
fewer than 1,000 employees. Thus, under this category and the
associated small business size standard, the majority of Other Toll
Carriers can be considered small. 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. Consequently, the
Commission estimates that most Other Toll Carriers that may be affected
by our rules are small.
116. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves, such as cellular services, paging services, wireless internet
access, and wireless video services. The appropriate size standard
under SBA rules is that such a business is small if it has 1,500 or
fewer employees. For this industry, Census data for 2012 show that
there were 967 firms that operated for the entire year. Of this total,
955 firms had fewer than 1,000 employees. Thus under this category and
the associated size standard, the Commission estimates that the
majority of wireless telecommunications carriers (except satellite) are
small entities. Similarly, according to internally developed Commission
data, 413 carriers reported that they were engaged in the provision
[[Page 22471]]
of wireless telephony, including cellular service, Personal
Communications Service (PCS), and Specialized Mobile Radio (SMR)
services. Of this total, an estimated 261 have 1,500 or fewer
employees. Consequently, the Commission estimates that approximately
half of these firms can be considered small. Thus, using available
data, we estimate that the majority of wireless firms can be considered
small.
117. Cable Companies and Systems (Rate Regulation). The Commission
has developed its own small business size standards for the purpose of
cable rate regulation. Under the Commission's rules, a ``small cable
company'' is one serving 400,000 or fewer subscribers nationwide.
Industry data indicate that there are currently 4,600 active cable
systems in the United States. Of this total, all but nine cable
operators nationwide are small under the 400,000-subscriber size
standard. In addition, under the Commission's rate regulation rules, a
``small system'' is a cable system serving 15,000 or fewer subscribers.
Current Commission records show 4,600 cable systems nationwide. Of this
total, 3,900 cable systems have fewer than 15,000 subscribers, and 700
systems have 15,000 or more subscribers, based on the same records.
Thus, under this standard as well, we estimate that most cable systems
are small entities.
118. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, also contains a size standard
for small cable system operators, which is ``a cable operator that,
directly or through an affiliate, serves in the aggregate fewer than
one percent of all subscribers in the United States and is not
affiliated with any entity or entities whose gross annual revenues in
the aggregate exceed $250,000,000 are approximately 52,403,705 cable
video subscribers in the United States today. Accordingly, an operator
serving fewer than 524,037 subscribers shall be deemed a small operator
if its annual revenues, when combined with the total annual revenues of
all its affiliates, do not exceed $250 million in the aggregate. Based
on available data, we find that all but nine incumbent cable operators
are small entities under this size standard. We note that the
Commission neither requests nor collects information on whether cable
system operators are affiliated with entities whose gross annual
revenues exceed $250 million. Although it seems certain that some of
these cable system operators are affiliated with entities whose gross
annual revenues exceed $250,000,000, we are unable at this time to
estimate with greater precision the number of cable system operators
that would qualify as small cable operators under the definition in the
Communications Act.
119. All Other Telecommunications. ``All Other Telecommunications''
is defined as follows: ``This U.S. industry is comprised of
establishments that are 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 ``All Other Telecommunications,''
which consists of all such firms with gross annual receipts of $32.5
million or less. For this category, Census Bureau data for 2012 show
that there were 1,442 firms that operated for the entire year. Of those
firms, a total of 1,400 had annual receipts less than $25 million.
Consequently, we conclude that the majority of All Other
Telecommunications firms can be considered small.
120. Electric Power Generation, Transmission and Distribution. The
Census Bureau defines this category as follows: ``This industry group
comprises establishments primarily engaged in generating, transmitting,
and/or distributing electric power. Establishments in this industry
group may perform one or more of the following activities: (1) Operate
generation facilities that produce electric energy; (2) operate
transmission systems that convey the electricity from the generation
facility to the distribution system; and (3) operate distribution
systems that convey electric power received from the generation
facility or the transmission system to the final consumer.'' This
category includes electric power distribution, hydroelectric power
generation, fossil fuel power generation, nuclear electric power
generation, solar power generation, and wind power generation. The SBA
has developed a small business size standard for firms in this category
based on the number of employees working in a given business. According
to Census Bureau data for 2012, there were 1,742 firms in this category
that operated for the entire year.
121. Natural Gas Distribution. This economic census category
comprises: ``(1) establishments primarily engaged in operating gas
distribution systems (e.g., mains, meters); (2) establishments known as
gas marketers that buy gas from the well and sell it to a distribution
system; (3) establishments known as gas brokers or agents that arrange
the sale of gas over gas distribution systems operated by others; and
(4) establishments primarily engaged in transmitting and distributing
gas to final consumers.'' The SBA has developed a small business size
standard for this industry, which is all such firms having 1,000 or
fewer employees. According to Census Bureau data for 2012, there were
422 firms in this category that operated for the entire year. Of this
total, 399 firms had employment of fewer than 1,000 employees, 23 firms
had employment of 1,000 employees or more, and 37 firms were not
operational. Thus, the majority of firms in this category can be
considered small.
122. Water Supply and Irrigation Systems. This economic census
category ``comprises establishments primarily engaged in operating
water treatment plants and/or operating water supply systems. The water
supply system may include pumping stations, aqueducts, and/or
distribution mains. The water may be used for drinking, irrigation, or
other uses.'' The SBA has developed a small business size standard for
this industry, which is all such firms having $27.5 million or less in
annual receipts. According to Census Bureau data for 2012, there were
3,261 firms in this category that operated for the entire year. Of this
total, 3,035 firms had annual sales of less than $25 million. Thus, the
majority of firms in this category can be considered small.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
123. The NPRM proposes and/or seeks comment on a number of rule
changes that will affect reporting, recordkeeping, and other compliance
requirements. We expect the rule revisions proposed or suggested for
potential change in the NPRM to reduce reporting, recordkeeping, and
other compliance requirements. The rule revisions taken as a whole
should have a beneficial reporting, recordkeeping, or compliance impact
on small entities because all carriers will be subject to fewer such
burdens. Each of these changes is described below.
124. The NPRM proposes the following changes to the current pole
[[Page 22472]]
attachment timeline: (1) Requiring utilities to make a decision on
completed pole attachment applications within a timeframe shorter than
the current 45 days of receipt; (2) requiring utilities to provide an
estimate of make-ready costs to new attachers within a timeframe that
is shorter than the current 14 days; and (3) establishing a time period
for existing attachers to complete make-ready work to their attachments
in the communications space of a pole that is shorter than the current
60 days. The NPRM also proposes to limit a new attacher's liability for
make-ready costs to those costs actually caused by the new attachment,
to require utilities to proportionately share in the cost of a new
attachment for which they receive a direct benefit, and to require
utilities that perform make-ready work to make available to new
attachers a schedule of common make-ready charges. With regard to pole
attachment rates, the NPRM proposes to codify the elimination from the
telecommunications and cable rate formulas those capital costs that
already have been paid to the utility via make-ready charges, to
establish a rebuttable presumption that incumbent LECs are similarly
situated to other attachers on a pole, and to establish a rebuttable
pole attachment formula for computing the maximum pole attachment rate
to be charged to incumbent LECs. Further, the NPRM proposes a 180-day
shot clock for Commission resolution of pole access complaints, which
would include a mandatory pre-complaint meeting between the parties in
order to resolve procedural issues and deadlines. Finally, the NPRM
proposes to allow incumbent LECs to request nondiscriminatory pole
access from other LECs that own or control utility poles. Should the
Commission adopt any of these proposals, such actions could result in
increased, reduced, or otherwise altered reporting, recordkeeping, or
other compliance requirements for utilities and attaching entities. The
NPRM also seeks comment on eliminating some or all of the changes to
the copper retirement process adopted by the Commission in the 2015
Technology Transitions Order, including the rules that doubled the time
period during which an incumbent LEC must wait to implement the planned
copper retirement after the Commission's publication of public notice
from 90 days to 180 days, required direct notice to retail customers,
and expanded the types of information that must be disclosed. The NPRM
also proposes eliminating the rule preventing incumbent LECs from
disclosing information about planned network changes with certain
entities until public notice has been given of those planned changes,
and also seeks comment on eliminating section 68.110(b), which requires
that a carrier notify its customers when changes to its facilities,
equipment, operations, or procedures might render customers' terminal
equipment incompatible with those facilities, equipment, operations, or
procedures. In addition, the NPRM proposes targeted measures and/or
seeks comment on potential rule changes to shorten timeframes and
eliminate unnecessary regulatory process encumbrances that carriers
face to maintain legacy services they seek to discontinue.
E. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
125. The RFA requires an agency to describe any significant
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 or reporting requirements under the rule for 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 small
entities.
126. The Commission proposes to adopt specific changes to its pole
attachment timeline that would provide a predictable, timely process
for parties to obtain pole attachments, while maintaining the interests
of utilities and existing attachers in preserving safety, reliability,
and sound engineering. In consideration of the new timeline, the
Commission seeks comments on alternatives that might help smaller
utilities and attachers: (1) Whether it would be reasonable to cap at
45 days a utility's review of a large number of pole attachment
applications; (2) whether it is reasonable to combine the survey,
estimate, and acceptance stages of the current Commission pole
attachment timeline into one step with a condensed timeframe; and (3)
whether 30 days is long enough for existing attachers to complete
routine make-ready work. The Commission also seeks alternatives to its
current make-ready process in the areas of: (1) The expanded use of
utility-approved contractors to perform make-ready work; (2) allowing
existing attachers to observe the make-ready work being performed by
new attachers and their contractors; (3) requiring utilities and
attachers to agree on the specific contractors to perform make-ready
work on their equipment; (4) allowing new attachers to perform routine
make-ready work on all pole equipment without involving existing
attachers; and (5) establishing pole attachment processes modeled after
``one-touch, make-ready'', ``right-touch, make-ready'', and other
approaches. The Commission also seeks alternatives to its current
complaint process as the best way to keep make-ready costs just and
reasonable, asks whether a bonus payment or multiplier could be used to
incent existing attachers to meet their make-ready timelines, asks
about ways to incent private negotiations between new and existing
attachers to govern the make-ready process (e.g., allowing a new
attacher to select a default contractor to perform make-ready,
penalizing existing attachers that fail to meet make-ready deadlines),
asks whether utilities should be required to make information available
online regarding the cost, location, and availability of poles and
conduits, asks whether a flat per-pole make-ready fee would be
preferable to the current method of allocating make-ready costs, asks
whether utilities should be required to reimburse attachers for the
costs of new attachments that subsequently benefit utilities (which
might benefit new entrants, especially small entities with limited
resources), asks whether the Commission should eliminate all capital
costs from its pole attachment rate formulas, asks about the
appropriate pole attachment rate for attachers providing commingled
cable and telecommunications services, and asks whether we should adopt
a shot clock for all pole attachment complaints (not just those related
to pole access).
127. The NPRM also seeks comment on the need to revise the
requirements of our network change disclosure rules applicable to
copper retirements to reduce barriers to investment in next-generation
technologies and promote broadband deployment. To that end, the NPRM
seeks comment on eliminating section 51.332 in its entirety and
returning to a more streamlined version of the pre-2015 Technology
Transitions Order requirements for handling copper retirements subject
to section 251(c)(5) of the Act. Specifically, the NPRM seeks comment
on reinstating the less burdensome requirements under section 51.333(c)
of the Commission's rules applicable to copper retirements prior to
adoption of the 2015 Technology
[[Page 22473]]
Transitions Order. In the alternative, the NPRM seeks comment on
eliminating all differences between copper retirement and other network
change notice requirements, rendering copper retirement changes subject
to the same long-term or, where applicable, short-term network change
notice requirements as all other types of network changes subject to
section 251(c)(5). As a third alternative, the NPRM seeks comment on
retaining but amending section 51.332 to streamline the process.
Specifically, the NPRM seeks comment on revising section 51.332 to: (1)
Require an incumbent LECs to serve its notice only to telephone
exchange service providers that directly interconnect with the
incumbent LEC's network, rather than ``each entity within the affected
service area that directly interconnects with the incumbent LEC's
network''; (2) reduce the waiting period to 90 days from 180 days after
the Commission releases its public notice before the incumbent LEC may
implement the planned copper retirement; (3) provide greater
flexibility regarding the time in which an incumbent LEC must file the
requisite certification; and (4) reduce the waiting period to 30 days
where the copper facilities being retired are no longer being used to
serve any customers in the affected service area; and to potentially
reinstate the objection procedures applicable under the rules in place
prior to the 2015 Technology Transitions Order if section 51.332 is
eliminated. The NPRM also proposes to eliminate the prohibition on
incumbent LECs disclosing information about planned network changes
prior to giving public notice of those planned changes. And the NPRM
seeks comment on eliminating or modifying section 68.110(b), which
requires that a carrier notify its customers when changes to its
facilities, equipment, operations, or procedures might render
customers' terminal equipment incompatible with those facilities,
equipment, operations, or procedures.
128. The NPRM seeks comment on proposals to streamline the section
214(a) discontinuance process for applications that seek authorization
to ``grandfather'' low-speed legacy services, such as TDM services at
lower-than-DS1 speeds (below 1.544 Mbps), for existing customers.
Specifically, the proposals seek to reduce the public comment period to
10 days for applications from both dominant and non-dominant carriers
seeking to grandfather legacy low-speed services. The proposals also
seek to revise the Commission's discontinuance rules to provide for
automatic grant of applications by both dominant and non-dominant
carriers to grandfather low-speed legacy services on the 25th day after
the Commission has released a public notice seeking comment on an
application, unless the Commission notifies the applicant that such a
grant will not be automatically effective.
129. The NPRM seeks comment on proposals to streamline the
discontinuance process for any application seeking authorization to
discontinue legacy data services that have been grandfathered for a
period of no less than 180 days prior to the filing of the application.
The proposals seek to adopt a uniform public comment period of 10 days
for all applications seeking to discontinue legacy data services that
have previously been grandfathered, regardless of whether the carrier
filing the application is a dominant or non-dominant carrier.
Additionally, the proposals seek to provide for automatic grant of
these applications on the 31st day after filing, unless the Commission
notifies the applicant that such a grant will not be automatically
effective.
130. The NPRM seeks comment on revising the discontinuance rule
pertaining to discontinuance applications filed in response to a copper
retirement notice to reflect any subsequent changes to the copper
retirement rules and any other streamlining measures that could be
taken.
131. The NPRM seeks comment on reversing the Commission's 2015
``clarification'' of section 214(a) that substantially expanded the
scope of end users that a carrier must consider in determining whether
it is required to obtain section 214 discontinuance authority, and,
going forward, interpret section 214(a) to require a carrier to take
into account only its own end users when evaluating whether the carrier
will ``discontinue, reduce, or impair service to a community, or part
of a community.''
132. The Commission believes that its proposals and potential rule
changes upon which the NPRM seeks comment will benefit all carriers,
regardless of size. The proposals and potential rule changes would
further the goal of reducing regulatory burdens, thus facilitating
investment in next-generation networks and promoting broadband
deployment. We anticipate that a more modernized regulatory scheme will
encourage carriers to invest in and deploy even more advanced
technologies as they evolve.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
133. None.
VI. Procedural Matters
A. Ex Parte Rules
134. The proceeding related to this NPRM shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Rule 1.1206(b). In proceedings governed by
Rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
B. Initial Regulatory Flexibility Analysis
135. Pursuant to the Regulatory Flexibility Act (RFA), the
Commission has prepared an Initial Regulatory Flexibility Analysis
(IRFA) of the possible significant economic impact on small entities of
the policies and actions considered in this NPRM. The text of
[[Page 22474]]
the IRFA is set forth above. Written public comments are requested on
this IRFA. Comments must be identified as responses to the IRFA and
must be filed by the deadlines for comments on the NPRM. The
Commission's Consumer and Governmental Affairs Bureau, Reference
Information Center, will send a copy of the NPRM, including the IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration.
C. Paperwork Reduction Act
136. This document contains proposed new and modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. In addition,
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we
might further reduce the information collection burden for small
business concerns with fewer than 25 employees.
VII. Ordering Clauses
137. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1-4, 201, 202, 214, 224, 251, 253 and 303(r) of
the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201,
202, 214, 224, 251, 253, 303(r), this NPRM is adopted.
138. It is further ordered that the Commission's Consumer &
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this NPRM to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects
47 CFR Part 1
Practice and procedure.
47 CFR Part 51
Interconnection.
47 CFR 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.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 1, 51, and 63
as follows:
PART 1--PRACTICE AND PROCEDURE
0
1. The authority for part 1 continues to read as follows:
Authority: 15 U.S.C. 79 et seq., 47 U.S.C. 151, 154(i) and (j),
155, 157, 160, 201, 224, 225, 227, 303, 309, 301, 332, 1403, 1404,
1451, 1452, and 1455.
0
2. Amend Sec. 1.1403 by revising paragraphs (a) and (b) to read as
follows:
Sec. 1.1403 Duty to provide access; modifications; notice of removal,
increase or modification; petition for temporary stay; and cable
operator notice.
(a) A utility shall provide a cable television system or any
telecommunications carrier with nondiscriminatory access to any pole,
duct, conduit, or right-of-way owned or controlled by it. A utility
that is a local exchange carrier shall provide any incumbent local
exchange carrier (as defined in 47 U.S.C. 251(h)) with
nondiscriminatory access to any pole, duct, conduit, or right-of-way
owned or controlled by it. Notwithstanding either of the foregoing
obligations, a utility may deny a cable television system or any
telecommunications carrier, and a utility that is a local exchange
carrier may deny an incumbent local exchange carrier, access to its
poles, ducts, conduits, or rights-of-way, on a non-discriminatory basis
where there is insufficient capacity or for reasons of safety,
reliability and generally applicable engineering purposes.
(b) Requests for access to a utility's poles, ducts, conduits, or
rights-of-way by a telecommunications carrier or cable operator must be
in writing. If access is not granted within 15 days of the request for
access, the utility must confirm the denial in writing by the 15th day
(or within the timelines set forth in section 1.1420(g)). The utility's
denial of access shall be specific, shall include all relevant evidence
and information supporting its denial, and shall explain how such
evidence and information relate to a denial of access for reasons of
lack of capacity, safety, reliability or engineering standards.
* * * * *
0
3. Amend Sec. 1.1404 by revising paragraph (k) to read as follows:
Sec. 1.1404 Complaint.
* * * * *
(k) The complaint shall include:
(1) A certification that the complainant has, in good faith,
engaged or attempted to engage in executive-level discussions with the
respondent to resolve the pole attachment dispute. Executive-level
discussions are discussions among representatives of the parties who
have sufficient authority to make binding decisions on behalf of the
company they represent regarding the subject matter of the discussions.
Such certification shall include a statement that, prior to the filing
of the complaint, the complainant mailed a certified letter to the
respondent outlining the allegations that form the basis of the
complaint it anticipated filing with the Commission, inviting a
response within a reasonable period of time, and offering to hold
executive-level discussions regarding the dispute; and
(2) A certification that the complainant and respondent have, in
good faith, engaged in discussions to resolve procedural issues and
deadlines associated with the pole attachment complaint process. Such
certification shall include a statement that the complainant has
contacted the Commission to disclose the results of the pre-complaint
discussions with respondent.
(3) A refusal by a respondent to engage in the discussions
contemplated in this paragraph shall constitute an unreasonable
practice under section 224 of the Act.
* * * * *
0
4. Amend Sec. 1.1409 by revising paragraph (c) to read as follows:
Sec. 1.1409 Commission consideration of the complaint.
* * * * *
(c) The Commission shall determine whether the rate, term or
condition complained of is just and reasonable. For the purposes of
this paragraph, a rate is just and reasonable if it assures a utility
the recovery of not less than the additional costs of providing pole
attachments, nor more than an amount determined by multiplying the
percentage of the total usable space, or the percentage of the total
duct or conduit capacity, which is occupied by the pole attachment by
the sum of the operating expenses and actual capital costs of the
utility attributable to the entire pole, duct, conduit, or right-of-
way. The Commission shall exclude from actual capital costs those
reimbursements received by the utility from cable operators and
telecommunications carriers for non-recurring costs as set forth in
sections 1.1404(g)(1)(xiii) and 1.1404(h)(1)(ix).
* * * * *
0
5. Amend Sec. 1.1416 by revising the section heading and paragraphs
(b) and (c), and adding paragraph (d) to read as follows:
[[Page 22475]]
Sec. 1.1416 Imputation of rates; make-ready costs.
* * * * *
(b) The cable television system operator or telecommunications
carrier requesting attachment shall be responsible only for the actual
costs of make-ready made necessary solely as a result of its new
attachments.
(c) The costs of modifying a facility shall be borne by all
attachers and utilities that obtain access to the facility as a result
of the modification and by all attachers and utilities that directly
benefit from the modification. Each party described in the preceding
sentence shall share proportionately in the cost of the modification.
An attacher or a utility with a preexisting attachment to the modified
facility shall be deemed to directly benefit from a modification if,
after receiving notification of such modification as provided in
subpart J of this part, it adds to or modifies its attachment.
Notwithstanding the foregoing, an attacher or utility with a
preexisting attachment to a pole, conduit, duct or right-of-way shall
not be required to bear any of the costs of rearranging or replacing
its attachment if such rearrangement or replacement is necessitated
solely as a result of an additional attachment or the modification of
an existing attachment sought by another party. If an attacher or
utility makes an attachment to the facility after the completion of the
modification, such party shall share proportionately in the cost of the
modification if such modification rendered possible the added
attachment.
(d) If a utility performs make-ready, the utility shall make
available to the cable television system operator or telecommunications
carrier requesting attachment a schedule of its common make-ready
charges that the new attacher may be charged.
0
6. Amend Sec. 1.1420 by revising paragraphs (c) and (d), paragraph
(e)(1)(ii), and paragraphs (g)(3) and (4) to read as follows:
Sec. 1.1420 Timeline for access to poles, ducts, conduits, and
rights of way.
* * * * *
(c) Survey. A utility shall respond as described in Sec. 1.1403(b)
to a cable television system operator or telecommunications carrier
within 15 days of receipt of a complete application to attach
facilities to its utility poles (or within the timelines set forth in
paragraph (g) of this section). This response may be a notification
that the utility has completed a survey of poles for which access has
been requested. A complete application is an application that provides
the utility with the information necessary under its procedures to
begin to survey the poles.
(d) Estimate. Where a request for access is not denied, a utility
shall present to a cable television system operator or
telecommunications carrier an estimate of charges to perform all
necessary make-ready work within 7 days of providing the response
required by Sec. 1.1420(c), or in the case where a prospective
attacher's contractor has performed a survey, within 7 days of receipt
by the utility of such survey.
(1) A utility may withdraw an outstanding estimate of charges to
perform make-ready work beginning 7 days after the estimate is
presented.
(2) A cable television system operator or telecommunications
carrier may accept a valid estimate and make payment anytime after
receipt of an estimate but before the estimate is withdrawn.
(e) * * *
(1) * * *
(ii) Set a date for completion of make-ready that is no later than
30 days after notification is sent (or 75 days in the case of larger
orders as described in paragraph (g) of this section).
* * * * *
(g) * * *
(3) A utility may add 30 days to the survey period described in
paragraph (c) of this section to pole attachment orders larger than the
lesser of (i) 3000 poles or (ii) 5 percent of the utility's poles in a
state.
(4) A utility may add 45 days to the make-ready periods described
in paragraph (e) of this section to larger orders up to the lesser of
3000 poles or 5 percent of the utility's poles in a state.
* * * * *
0
7. Amend Sec. 1.1422 by revising the section heading and paragraphs
(a) and (c) to read as follows:
Sec. 1.1422 Contractors for survey and make-ready.
(a) A utility shall make available and keep up-to-date a reasonably
sufficient list of contractors it authorizes to perform surveys and
make-ready in the communications space on its utility poles. A utility
shall separately identify on that list the contractors it authorizes to
perform make-ready above the communications space on its utility poles.
* * * * *
(c) A cable television system operator or telecommunications
carrier that hires a contractor for survey or make-ready work shall
provide a utility and existing attachers with a reasonable opportunity
for their representatives to accompany and consult with the authorized
contractor and the cable television system operator or
telecommunications carrier requesting attachment.
* * * * *
0
8. Revise Sec. 1.1424 to read as follows:
Sec. 1.1424 Complaints by incumbent local exchange carriers.
Complaints by an incumbent local exchange carrier (as defined in 47
U.S.C. 251(h)) or an association of incumbent local exchange carriers
alleging that a rate, term, or condition for a pole attachment is not
just and reasonable shall follow the same complaint procedures
specified for other pole attachment complaints in this part, as
relevant. In complaint proceedings, there will be a rebuttable
presumption that an incumbent local exchange carrier (or an association
of incumbent local exchange carriers) is similarly situated to an
attacher that is a telecommunications carrier (as defined in 47 U.S.C.
251(a)(5)) or a cable television system for purposes of obtaining
comparable rates, terms or conditions. In pole attachment rate
complaint proceedings, it is presumed that incumbent local exchange
carriers (or an association of incumbent local exchange carriers) may
be charged no higher than the rate determined in accordance with
section 1.1409(e)(2), unless a utility can rebut the presumption by
demonstrating that this maximum rate presumption should not apply.
0
9. Add Sec. 1.1425 to subpart J to read as follows:
Sec. 1.1425 Review Period for Pole Access Complaints.
(a) Except in extraordinary circumstances, final action on a
complaint where a cable television system operator or
telecommunications carrier claims that it has been denied access to a
pole, duct, conduit, or right-of-way owned or controlled by a utility
should be expected no later than 180 days from the date the complaint
is filed with the Commission.
(b) The Commission shall have the discretion to pause the 180-day
review period in situations where actions outside the Commission's
control are responsible for unreasonably delaying Commission review of
an access complaint.
PART 51--INTERCONNECTION
0
10. The authority 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.
[[Page 22476]]
Sec. 51.325 [Amended]
0
11. Amend Sec. 51.325 by removing paragraph (c) and redesignating
paragraphs (d) and (e) as (c) and (d).
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
12. The authority for part 63 continues to read as follows:
Authority: Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218,
403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless
otherwise noted.
0
13. Amend Sec. 63.60 by redesignating paragraphs (d) through (h) as
(e) through (i), and adding new paragraph (d) to read as follows:
Sec. 63.60 Definitions.
* * * * *
(d) Grandfather means to maintain the provision of a service to
existing customers while ceasing to offer that service to new
customers.
* * * * *
0
14. Amend Sec. 63.71 by adding paragraph (a)(5)(iii) and (a)(8),
revising paragraph (c), removing paragraph (d), redesignating
paragraphs (e) and (f) as (d) and (e), adding new paragraph (f), and
revising paragraph (g) to read as follows:
Sec. 63.71 Procedures for discontinuance, reduction or impairment of
service by domestic carriers.
(a) * * *
(5) * * *
(iii) Notwithstanding paragraphs (a)(5)(i) and (ii) of this
section, if any carrier, dominant or non-dominant, seeks to either
grandfather legacy service operating at speeds lower than 1.544 Mbps;
or discontinue, reduce, or impair legacy data service that has been
grandfathered for a period of no less than 180 days consistent with the
criteria established in paragraph (a)(8) of this section, the notice
shall state: The FCC will normally authorize this proposed
discontinuance of service (or reduction or impairment) unless it is
shown that customers would be unable to receive service or a reasonable
substitute from another carrier or that the public convenience and
necessity is otherwise adversely affected. If you wish to object, you
should file your comments as soon as possible, but no later than 10
days after the Commission releases public notice of the proposed
discontinuance. You may file your comments electronically through the
FCC's Electronic Comment Filing System using the docket number
established in the Commission's public notice for this proceeding, or
you may address them to the Federal Communications Commission, Wireline
Competition Bureau, Competition Policy Division, Washington, DC 20554,
and include in your comments a reference to the Sec. 63.71 Application
of (carrier's name). Comments should include specific information about
the impact of this proposed discontinuance (or reduction or impairment)
upon you or your company, including any inability to acquire reasonable
substitute service.
* * * * *
(8) For applications to discontinue, reduce, or impair a legacy
data service that has been grandfathered for a period of no less than
180 days, in order to be eligible for automatic grant under paragraph
(f) of this section, an applicant must include in its application a
statement confirming that they received Commission authority to
grandfather the service at issue at least 180 days prior to filing the
current application.
* * * * *
(c) The carrier shall file with this Commission, on or after the
date on which notice has been given to all affected customers, an
application which shall contain the following:
(1) Caption--``Section 63.71 Application'';
(2) Information listed in Sec. 63.71(a) (1) through (4) above;
(3) Information listed in Sec. 63.71(a) (6) through (8) above, if
applicable;
(4) Brief description of the dates and methods of notice to all
affected customers;
(5) Whether the carrier is considered dominant or non-dominant with
respect to the service to be discontinued, reduced or impaired; and
(6) Any other information the Commission may require.
* * * * *
(f) Notwithstanding paragraph (e) of this section, an application
filed by any carrier seeking to grandfather legacy service operating at
speeds lower than 1.544 Mbps for existing customers shall be
automatically granted on the 25th 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. For purposes of this section, an application
will be deemed filed on the date the Commission releases public notice
of the filing.
(g) An application seeking to:
(1) Discontinue, reduce, or impair a service for which the
requesting carrier has had no customers or reasonable requests for
service during the 60-day period immediately preceding the filing of
the application; or
(2) Discontinue, reduce, or impair a legacy data service that has
been grandfathered for no less than the 180-day period immediately
preceding the filing 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.
* * * * *
[FR Doc. 2017-09689 Filed 5-15-17; 8:45 am]
BILLING CODE 6712-01-P