Modernizing Unbundling and Resale Requirements in an Era of Next-Generation Networks and Services, 472-487 [2019-27607]
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Lance T. Gant,
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[FR Doc. 2019–28354 Filed 1–3–20; 8:45 am]
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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 51
[WC Docket No. 19–308; FCC 19–119; FRS
16321]
Modernizing Unbundling and Resale
Requirements in an Era of NextGeneration Networks and Services
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the Federal
Communications Commission seeks
comment on a number of proposals to
modernize unbundling and resale
obligations applicable to incumbent
local exchange carriers (incumbent
LECs) for local loops, dark fiber
transport, and other types of network
elements. The Commission also seeks
comment on costs associated with
specific unbundled network elements
and resold services and on a transition
period for all unbundling and resale
relief that may be provided.
DATES: Comments are due on or
February 5, 2020, and reply comments
are due on or before March 6, 2020.
ADDRESSES: You may submit comments,
identified by WC Docket No. 19–308, by
any of the following methods:
• Federal Communications
Commission’s website: https://
www.fcc.gov/ecfs/. Follow the
instructions for submitting comments.
• 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 9050
Junction Drive, Annapolis Junction, MD
20701. U.S. Postal Service first-class,
SUMMARY:
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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).
For detailed instructions for
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT:
Michele Levy Berlove, Competition
Policy Division, Wireline Competition
Bureau, at (202) 418–1477,
Michele.Berlove@fcc.gov.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking (NPRM) in WC
Docket No. 19–308, adopted on
November 22, 2019 and released on
November 25, 2019. The full text of the
document is available at https://
docs.fcc.gov/public/attachments/FCC19-119A1.pdf. The full text is also
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. To request
materials in accessible formats for
people with disabilities (e.g., braille,
large print, electronic files, audio
format, etc.) or to request reasonable
accommodations (e.g., accessible format
documents, sign language interpreters,
CART, etc.), send an email to fcc504@
fcc.gov or call the Consumer &
Governmental Affairs Bureau at (202)
418–0530 (voice) or (202) 418–0432
(TTY).
Synopsis
I. Notice of Proposed Rulemaking
1. In this Notice of Proposed
Rulemaking (NPRM), we propose to
modernize our unbundling rules for
local loops, dark fiber transport, and
other types of network elements to
reflect the vastly changed
communications environment since the
Commission last examined unbundling
obligations through the impairment
lens. These legacy obligations appear to
no longer make any sense in many
geographic areas due to vigorous
competition for business data services,
mass market broadband services, and
numerous intermodal voice capabilities
and services. In practice, these
obligations appear to both discourage
the deployment of next-generation
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networks and unnecessarily burden
incumbent LECs.
A. Modernizing Unbundling Obligations
for Today’s Communications
Marketplace
2. Recognizing that the ‘‘purpose of
the Act is not to provide the widest
possible unbundling,’’ but ‘‘to stimulate
competition—preferably genuine,
facilities-based competition,’’ we seek
comment on how best to modernize
incumbent LECs’ remaining unbundling
obligations. While UNEs in some
circumstances have provided a path for
competitors to enter markets they might
not otherwise be able to have
economically justified entering, the
Commission has long recognized that
‘‘excessive network unbundling
requirements tend to undermine the
incentives of both incumbent LECs and
new entrants to invest in new facilities
and deploy new technology.’’ Therefore,
the Commission has never viewed the
UNE obligations as being of infinite, or
even indefinite, duration, particularly in
light of Congress’s inclusion in the 1996
Act of the means for the Commission to
analyze the continued necessity of those
requirements. Indeed, Congress
specifically contemplated a future time
when the continued need for section
251(c) unbundling obligations may be
reevaluated. Today’s marketplace is
characterized by robust intermodal
competition for voice and broadband
services that may render many
remaining unbundling obligations
unnecessary or even actively harmful by
impeding the deployment of and
transition to more technologically
advanced networks and services. Our
proposals in this NPRM are informed by
recent evidence demonstrating the
availability of intermodal competition,
as well as specific Commission findings
based on comprehensive industry data
that certain last mile loop and transport
unbundling obligations are no longer
necessary. We acknowledge, however,
that there remains a digital divide
between urban areas, which boast
increasing numbers of intermodal
broadband providers, and rural areas.
Because UNEs may have continued
benefits in providing broadband access
to Americans in rural areas—where
achieving scale is harder and thus
competitive entry is harder—we
propose to maintain existing
unbundling of mass market broadbandcapable loops in rural areas.
1. UNE Loops
3. Loops generally provide ‘‘the last
mile of a carrier’s network that enables
the end-user to originate and receive
communications.’’ Incumbent LECs are
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required to provide unbundled access to
three general types of loop facilities: (1)
DS1 and DS3 loops, (2) DS0 loops, and
(3) the TDM-capabilities, features, and
functionalities of hybrid copper/fiber
loops. Incumbent LECs are also required
to provide unbundled access to 64 kbps
voice-grade channels over fiber loops to
existing customers. Incumbent LECs
must also provide unbundled access to
UNE Analog Loops in non-price cap
incumbent LEC service areas. In
adopting loop unbundling requirements,
the Commission clarified that all loop
types may be used ‘‘across a range of
customer categories’’ and that the UNE
requirements apply equally to all classes
served. At the same time, the
Commission observed that the different
types of loop facilities ‘‘as a practical
matter, typically serve distinct classes of
customers, resulting in different
economic considerations for
competitive carriers seeking to selfdeploy.’’ We factor these observations
and considerations, along with the
‘‘reasonably efficient competitor’’ aspect
of the impairment standard, into our
proposals below.
a. UNE DS1 and DS3 Loops
4. The Commission’s rules require
incumbent LECs to unbundle DS1 and
DS3 loops, which are last-mile
transmission facilities operating at a
total digital signal speed of 1.544 Mbps
and 44.736 Mbps, respectively. These
loops, which are used primarily to serve
enterprise customers, are not available
as UNEs in all locations. Rather, the
Commission limited the availability of
UNE DS1 and DS3 Loops based on
‘‘both a minimum number of business
lines served by a wire center and the
presence of a minimum number of fiberbased collocators,’’ noting that ‘‘[a] high
concentration of business lines
generally indicates a likely
concentration of large, multi-story
commercial buildings,’’ which a
reasonably efficient competitor could
serve by building its own fiber-based
facilities. Under our rules, the relevant
thresholds for unbundling differ as to
DS1 loops and DS3 loops. UNE DS1
Loops are only available ‘‘to any
building not served by a wire center
with at least 60,000 business lines and
at least four fiber-based collocators.’’
UNE DS3 Loops are only available ‘‘to
any building not served by a wire center
with at least 38,000 business lines and
at least four fiber-based collocators.’’
The Commission also capped the
availability of unbundled DS1 and DS3
loops in a single building, recognizing
that at certain thresholds of total
bandwidth demanded at a particular
location, it was feasible for competitive
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providers to self-provision and thus no
impairment existed.
5. We propose to find no impairment
with respect to UNE DS1 and DS3 Loops
in (1) counties served by price cap
incumbent LECs found to be
competitive pursuant to the BDS Order;
and (2) the study areas deemed
competitive as a result of our decision
to allow certain rate-of-return
incumbent LECs to elect incentive
regulation for their business data
services, subject to a narrow residential
carve-out described below. We do not
include the ‘‘Counties Deemed
Grandfathered’’ within our category of
BDS competitive counties. We refer
collectively herein to the BDS
competitive counties and the
competitive rate-of-return carrier study
areas as the BDS Competitive Counties
and Study Areas. We seek comment on
this proposal.
6. Our proposal is based on the
competitive findings in the BDS Order
and the RoR BDS Order. In the BDS
Order, based on the most extensive data
collection that the Commission has ever
undertaken, the Commission concluded
that ‘‘[t]o a large extent in the business
data services market, the competition
envisioned in the [1996 Act] has been
realized.’’ It explained that incumbent
LECs ‘‘once dominated’’ the market by
selling TDM-based DS1s and DS3s, but
those services were being eclipsed by
packet-based services sold by
incumbent LECs, competitive LECs,
cable providers, and other intermodal
competitors. The Commission
developed a competitive market test for
price cap incumbent LECs’ DS1 and DS3
services ‘‘with the goal of promoting
innovation and investment and
recognizing recent trends and
developments in the BDS marketplace’’
and ‘‘to determine which local markets
are sufficiently competitive to warrant
deregulation.’’ The competitive market
test deemed a price cap county
competitive if either (1) 50% of the
buildings in the county with BDS
demand were within a half mile of a
location served by competitive fiber, a
distance at which the Commission
found competitive providers actively
competed for customers; or (2) 75% of
census blocks within the county were
served by cable with a minimum
offering of 10/1 Mbps, suggesting that
the cable provider had deployed
sufficient capacity in its network to
provide business data services. The
Commission found that 91.1% of
locations with business data services
demand in price cap areas were deemed
to be sufficiently competitive to
eliminate ex ante pricing regulation for
those services. It thus deemed 60% of
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price cap counties competitive for
purposes of DS1 and DS3 channel
terminations and found the remaining
40% (largely in more rural areas) noncompetitive. The Commission
subsequently adopted a similar
competitive market test for rate-ofreturn incumbent LECs that have
elected incentive regulation based on
rate-of-return incumbent LEC study
areas. This test, based on the second
prong of the BDS Order’s competitive
market test, eliminated ex ante pricing
regulation for DS1 and DS3 services in
16 rate-of-return study areas where
cable providers offered 10/1 Mbps or
higher speeds to at least 75% of census
blocks. The Eighth Circuit affirmed the
Commission’s use of the competitive
market test in the BDS Order, including
the test’s reliance on the competitive
fiber facilities within a half mile and
finding that cable services are
‘‘increasingly functioning as substitutes
for BDS.’’
7. We believe the BDS Order’s
findings eliminating ex ante pricing
regulation of DS1 and DS3 business data
services are applicable to the
unbundling context. If we eliminate
these specific UNEs in the BDS
Competitive Counties and Study Areas,
DS1 and DS3 services will remain
available for purchase on a commercial
basis as business data services. We
understand that there are no material
operational or performance distinctions
between UNE DS1 and DS3 Loops and
DS1 and DS3 business data services.
The Commission has previously found
that these two types of services are
‘‘particularly close substitutes’’ and thus
are a part of the same competitive
environment. Do commenters agree? Is
there any meaningful difference
between UNE DS1 and DS3 Loops and
BDS DS1 and DS3 end user channel
terminations or their terms of service,
other than pricing? Even if there is such
a difference, does unbundled access to
UNE DS1 and DS3 Loops remain
necessary in BDS Competitive Counties
or Study Areas in the current
communications marketplace with its
extensive and increasing intermodal
competition? In light of the increasing
demand for higher-bandwidth and
packet-based data services and the
corresponding declining demand for
DS1 and DS3 services, do DS1 and DS3
loops constitute reasonably efficient
technology such that a reasonably
efficient competitor would rely on them
to compete for BDS customers?
8. Our proposal to find no impairment
for DS1 and DS3 loops in BDS
Competitive Counties and Study Areas
is also based on our findings about the
availability of competitive fiber in the
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BDS Remand Order. In that Order, we
calculated that within BDS Competitive
Counties, more than 94% of locations
with BDS demand were served by
incumbent LEC wire centers within a
half mile of competitive fiber, and more
than 97% of locations with BDS
demand were either themselves within
a half mile of competitive fiber or served
by an incumbent LEC wire center within
a half mile of competitive fiber. We
reasoned that the data used in making
those findings likely understated
competition given that ‘‘cable
companies and other competitors
frequently bypass ILEC networks
entirely.’’ Moreover, the data underlying
our analysis was collected in 2013, and
‘‘competitive fiber providers have
continued to build new fiber routes in
part to compete with incumbent LECs’
BDS offerings.’’ We thus propose to
infer that the small fraction of enterprise
locations not within a half mile of
competitive fiber or served by an
incumbent LEC wire center within a
half mile of competitive fiber, i.e., less
than 3% of all enterprise locations in
price cap incumbent LEC counties,
would face the same non-impairment
conditions for competitive providers.
We seek comment on this reasoning.
9. In the BDS Order, the Commission
found that the most appropriate
geographic measure at which to
determine the competitiveness of DS1
and DS3 end-user channel terminations
was the county level, and we propose to
use that same approach here. Do
commenters agree? Is there any reason
to base our analysis on a more granular
geographic unit, e.g., based on wire
centers served by competitive fiber, or
some other geographic area, rather than
on counties? For example, should we
find that UNE DS1 and DS3 Loops
should remain available in portions of
BDS Competitive Counties served by
incumbent LEC wire centers more than
a half mile from competitive fiber? Are
there different considerations for UNE
DS1 and DS3 Loops compared to
business data services that would
warrant some type of exemption?
10. Proposed Exemption for
Residential Broadband in Rural Areas.
We propose to narrowly exempt the
availability of UNE DS1 Loops from any
unbundling relief such that UNE DS1
Loops will remain available for
residential broadband service along
with telecommunications service in
rural census blocks. Although UNE DS1
and DS3 Loops are used largely to serve
enterprise customers, there is evidence
in the record that some competitive
LECs use UNE DS1 Loops to provision
broadband to residential customers for
whom no other broadband service is
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available and the distance is too great to
provision such service using DS0s. The
findings regarding DS1s and DS3s for
the enterprise market may not translate
cleanly to the rural, residential market.
We seek comment on this view.
11. We believe this exemption would
have benefits in maintaining access to
mass market broadband in rural areas
that outweigh any disincentives to nextgeneration network deployments by
either incumbent or competitive LECs
and seek comment on that view. We
seek comment on the administrability of
this proposed exemption. We believe
that incumbent LECs should be able to
readily accommodate this proposed
exemption to our proposed finding of no
impairment for enterprise use in BDS
Competitive Counties and Study Areas.
Do commenters agree?
12. If we do carve out an exemption
related to residential use, should that
exemption be limited to UNE DS1
Loops? We understand that DS3 loops
are not generally used for residential
consumers. Are there ever instances
where UNE DS3 Loops are used to
provide residential broadband services?
If so, should a similar exemption be
provided to serve mass market
residential customers in rural census
blocks within BDS Competitive
Counties and Study Areas where UNE
DS3 loops are no longer available for
enterprise use?
13. Alternatives. As an alternative to
our proposal to find non-impairment for
DS1 and DS3 loops in BDS Competitive
Counties and Study Areas, should we
instead provide relief from unbundling
requirements for DS1 and DS3 loops
based on a forbearance analysis?
Specifically, should we forbear from the
unbundling requirements for DS1 and
DS3 loops in the BDS Competitive
Counties and Study Areas? We seek
comment on this alternative proposal
and whether the three prongs of the
forbearance test would be satisfied. We
believe the forbearance criteria are met
for the same service areas where we
propose to find non-impairment based
on the same competitive findings and
public interest determinations made in
the BDS Order and the RoR BDS Order.
Do commenters agree?
14. Or should we instead find that the
market for UNE DS1 and DS3 Loops in
the BDS Competitive Counties and
Study Areas is ‘‘sufficiently competitive
without the use of unbundling?’’ The
Commission in the Triennial Review
Remand Order made such a finding as
to the long distance and mobile wireless
markets and thus declined to require
that UNEs be made available for the
exclusive provision of these services. Do
the competitive findings in the BDS
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Order and the RoR BDS Order with
respect to BDS services rise to the same
level as the Commission’s findings in
the Triennial Review Remand Order as
to the long distance and mobile wireless
service markets? If so, are they sufficient
to conclude that incumbent LECs
should no longer be required to make
DS1 and DS3 loops available on an
unbundled basis in BDS Competitive
Counties and Study Areas?
b. UNE DS0 Loops
15. The Commission’s rules require
incumbent LECs to make UNE DS0
Loops available nationwide. These
broadband-capable loops are used
primarily to serve mass market
residential customers, in contrast to
UNE DS1 and DS3 Loops. UNE DS0
Loops are typically used to provide both
voice and broadband internet access
service using various xDSL
technologies. We also note that some
competitive LECs use DS0s to provide
Ethernet-over-copper and other higherspeed DSL service using bonded DS0s to
certain business customers. Where UNE
DS0 Loops remain available,
competitive LECs may continue to use
these loops for that purpose.
16. We propose to find that
competitive LECs are no longer
impaired without access to UNE DS0
Loops in urban census blocks. We base
our proposal on the relatively low and
falling barriers to entry that competitive
providers face in providing broadband
in urban areas, particularly using
alternative technologies. We may rely
on the availability of broadband in any
forbearance or impairment analysis,
consistent with Congress’s mandate in
section 706 that we ‘‘encourage the
deployment on a reasonable and timely
basis of advanced telecommunications
capability to all Americans.’’ While our
rules require competitive LECs to use
UNEs to provision telecommunications
services, once they do so, they may use
those same UNEs to provision
information services, i.e., broadband. By
the same token, because facilities-based
broadband can be used to provide the
same residential services that can be
provided with UNEs today, we rely on
entry into, and current competition
within, the broadband marketplace in
considering whether impairment
persists as to UNE DS0 Loops. Because
facilities-based broadband service
provides residential consumers similar
(and typically more advanced) voice
and internet access capabilities to those
that can be provided with UNE DS0
Loops, we rely on evidence of entry
into, and current competition within,
the broadband marketplace in
considering whether impairment
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persists as to UNE DS0 Loops in urban
census blocks. Do commenters agree
with this approach? We recognize that
rural areas present different deployment
considerations than urban areas and
thus do not propose to include rural
census blocks in our proposed nonimpairment finding.
17. Our proposal to find that
competitive LECs are no longer
impaired in urban census blocks
without access to UNE DS0 Loops relies
on the presence of nearly ubiquitous
cable deployment in urban areas. Cable
providers make available facilities-based
25/3 Mbps internet access service,
which meets the Commission’s
definition of advanced
telecommunications capability, without
the use of UNEs to 97% of households
in urban census blocks. Furthermore,
74% of households in urban census
blocks have at least two 25/3 Mbps
providers, and 87% of households in
urban census blocks have at least two
10/1 Mbps providers, generally the
cable provider and the incumbent LEC,
all without the use of UNEs. These
figures exclude satellite providers and
competitive LECs providing copperbased services. We assume any nonincumbent LEC provider offering
copper-based services uses UNEs. We
infer from this data that as cable
continues to vigorously compete with
other wireline ISPs, cable providers will
build out to the remaining urban census
blocks in the near future and similarly,
competing facilities-based wireline
providers will upgrade their networks to
better compete with cable. We seek
comment on this analysis.
18. Our proposal also relies on recent
evidence demonstrating that increasing
numbers of competitors using wireless
technologies are entering the residential
market for broadband services in urban
areas without the use of UNEs. For
example, Verizon has announced plans
to deploy 5G-based fixed wireless
service in 30 geographic markets, mostly
outside its incumbent LEC territory,
Starry is deploying fixed wireless
service in major urban centers, and
other WISPs are specifically targeting
urban customers as well. AT&T’s CEO
recently told investors that over the next
three to five years, ‘‘unequivocally 5G
will serve as a . . . fixed broadband
replacement product.’’ These
developments are consistent with the
observations in the 2018
Communications Marketplace Report,
where the Commission noted that
advancements in fixed wireless service
technology will produce speeds that
will ultimately rival what can be offered
by fiber. Indeed, even certain parties
opposing USTelecom’s recent request
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475
for forbearance noted that 5G ‘‘is ideally
suited for urban areas with high
building density.’’ Relatedly, the
Commission has long recognized that
the costs for new deployment are
significantly lower in urban areas.
Indeed, one of the key assumptions of
the Commission’s Connect America
Fund model, which determines how
scarce universal service funds are
allocated for high-cost areas, is that
broadband deployment costs less in
urban areas than in rural areas. The
Commission has also acted to lower
barriers to entry and thereby spur
further intermodal competition by
opening additional spectrum for
licensed and unlicensed uses,
streamlining the process of small cell
siting, and modernizing pole attachment
rules to reduce the cost and time it takes
to string fiber on poles. We propose to
find on the basis of these factors taken
together that entry barriers have been
reduced and, in many areas, eliminated
so significantly that a reasonably
efficient competitor is no longer
impaired without access to UNE DS0
Loops in urban census blocks and that
unbundling of DS0 loops in such areas
is no longer warranted. We seek
comment on this proposal. Do
commenters agree that the increasing
wireless broadband deployment and
entry in urban areas constitute evidence
that a reasonably efficient competitor
using reasonably efficient technologies
is not impaired without access to these
UNEs?
19. In these urban areas where
advanced services are available to
consumers from providers that do not
rely on UNE DS0 Loops, we believe a
continued DS0 unbundling requirement
will artificially and unnecessarily slow
the consumer transition away from
services provided over legacy copper
loops to more advanced networks and
services. We therefore believe that
eliminating DS0 unbundling in urban
areas would better advance the 1996
Act’s goal of broadband deployment.
Furthermore, new entrants using fixed
wireless and other technologies may
specifically target the relatively few
urban areas with only one 25/3 Mbps
provider as offering the most
economically-feasible case for entry,
because of the density and relative lack
of competition in these areas,
particularly if UNE DS0 Loops are no
longer available. We seek comment on
these views.
20. We believe basing a finding of
non-impairment at the urban census
block level would be administratively
workable to implement as both
incumbent and competitive LECs are
familiar with census block metrics as a
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result of the Commission’s Form 477
broadband deployment reporting
obligations, and urban versus rural
census blocks are identifiable based on
the Census Bureau’s publicly available
designations. Do commenters agree? If
basing a non-impairment finding on
census blocks would raise
administrative difficulties, how might
we ease or address them? Urban census
blocks may be located either in
urbanized areas or urban clusters.
21. In proposing relief for UNE DS0
Loops, we do not propose to distinguish
between residential and enterprise
services. We note that within price cap
counties that have been deemed
competitive by the BDS Order for
business data services, including DS1
services, 95% of census blocks with
business demand had at least one
competitive provider. Based on the
present record, we do not foresee a need
that would justify different treatment for
UNE DS0 Loops based on their use. We
seek comment on this view.
22. Competitive LECs stated that they
use broadband-capable UNE DS0 Loops
to create new services not provided by
incumbent LECs by bonding multiple
loops and/or placing their own
electronics on them to provide highspeed broadband and voice service to
their customers. Competitive LECs also
commented that they use these loops as
bridges to deployment of nextgeneration networks, and asserted that
no meaningful alternatives for
consumers exist for these loops.
Incumbent LECs asserted that they are
developing or have already developed
broadband alternatives that may not
have existed when the competitive LEC
first entered those areas. We seek
comment on these competing assertions.
Are there urban census blocks where
incumbent LECs currently only provide
legacy, or no, DSL service and where a
competitive LEC supplies high-speed
broadband over UNE DS0 Loops? If so,
where? And would granting relief
promote or deter additional investment
in high-speed facilities in such areas?
23. Some competitive LECs have
contended that customer preference for
TDM-based and line-powered services
supports maintaining unbundling
requirements, while incumbent LECs
have argued that such preferences are
irrelevant to an analysis of whether to
forbear from the UNE regime. We
concluded for purposes of our
forbearance analysis in the UNE Analog
Loop and Avoided-Cost Resale
Forbearance Order that ‘‘we [ ] are not
persuaded that the Commission must
‘protect’ every preference some
customers might have, especially in the
face of alternative options for obtaining
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voice services.’’ Do different
considerations apply here? Should an
impairment analysis consider the extent
to which our unbundling requirements
may artificially protect users of legacy
technologies from market forces that
would otherwise provide price signals
encouraging the transition to nextgeneration technologies?
24. Does evidence that incumbent
LECs offered UNE-platform (UNE–P)
replacement products when the UNE–P
obligation was eliminated support
incumbent LEC suggestions that they
intend to offer UNE DS0 Loop
replacement products on a
commercially negotiated basis? How, if
at all, should such a possibility factor
into an impairment or forbearance
analysis?
25. Our current copper retirement
rules permit incumbent LECs to obtain
relief from the unbundling requirements
for DS0 loops by deploying fiber or
other next-generation networks and then
retiring their copper facilities pursuant
to our network change disclosure rules.
Incumbent LECs may retire their copper
facilities without the need to seek our
authorization. We seek comment on
whether the availability of this option
has any bearing on the need for
unbundling relief. What impact, if any,
does an incumbent LEC’s ability to
achieve relief equivalent to forbearance
have on competitive LEC incentives to
deploy their own facilities as
expeditiously as possible? If an
incumbent LEC continues to maintain
its copper facilities even after it has
deployed last-mile fiber, should those
copper facilities remain available to
competitors via unbundling for the
types of services customers nevertheless
continue to demand?
26. In forbearing from the UNE
Analog Loop obligation, we noted ‘‘the
disincentive that continued unbundling
mandates create for competitors to
invest in their own facilities-based
networks and transition their customers
to next-generation services.’’ Is there
any reason to believe that different
considerations apply with respect to
UNE DS0 Loops? Does the economic
cost of maintaining a DS0 unbundling
requirement outweigh any benefit of
allowing customers to continue relying
on legacy services?
27. Alternatives. As an alternative to
finding no impairment for DS0 loops in
urban census blocks, should we forbear
from DS0 loop unbundling requirements
in urban census blocks with a minimum
of 25/3 Mbps fixed service provided by
at least two facilities-based, terrestrial
providers without the use of UNEs? We
seek comment on this alternative and
the three prongs of the forbearance test.
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Is the Commission’s conclusion in the
Restoring Internet Freedom Order that
the presence of two wireline internet
service providers ‘‘can be expected to
produce more efficient outcomes than
any regulated alternative’’ relevant to
our consideration in this context? If we
were to use this alternative test, would
a census block-by-census block
forbearance decision be administrable
from the standpoint of the Commission
and affected LECs? Or should we
aggregate up our analysis to a larger unit
of measurement, such as counties?
28. For purposes of such a test, we
would expect to include fixed wireless
providers, but note that fixed wireless
penetration rates are low in our most
recent publicly available Form 477 data.
Nonetheless, recent developments in
fixed wireless services have lowered the
barriers to entry by fixed wireless
providers, and provided them with the
means of bringing effective competition
to urban areas. We seek comment on
this analysis. Does the presence of fixed
wireless providers in a census block
mean that barriers to entry are low
(suggesting no impairment of entry) or
that competition is thriving (suggesting
forbearance is appropriate)?
29. In the UNE Analog Loop and
Avoided-Cost Resale Forbearance Order,
we concluded that ‘‘price cap LEC UNE
Analog Loop obligations are
unnecessary to ensure that the charges
for voice services are just and
reasonable.’’ Do different considerations
apply for UNE DS0 Loops given their
use for provisioning broadband service
in addition to voice service?
c. UNE Narrowband Voice-Grade Loops
30. Under our rules, incumbent LECs
must provide three specific types of
unbundled narrowband voice-grade
loops: UNE Analog Loops, 64 kbps
voice-grade channels over last-mile fiber
loops when an incumbent LEC retires
copper, and the TDM capabilities of
hybrid loops. The Commission forbore
from new 64 kbps unbundling
obligations in 2015 but grandfathered
existing users. Voice-grade loops are
used almost exclusively for the
provision of voice-grade service, which
we have found customers are migrating
away from in favor of IP- and wirelessbased voice services provided by
multiple intermodal providers. These
include facilities-based fixed voice
providers such as cable companies
providing VoIP, mobile wireless
facilities-based providers and resellers,
and VoIP providers offering over-the-top
services via broadband.
31. We propose to eliminate these
unbundling obligations nationwide as
competitors do not face significant
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barriers to entering the voice-service
marketplace. Indeed, incumbent LECs
provided only about 12% of voice
subscriptions in 2017. As we have
previously found, rather than a foothold
for new entrants into the marketplace,
these legacy regulatory obligations have
become a vice, ‘‘trapping incumbent
LECs into preserving outdated
technologies and services at the cost of
a slower transition to next-generation
networks and services that benefit
American consumers and businesses.’’
We seek comment on our specific
proposals for each of the three types of
narrowband voice-grade copper loops
described below.
32. In the alternative, should we
instead find simply that the marketplace
for voice-grade loops is ‘‘sufficiently
competitive without the use of
unbundling’’ as the Commission
previously did for long-distance and
mobile services? The Commission
declined to require that UNEs be made
available for the exclusive provision of
long distance and mobile wireless
services based upon a finding that the
marketplace for those services was
competitive without reliance on UNEs.
Does the degree of intermodal
competition in today’s voice
marketplace support finding that
incumbent LECs should no longer be
required to make UNEs available for the
exclusive provision of voice services?
33. UNE Analog Loops. We propose to
extend the forbearance for UNE Analog
Loops to all remaining service areas
where this unbundling obligation still
applies. In the recent USTelecom
forbearance proceeding, we granted
relief from unbundling requirements for
UNE Analog Loops to price cap
incumbent LECs in their service areas.
We propose extending this forbearance
relief nationwide for the same reasons
we stated in the UNE Analog Loop and
Avoided-Cost Resale Forbearance Order,
including the extensive intermodal
competition present in the voice
marketplace, the harmful marketplace
distortions generated by outdated
regulations, and the reduced incentives
for both incumbent and competitive
LECs to invest in their own facilities
and to transition to next-generation
networks. We seek comment on this
proposal.
34. Do the considerations in non-price
cap areas differ from those in price cap
areas with respect to these UNEs that
can only be used to provision voicegrade service? Are any competitors
purchasing these UNEs to provide voice
services in non-price cap areas where
other voice alternatives do not exist?
Commenters should provide specific
detail whether: (1) Continued UNE
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Analog Loop requirements in non-price
cap areas remain necessary to ensure
that the charges, practices,
classifications, or regulations are just
and reasonable and are not unjustly or
unreasonably discriminatory; (2)
continued UNE Analog Loop
requirements are necessary for the
protection of consumers; and (3)
forbearance from UNE Analog Loop
requirements is consistent with the
public interest.
35. Alternatively, should we find that
competitors nationwide are no longer
impaired without access to UNE Analog
Loops in the face of the breadth of voice
alternatives we described in the UNE
Analog Loop and Avoided-Cost Resale
Forbearance Order? Our conclusions in
that Order were based on Form 477
data, which is collected on a nationwide
basis. Nevertheless, should we limit a
non-impairment finding only to price
cap areas where we have previously
forborne? If so, what is the basis for
such a limitation? We also seek
comment on whether competitors in
non-price cap areas remain impaired
without access to these voice-grade only
UNEs. Are there special or different
circumstances we should consider for
evaluating impairment in non-price cap
incumbent LEC areas?
36. Grandfathered 64 kbps Fiber
Loops. We propose to eliminate the
requirement that competitive LECs
continue to receive unbundled access to
the previously grandfathered 64 kbps
voice channels over fiber loops. We
propose to reach this outcome whether
evaluated under the impairment
standard of section 251, the forbearance
criteria of section 10, the general
standards governing Commission action
under provisions such as sections 4,
201(b), and 303(r), or any combination
thereof. We seek comment on this
proposal. The Commission forbore from
this requirement on a nationwide basis
for all incumbent LECs in 2015, finding
this unbundling burden on fiber
deployment to be disproportionate to
the ‘‘very limited’’ and decreasingly
relevant purpose the requirement
serves—to protect narrowband voice
competition as networks transition from
copper to fiber. At the same time, the
Commission grandfathered the
obligation as to existing UNE 64 kbps
voice channels over fiber loops.
37. We propose to eliminate this
grandfathered UNE 64 kbps voice
channel obligation for two reasons.
First, we believe it potentially delays
the TDM-to-IP transition by locking
incumbent LECs subject to the
grandfathering provision into
continuing to provide TDM service
where they have upgraded their
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477
networks to fiber and advanced services
are available. Second, we believe the
continued cost to incumbent LECs of
maintaining the legacy equipment and
systems necessary to continue to
support this obligation solely to protect
narrowband legacy voice is no longer
necessary in light of our prior findings
about the state of the voice services
marketplace. We seek comment on these
views. Specifically, we seek comment
on the effect the grandfathering
requirement continues to have on
incumbent and competitive LEC
incentives to deploy next-generation
networks and to transition customers to
next-generation services that are
available over such networks. In light of
intermodal voice alternatives, would a
reasonably efficient competitor deploy a
narrowband network to provide voice
service today?
38. To the extent competitors still rely
on the grandfathered 64 kbps voice
channel over fiber loops, we seek
comment on whether such competitors
remain impaired without access to this
grandfathered requirement, and whether
the three-part forbearance standard
would be met for the same reasons they
are met with respect to our UNE Analog
Loop forbearance in price cap
incumbent LEC service areas. We
believe that the respective costs already
incurred by both incumbent and
competitive LECs with respect to this
grandfathered requirement is
outweighed by the costs of continuing to
obligate incumbent LECs to maintain
and support this legacy equipment and
service, and the societal costs that
retaining this grandfathered unbundling
obligation has on the transition to IPbased networks and services. We seek
comment on this belief, including what
role it should play in our analysis. What
benefits would be gained by eliminating
this obligation? Would competitive
LECs or consumers be harmed by
eliminating their access to the
grandfathered 64 kbps voice channel?
Do any competitive LECs still use the
grandfathered 64 kbps voice channel?
39. TDM Capabilities of Hybrid Loops.
Hybrid loops are local loops ‘‘composed
of both fiber optic cable, usually in the
feeder plant, and copper wire or cable,
usually in the distribution plant.’’ In the
Triennial Review Order, the
Commission declined to order
unbundling of the packet-based
capabilities of hybrid loops. Our rules
currently require that incumbent LECs
unbundle either (1) a TDM voice-grade
capable 64 kbps channel or (2) a spare
copper loop if the requesting carrier
seeks to provide narrowband services,
and only the TDM features, functions,
and capabilities of hybrid loops if the
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requesting carrier seeks to provision
broadband services.
40. For the same reasons we forbore
from the UNE Analog Loop requirement
in price cap incumbent LEC areas, we
do not believe that UNE Hybrid Loops
continue to be necessary for the
provision of narrowband voice service.
We thus propose granting nationwide
forbearance from UNE Hybrid Loop
requirements. We seek comment on this
proposal. Are there circumstances
specific to these hybrid loops that differ
from UNE Analog Loops such that these
unbundling requirements remain
necessary for provisioning voice
service? Commenters should provide
specific detail why: (1) Continued UNE
Hybrid Loop requirements are necessary
to ensure that the charges, practices,
classifications, or regulations are just
and reasonable and are not unjustly or
unreasonably discriminatory; (2)
continued UNE Hybrid Loop
requirements are necessary for the
protection of consumers; and (3)
forbearance from UNE Hybrid Loop
requirements is consistent with the
public interest. Do any competitive
LECs today use the unbundled TDM
capabilities of hybrid loops to provision
any broadband services?
41. We note that no commenter has
claimed to use the TDM capabilities of
hybrid loops to provide broadband
service. Is that correct? To the extent
that any hybrid loops are currently
being used to provide TDM-based
broadband services, would nationwide
relief for hybrid loop unbundling
requirements better promote the
transition to next-generation networks,
including the replacement of the
remaining copper in hybrid loops with
fiber? Do incumbent LECs have hybrid
loops in rural census blocks such that
nationwide elimination of these UNEs
would eliminate consumer access to
broadband in those areas? If so, should
we consider providing more limited
geographic relief, such as only in urban
census blocks, consistent with our
proposals for UNE DS0 Loops above?
42. Alternatively, we seek comment
on whether we should find that
competitors are no longer impaired
without unbundled access to the TDMcapabilities, features, and functionalities
of hybrid loops. In the 2003 Triennial
Review Order, the Commission
concluded that competitors were
impaired on a nationwide basis without
access to these UNEs for serving mass
market customers. The Commission
went on to note, however, that this
impairment would diminish over time
as more and more fiber is deployed. Has
sufficient fiber been deployed in the
sixteen years since the Triennial Review
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Order such that competitors are no
longer impaired without access to UNE
Hybrid Loops for the purpose of serving
mass market residential customers? In
today’s marketplace, would a reasonably
efficient competitor using reasonably
efficient technology seek to provide
voice service using the TDM capabilities
of hybrid loops? Would a reasonably
efficient competitor using reasonably
efficient technology seek to provide
broadband service using the TDM
capabilities of hybrid loops?
Recognizing that hybrid loops are an
important step in the deployment of
fiber to the home, does any continued
unbundling obligation with respect to
these loops, either for broadband or
narrowband services, threaten to
frustrate deployment of and transition to
next-generation networks and services?
Commenters should specify whether
any impairment or non-impairment
faced by competitors occurs on a
nationwide basis or only in certain
geographic areas. Commenters should
also provide data to support their
contentions.
d. Subloops
43. Subloops are portions of a loop or
‘‘smaller included segment[s] of an
incumbent LEC’s local loop plant.’’
Subloops are generally ordered with the
intention of taking ‘‘the competitor all
the way to the customer.’’ Our rules
impose UNE obligations for two types of
subloops—copper and multiunit
premises subloops. Subloop unbundling
obligations only apply to incumbent
LECs’ distribution loop plant. The
Copper UNE Subloop is a portion of a
copper loop, or hybrid loop, comprised
entirely of copper wire or copper cable
that acts as a transmission facility
between any point of technically
feasible access in an incumbent LEC’s
outside plant and the end-user customer
premises. The Copper UNE Subloop
includes inside wire owned or
controlled by the incumbent LEC and
the features, functions, and capabilities
of the copper loop. Incumbent LECs
must provide competitive LECs
unbundled access to Copper UNE
Subloops for the provision of
narrowband and broadband services.
44. The Commission’s rules separately
address Multiunit Premises UNE
Subloops due to previously-found
specific ‘‘impairments associated with
facilities-based entry in multiunit
buildings or campus environments.’’
Incumbent LECs must offer unbundled
access to these subloops necessary to
access wiring at or near a multiunit
customer premises, i.e., all incumbent
LEC loop plant between the minimum
point of entry at a multiunit premises
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and the point of demarcation. Unlike
Copper UNE Subloops, the Multiunit
Premises UNE Subloop includes the
entirety of the loop plant regardless of
the capacity level or type of loop the
requesting carrier will provision to its
customer, that is, including fiber or
hybrid loops. Some competitive LECs
state that they use Multiunit Premises
UNE Subloops to ‘‘access loops
otherwise unavailable because of fiber
feeder.’’ The Multiunit Premises UNE
Subloop also includes any inside wiring
owned and controlled by the incumbent
LEC.
45. We propose to forbear or find no
impairment with respect to UNE
Subloops in the particular instances or
geographic areas where we propose to
eliminate the underlying loop to the
customer’s premises, either by
forbearance or finding no impairment.
We seek comment on this proposal. We
base our proposal on the same factors
and reasoning upon which we propose
relief applicable to each of the
underlying Copper UNE Loops
discussed above. We do not believe the
public interest would be served by
maintaining Copper UNE Subloops in
areas where the end-to-end UNE Loop
obligations have been eliminated. We
seek comment on this view.
46. We believe competitive LECs’
ability to serve their current customer
base with their own facilities-based
network will be unaffected if we
eliminate Copper UNE Subloop
obligations, noting that incumbent LECs
indicate that they sell a negligible
number of Copper UNE Subloops. Do
commenters agree? If not, commenters
should specify which types of services,
customers, and geographic areas they
believe our Copper UNE Subloop
unbundling proposal would impact. If
these unbundled subloops are
eliminated, will incumbent LECs still
provide competitive LECs access to
subloops on a commercial basis to the
extent such access is sought? Are there
alternatives for competitive LECs to
reach their end-user customers if we
eliminate Copper UNE Subloop
obligations? We also believe that
eliminating Copper UNE Subloops in
the same instances where we propose to
eliminate the underlying UNE Loop
obligation will be administratively
feasible. Do commenters agree? If not,
how might we ease any administrative
difficulties?
47. We seek more specific comment
on the Multiunit Premises UNE
Subloop. We note that these particular
unbundling obligations largely came
about to address issues related to
facilities-based competitors accessing
the customer’s location where access to
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the premises was controlled or managed
by someone other than the customer.
Should we treat the Multiunit Premises
UNE Subloop differently from the
Copper UNE Subloop? Competitive
LECs assert that special barriers still
exist to accessing multiunit premises.
Are they correct, and if so, do such
barriers justify retaining unbundled
access to subloops for multiunit
premises wiring? Are these barriers
independent of accessing the Multiunit
Premises UNE Subloop, such that
retaining this unbundled element would
still not enable competitive LECs to
access customers in such premises? Are
there alternatives to Multiunit Premises
UNE Subloops to access multiunit
premises? Do the Commission’s rules
prohibiting LECs from entering into
exclusive access contracts with the
owners of residential and commercial
multi-tenant environments make
unbundled access to these subloops
unnecessary? We seek comment on any
issues we should consider in evaluating
the extent to which Multiunit Premises
UNE Subloops should remain available
on an unbundled basis to best further
the objectives of the Act.
2. UNE Dark Fiber Transport
48. Dark fiber transport is deployed
fiber optic cable between incumbent
LEC wire centers that has not been ‘‘lit’’
through the addition of optronic
equipment that would make it capable
of carrying telecommunications. This
dark fiber facility is typically referred to
as ‘‘interoffice dark fiber.’’ The
Commission’s transport unbundling
rules define when an incumbent LEC is
required to unbundle its interoffice dark
fiber and make it available to a
requesting carrier. Where so obligated,
the incumbent LEC must lease its unlit
fiber, subject to availability, enabling
the competitive LEC to use such dark
fiber as if it were part of its own fiber
network. Thus, after deploying its own
electronics to light the dark fiber, the
competitive LEC is able to provision
service to end users served from the
wire center to which the unbundled
dark fiber transport terminates.
49. In the Triennial Review Remand
Order, the Commission applied the
impairment standard to limit the extent
to which incumbent LECs are required
to provide UNE Dark Fiber Transport.
The Commission concluded that
competitive LECs are not impaired
without access to UNE Dark Fiber
Transport when both wire centers are
classified as either Tier 1 or Tier 2,
reasoning that on such routes, ‘‘a
reasonably efficient competitor has, or
could, duplicate the facilities of the
incumbent LEC.’’ For purposes of UNE
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Dark Fiber Transport, a Tier 1 wire
center has at least four fiber-based
collocators or at least 38,000 business
lines, or both. A Tier 2 wire center is
one that does not qualify as Tier 1 but
has at least three fiber-based collocators
or at least 24,000 business lines, or both.
All other wire centers are Tier 3. As a
result, all UNE Dark Fiber Transport
that is leased today involves at least one
Tier 3 wire center end point. Tier 3 wire
centers are all wire centers that are not
classified as Tier 1 or Tier 2 wire
centers. The Commission has described
Tier 3 wire centers as those that ‘‘show
a generally low likelihood of supporting
actual or potential competitive transport
deployment.’’ We refer to these Tier 3
wire centers as ‘‘UNE triggering’’ wire
centers.
50. In the recent UNE Transport
Forbearance Order, we unanimously
forbore from UNE DS1/DS3 Transport
obligations for price cap incumbent
LECs at wire centers within a half mile
of competitive fiber. We concluded that
the presence of nearby competitive fiber
creates a sufficiently dynamic
marketplace as to protect competition
and consumers as well as further the
public interest, and forbearance was
therefore warranted.
51. Consistent with the analysis in the
UNE Transport Forbearance Order, we
propose finding that competitive LECs
are not impaired without access to
unbundled dark fiber transport to wire
centers that are within a half mile of
alternative fiber. The wire centers that
we propose would no longer be subject
to UNE Dark Fiber Transport obligations
are those for which the Commission
granted forbearance from UNE DS1/DS3
Transport obligations in the UNE
Transport Forbearance Order. We seek
comment on this proposal. Our proposal
is based on concluding that a reasonably
efficient competitor within a half mile
of alternative fiber would not be
impaired without access to UNE Dark
Fiber Transport because it should be
able to obtain such transport, if
available, on a commercial basis at
competitive rates, or by building its own
transport network. In the BDS Order, the
Commission assumed that the presence
of a second wireline provider, in
addition to the incumbent LEC, is
sufficient to discipline prices for
transport in areas with high fixed costs.
We affirmed this finding in the BDS
Remand Order. We infer that this same
assumption would apply with respect to
dark fiber assuming both the incumbent
LEC and the second provider having the
nearby competitive fiber network each
have dark fiber available for lease. Is
this assumption reasonable? Our
proposal is also informed by the
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Commission’s observation in the
Triennial Review Remand Order that
‘‘competing carriers that use UNE Dark
Fiber transport actively seek out
wholesale alternatives to the incumbent
LEC’s fiber facilities.’’ Does this
observation still hold?
52. Our forbearance analysis in the
UNE Transport Forbearance Order
relied on the proximity of a price cap
incumbent LEC wire center to
competitive lit fiber. Commenters in
that proceeding claimed that lit fiber is
no commercial substitute for dark fiber.
However, we do not propose to consider
the substitutability of lit and dark fiber
to be relevant in an impairment
analysis. While the Commission has
previously differentiated lit from dark
fiber, that has no bearing on the fact that
the existence of a nearby fiber network
suggests the ability of a reasonably
efficient competitor to self-provision its
own fiber network in competition with
the incumbent LEC, regardless of
whether that network owner offers lit
fiber services or dark fiber facilities. We
seek comment on whether our
conclusion that the existence of a
nearby competitive fiber network within
a half mile necessarily implies an ability
of at least one reasonably efficient
competitor having the ability to deploy
its own fiber such that we can
reasonably infer no impairment for
other competitors.
53. We also seek comment on whether
we should supplement the list of
incumbent LEC wire centers for which
we propose to find non-impairment for
UNE Dark Fiber Transport by adding
any Tier 3 wire centers that are within
a half mile—or potentially some longer
distance—of Tier 1 or Tier 2 wire
centers. Could we infer no impairment
as to these wire centers, due to the
proximity of either fiber-based
competitors or business line density at
the nearby Tier 1 and Tier 2 wire
centers? We note that in the BDS Order,
the Commission observed that
competitive providers sometimes build
‘‘more circuitous route[s] in anticipation
of additional demand’’ than the existing
incumbent LEC’s route between wire
centers. Moreover, we are cognizant of
the USTA II court’s discussion of how
we must consider ‘‘facilities deployment
along similar routes when assessing
impairment.’’ Should we consider this
as a separate stand-alone proposal for
unbundling relief from UNE Dark Fiber
Transport obligations? We observe that
some wire centers that are classified as
Tier 3 facilities are apparently located in
urban areas, which would suggest
similar business line density and the
likely presence of nearby Tier 1 or Tier
2 wire centers. If we were to undertake
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a one-time analysis to supplement the
list based on existing Tier 3 wire
centers, we do not believe this would be
administratively difficult. Do
commenters agree? Could we rely on the
wire center locations as set forth in the
Local Exchange Routing Guide to
determine the necessary geocoordinates
to conduct such an analysis? Are there
other publicly available sources that
would provide better wire center
location information? We ask
commenters to generally comment on
any administrative burdens associated
with wire centers for the purposes of
this supplemental proposal.
54. Are there other alternative criteria
upon which we should base an
impairment analysis? For example,
should we find that competitive LECs
are not impaired without access to UNE
Dark Fiber Transport at Tier 3 wire
centers where some threshold
percentage of end users served by the
wire center has access to at least two
facilities-based providers at 25/3 Mbps
without the use of UNEs? If so, should
we exclude satellite and mobile service
providers from counting as a facilitiesbased provider for this test? We would
consider fixed wireless to the extent we
do in our other residential competitive
tests, as discussed above. Should we
conclude that a reasonably efficient
competitor that serves such end users
could secure its own transport services
without the benefit of UNE Dark Fiber
Transport because at least one other
non-incumbent LEC facilities-based
provider has been able to serve end
users without access to UNE Dark Fiber
Transport? Are there advantages and
disadvantages to using this test? Is it
reasonable to infer that a confirmed 25/
3 Mbps end user in a service area
indicates the existence of transport
alternatives to support a finding of nonimpairment? What would be the
appropriate number of, or percentage of,
subscribers served by an individual wire
center for us to make this
determination? Should we aggregate
subscribers at multiple wire centers in
a geographic area? Is it necessary for the
Commission to identify all Tier 3 wire
centers ex ante, before concluding
whether a finding of non-impairment is
appropriate, and, if so, through what
public sources would the Commission
be able to create a comprehensive list of
such wire centers?
55. Or, should we extend forbearance
to UNE Dark Fiber Transport obligations
for the same wire centers subject to our
UNE DS1/DS3 Transport forbearance?
What factors would differ in considering
forbearance for unbundled dark fiber
transport from forbearance for lit
unbundled transport? In its 2018
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forbearance petition, USTelecom
initially sought nationwide forbearance
relief from all transport unbundling
obligations, including UNE Dark Fiber
Transport. Before USTelecom withdrew
its request for forbearance from UNE
Dark Fiber Transport obligations,
commenters provided sharply
contrasting views as to whether the
forbearance standard could be met for
granting such relief.
56. Incumbent LECs generally
disputed the relevance of UNE Dark
Fiber Transport in today’s marketplace,
pointing to how few such UNEs are
leased from the largest incumbent
providers. Verizon, for example,
claimed that it both buys a de minimis
amount of UNE Dark Fiber Transport
and sells very small volumes.
USTelecom described competitive LECs’
use of UNE Dark Fiber Transport as
playing a ‘‘negligible role in the
marketplace.’’ Moreover, USTelecom
observed that the four largest incumbent
LECs leased only 20,000 to 60,000
combined UNE Dark Fiber Transport
miles to competitive LECs, compared to
nearly 12 million dark fiber transport
miles that were made available via
commercial leasing. Incumbent LECs
also dispute that UNE Dark Fiber
Transport is primarily used by
competitive LECs to reach end users in
rural areas. For those competitive LECs
that rely on UNE Dark Fiber Transport
to provision service to a substantial
number of end users, CenturyLink
reasoned that such demand would
justify deployment of its own facilities.
57. Competitive LECs, on the other
hand, argued that access to UNE Dark
Fiber Transport was essential to the
provision of new service, often in rural
markets. For example, one competitive
LEC described its network buildout
strategy, which first requires collocation
in the incumbent LEC’s central office
followed by connection to its existing
facilities-based network using UNE Dark
Fiber Transport. This competitive LEC
emphasized that its use of UNE Dark
Fiber Transport required investment in
collocation and optronics to
operationalize the leased UNE Dark
Fiber Transport. Other commenters
contended that competitive LECs use
UNE Dark Fiber Transport as ‘‘the
critical middle-mile fiber to connect to
their own last-mile facilities.’’ We seek
comment generally on all of these
assertions and the potential application
of section 10 forbearance criteria to UNE
Dark Fiber Transport.
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3. Other UNEs
a. Network Interface Devices
58. The network interface device, or
NID, which is always located at the
customer’s premises, is defined as any
means of interconnecting the incumbent
LEC’s distribution plant to wiring at a
customer premises location. Apart from
its obligation to provide the NID
functionality as part of an unbundled
loop or subloop, an incumbent LEC
must also offer nondiscriminatory
access to the NID on an unbundled,
stand-alone basis to requesting carriers
for the purpose of connecting the
competitor’s own loop facilities.
Forbearance from this obligation would
necessarily coincide with and follow
our forbearance proposals related to
loops and subloops and previous
forbearance grants related to loops. An
incumbent LEC must permit a
requesting carrier to connect its own
loop facilities to on-premises wiring
through the incumbent LEC’s NID. The
NID is a terminal endpoint for loops.
The need for unbundled access to an
incumbent LEC’s NID arose to address
scenarios, typically in multiunit
locations, where access to the inside
wire on the premises was controlled by
a premises owner that did not want
additional NIDs installed on their
premises, or a customer had no need for
a duplicate NID.
59. Based on the record developed in
the USTelecom forbearance proceeding,
we propose to forbear from the UNE NID
obligation because it appears that standalone NIDs are not necessary for
competitive LECs to access potential
customers. Competitive and incumbent
LECs have described substantially
changed circumstances in the last twoplus decades such that this network
element may no longer serve any
meaningful purpose. Competitive
carriers are on record stating that ‘‘[a]s
a practical matter, [they] do not
purchase network interface device
elements separate from unbundled
loops.’’ AT&T is also on record stating
it sells no UNE NIDs. We seek comment
on our view that the lack of stand-alone
UNE NIDs indicates that the obligation
is not necessary to ensure just and
reasonable rates and to protect
consumers, thus justifying forbearance.
60. How often do competitive carriers
use this UNE obligation to have access
to stand-alone NIDs? How many standalone NIDs are currently purchased
from incumbent LECs? Are there still
cases where customer premises wire is
not part of the incumbent LEC’s
network, i.e., not an inside wire
subloop, and the NID is the sole means
of accessing this customer premise’s
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wire? If we eliminate UNE loop and
subloop obligations, would competitive
providers need to acquire access to NIDs
on a stand-alone basis, and if so, are
there competitive alternatives to this
network element? In the absence of an
unbundling obligation, would
incumbent LECs still provide access to
NIDs? As an alternative to forbearing
from this requirement, should we
instead find that competitive LECs are
not impaired without access to NIDs? If
so, on what basis could we make a
finding of no impairment?
b. Operations Support Systems
61. Incumbent LECs must offer
nondiscriminatory access to their
operations support systems, or OSS, for
qualifying services on an unbundled
basis. OSS consists of pre-ordering,
ordering, provisioning, maintenance
and repair, and billing functions
supported by an incumbent LEC’s
databases and information. The
Commission previously found that the
UNE OSS ‘‘requirement includes an
ongoing obligation on the incumbent
LECs to make modifications to existing
OSS as necessary to offer competitive
carriers nondiscriminatory access and to
ensure that the incumbent LEC complies
with all of its network element, resale
and interconnection obligations in a
nondiscriminatory manner.’’ OSS is
used for the provision of other UNEs,
and it is also a separate stand-alone
UNE that is used for interconnection
and other purposes, including number
porting. The Commission required
incumbent LECs to provide OSS on an
unbundled basis in the Triennial Review
Order because it found that ‘‘these
functions are essential for carriers to
serve mass market and enterprise
customers’’ and competitive LECs
providing these services are ‘‘impaired
on a national basis without access to
OSS.’’
62. We propose to forbear from the
standalone OSS unbundling
obligation—i.e., when used for purposes
other than managing other UNEs—
because we believe its very limited use
in today’s marketplace is evidence that
this standalone UNE is not necessary to
ensure either just and reasonable rates
or consumer protection and forbearance
would be consistent with the public
interest. We seek comment on this
proposal. CenturyLink asserts that ‘‘OSS
are naturally coupled to the availability
of the UNEs they support.’’ Does access
to this UNE remain necessary to
facilitate deployment of competitive
carrier networks? How does this UNE
obligation differ from other UNE
obligations, and should it be treated
differently than UNE loop and transport
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obligations, which may require more
intrusive sharing of incumbent LEC
networks?
63. If we were to eliminate the UNE
OSS obligation, are there any alternative
OSS providers on which competitive
LECs could rely, to the extent they need
to do so? We seek comment on the
assertions by TPx and Socket that they
rely on UNE OSS to serve their nonUNE based customers. We also seek
comment on whether OSS as a UNE is
necessary for competitive LECs and
other providers subject to number
porting obligations. Is there a more
efficient way to provide
nondiscriminatory access to OSS?
Alternatively, regardless of whether the
statutory elements for forbearance are
met, are competitive LECs impaired
without OSS, and should we make a
finding of no impairment?
4. Other Considerations
64. For each network element or
requirement discussed above, we seek
comment on whether requesting carriers
are no longer impaired without access to
the element or requirement under
section 251(d)(2), or whether the
forbearance criteria are met under
section 10. We also seek comment on
whether additional considerations
beyond impairment or forbearance
would justify our proposals, or any
alternatives, for each network element
or requirement discussed above.
65. In particular, the D.C. Circuit has
held that the Commission must ‘‘take
into account not only the benefits but
also the costs of unbundling (such as
discouragement of investment in
innovation),’’ which the Commission
has done ‘‘with the costs of unbundling
brought into the analysis under
§ 251(d)(2)’s ‘at a minimum’ language.’’
For example, when evaluating
unbundling previously, the Commission
has weighed the effects of unbundling
on Congress’s exhortation in section 706
of the 1996 Act that it ‘‘encourage the
deployment on a reasonable and timely
basis of advanced telecommunications
capability to all Americans’’ by
removing barriers to infrastructure
investment. The Commission more
recently also has cited other potential
costs or harms of unbundling when
addressing requests for relief from a
number of legacy wireline mandates
imposed on incumbent LECs stemming
from the 1996 Act. Such requirements
can force incumbent LECs to maintain
outdated TDM equipment even when
they no longer desire to offer those
services to their customers,
undercutting the benefits of technology
transitions. They can also distort the
marketplace by imposing unnecessary
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costs on one class of competitors alone.
The Commission has also reiterated
Justice Breyer’s observation that
‘‘mandatory unbundling comes at a cost,
including disincentives to research and
development by both incumbent LECs,
competitive LECs and the tangled
management inherent in shared use of a
common resource.’’ In addition, these
requirements can create disincentives
for competitors to invest in their own
facilities-based networks and transition
their customers to next-generation
services. We seek comment on the full
range of those and any other relevant
considerations and how they should
affect our analysis regarding each
network element or requirement
discussed above.
66. Additionally, to the extent that the
Commission has cited a given network
element or requirement discussed above
as a continuing obligation that would
remain when granting past regulatory
forbearance, we seek comment on how
that should affect our analysis here.
Given that forbearance petitions are
addressed based on the record compiled
in the relevant proceeding, we do not
believe such past citations should alter
our actions in this proceeding or require
the continued imposition of particular
requirements if the record here
persuades us that relief is warranted.
We seek comment on that view.
67. Conversely, we seek comment on
how other aspects of our regulatory
framework—such as the continued
applicability of rate regulations for DS1s
and DS3s in certain areas, the
imposition of a reasonable
comparability benchmark for voice
services in areas supported by our highcost Universal Service Fund, or the
continuing obligation of all local
exchange carriers ‘‘not to prohibit, and
not to impose unreasonable or
discriminatory conditions or limitations
on, the resale of its telecommunications
services’’—should weigh in our
analysis. We also seek comment more
generally on the impact of Commission
policy changes, including the recently
concluded USTelecom forbearance
proceeding, on the voice and broadband
marketplace.
68. In addition to a number of specific
proposals discussed above, we also seek
comment on alternative approaches for
relief with respect to each network
element or requirement discussed
above, either through the impairment
standard under section 251(d)(2) or
forbearance under section 10. For
example, is relief justified in a broader
or narrower range of geographic areas?
Are there different competitive
conditions than those identified above
that should inform our grant of relief,
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and if so, how should that relief be
tailored to those competitive
conditions? We note that some
commenters request that we defer
further unbundling relief until we
complete the process of revising our
broadband mapping data collection. In
addition, are there considerations
flowing from the network deployment
by incumbent LECs and/or competitive
LECs in a given area—such as the extent
of the providers’ progress in
implementing technology transitions—
that should inform the scope of, and
triggers for, relief? Further, how should
administrability concerns inform the
scope and mechanics of any relief we
grant? We also seek comment on
whether special considerations apply to
small businesses with respect to each of
our proposals above.
B. Avoided-Cost Resale
69. Except where we have forborne
from such obligations, incumbent LECs
must make available at regulated
wholesale rates telecommunications
services that they make available to
their own non-carrier retail customers.
In the UNE Analog Loop and AvoidedCost Resale Forbearance Order, we
granted price cap incumbent LECs relief
from the Avoided-Cost Resale
requirement. Some parties effectively
seek reconsideration of our decision to
forbear from the Avoided-Cost Resale
obligations granted in the UNE Analog
Loop and Avoided-Cost Resale
Forbearance Order, rehashing
arguments made in the record of that
proceeding. In this NPRM, we do not
revisit the decisions made in the UNE
Analog Loop and Avoided-Cost Resale
Forbearance Order, but we will consider
those commenters’ arguments filed in
the record here to the extent that they
bear on the issues raised in this
proceeding.
70. We propose to extend to non-price
cap incumbent LEC service areas the
forbearance previously granted with
respect to Avoided-Cost Resale in price
cap incumbent LEC service areas. We
seek comment on this proposal. We base
our proposal on the same reasons we
stated for granting such forbearance to
price cap LECs—i.e., ‘‘the breadth of the
voice service marketplace and the
number of wholesale input alternatives
to competitive LECs seeking to continue
serving customers currently served by
Avoided-Cost Resale.’’
71. Are there reasons why non-pricecap areas may differ from price cap
areas with respect to the Avoided-Cost
Resale requirement that is only used to
provision voice-grade service? What
have been the effects of the forbearance
granted for Avoided-Cost Resale in the
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UNE Analog Loop and Avoided-Cost
Resale Forbearance Order? Commenters
should provide specific detail as to why
continued Avoided-Cost Resale
requirements in non-price cap areas are
or are not necessary (1) to ensure that
charges, practices, classifications, or
regulations are just and reasonable and
are not unjustly or unreasonably
discriminatory; (2) to ensure the
protection of consumers; and (3) to
serve the public interest. We also seek
comment on the respective costs and
benefits of this proposal versus retaining
the status quo, as well as whether
special considerations apply to small
businesses.
C. Cost-Benefit Analysis
72. For the purpose of conducting a
cost-benefit analysis of the various
proposals and alternatives for which we
seek comment in this NPRM, as to each
network element or requirement
addressed herein, we seek comment on
how many UNEs or Avoided-Cost resold
services are currently being purchased,
and at what prices. In the absence of
unbundling and resale obligations, we
seek comment on what proportion of
these arrangements would likely shift to
alternative commercial services offered
by incumbent LECs or other
competitors, or would be selfprovisioned, and at what prices or costs.
If commenters expect that prices for
commercial alternatives for UNEs or
resold services will be higher or lower
than the current rates, we seek comment
on why that would be so. If competitive
LECs were to self-provision UNE
replacements, how should we estimate
their market prices?
73. What are the expected impacts to
investment of each network element or
requirement discussed above? If
incumbent LECs or competitive LECs
increase their investment in fiber or
next-generation services as result of any
relief, how should we account for such
increased investment in any cost-benefit
analysis? To the extent that the
elimination of certain UNEs and resold
services would have economic effects
on end users, we seek comment as to the
magnitude of these effects and how we
should quantify them. For example,
how can we quantify the benefits of
migrating users to next-generation
services or higher speed networks?
Should we confine our analysis to
consumers that currently rely on UNEs
or resold services (presumably
indirectly) or take into account the
network effects that migrations to new
networks could have on all consumers?
74. We also seek comment on the
benefits of lower compliance costs for
incumbent LECs and other parties, and
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any other benefits and costs of our
proposed actions. More generally, for
each network element or requirement
discussed above, we seek comment on
the respective costs and benefits of
particular alternative rules or
approaches as compared to retaining the
current unbundling requirement.
D. Transition Plan
75. We propose, for all UNE and
Avoided-Cost Resale relief that we
provide, a three-year transition period
for existing customers. We seek
comment on whether we should include
a six-month transition period for new
orders, and if so, for what elements of
relief. We seek comment on this
proposal.
76. Our proposal is consistent with
the UNE Transport Forbearance Order
and the UNE Analog Loop and AvoidedCost Resale Order, both of which
provide three-year transition periods. In
those orders, we reasoned that three
years was sufficient ‘‘to fully ensure that
current and potential competition plays
its expected role’’ to ensure just and
reasonable rates, and for competitive
LECs ‘‘to replace their embedded base of
legacy TDM customer premises
equipment and other increasingly
obsolete TDM-based peripheral devices
with new IP-capable equipment.’’
Similarly, the BDS Order provided a
uniform transition period of three years
to allow existing customers to facilitate
their transition to alternative facilities or
arrangements. Here, consistent with
those orders, we also propose a threeyear transition for any eliminated UNE
and Avoided-Cost Resale obligations,
whether we grant such relief through a
finding of non-impairment or through
forbearance. We believe that this
transition period supplies the necessary
incentives for both incumbent and
competitive LECs alike to deploy their
own next-generation networks as
expeditiously as possible, while
ensuring that end users do not
experience undue service disruption.
77. What conditions, if any, should
apply to a transition period? Are there
special circumstances that require
longer or shorter transition periods for
any particular UNEs? Should we
provide different transition periods for
UNEs that we grant relief for based on
a non-impairment finding vs. those
based on forbearance? What about for
Avoided Cost Resale? Should we
provide a longer grandfathering period
for Puerto Rico, for reasons similar to
the unique Puerto Rico transition
periods adopted in our recent
forbearance orders?
78. We recognize that the transition
mechanism is simply a default process
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and carriers remain free to negotiate
alternative arrangements superseding
this transition period. Any transition
mechanism would not replace or
supersede any commercial arrangements
carriers have reached for the continued
provision of facilities or services.
79. Alternatively, we seek comment
on a transition period that is shorter
than three years for existing customers.
In the BDS Order, the Commission
found that the presence of a nearby
potential BDS competitor would be
expected to provide reasonably
competitive outcomes for DS1 and DS3
services over three to five years. In the
UNE Transport Forbearance Order, we
concluded that ‘‘connecting nearby fiber
. . . is unlikely to take a full three years
for any individual alternative transport
link,’’ but also noted that two years had
elapsed since the BDS Order and a
three-year transition would coincide
with the outer bound of the
Commission’s three to five year
expectation in the BDS Order; in the
UNE Analog Loop and Avoided-Cost
Resale Order, we noted that a three-year
period was consistent with prior
Commission action and ‘‘should provide
more than enough time for competitive
LECs and their customers to transition.’’
Should we set a transition deadline of
August 2, 2022, which would align the
transition period with those of the UNE
Transport Forbearance Order and the
UNE Analog Loop and Avoided-Cost
Resale Order? If so, should we tie this
shorter transition period to only some
relief or all relief granted? What are the
administrative benefits of syncing the
transitions? Are such benefits
outweighed by what would be a shorter
transition for those UNE and AvoidedCost Resale obligations that we seek
comment on today?
80. We note that in the Triennial
Review Remand Order, after finding
non-impairment, the Commission
provided a transition period of twelve
months for high-capacity loops and DS1
and DS3 transport for existing
customers and eighteen months for UNE
Dark Fiber Transport for existing
customers. What, if any, weight should
we place on this prior transition
timeframe with respect to current UNE
obligations that are eliminated through
a finding of non-impairment?
Commenters should provide any other
input or considerations that should
factor into our transition timeframe
determinations.
II. Initial Regulatory Flexibility
Analysis
81. As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA), the Commission has prepared
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this Initial Regulatory Flexibility
Analysis (IRFA) of the possible
significant economic impact on small
entities by the policies and rules
proposed in this Notice of Proposed
Rulemaking (NPRM). The Commission
requests written public comments on
this IRFA. Comments must be identified
as responses to the IRFA and must be
filed by the deadlines for comments
provided on the first page of the NPRM.
The Commission will send a copy of the
NPRM, including this IRFA, to the Chief
Counsel for Advocacy of the Small
Business Administration (SBA). In
addition, the NPRM and IRFA (or
summaries thereof) will be published in
the Federal Register.
A. Need for, and Objectives of, the
Proposed Rules
82. In the NPRM, we propose to
modernize our unbundling and related
rules for local loops and dark fiber
transport, as well as other types of
network elements. Specifically, the
Commission proposes to eliminate UNE
DS1 and DS3 loop obligations in
counties and study areas deemed
competitive in the BDS Order and the
RoR BDS Order, UNE loops in urban
census blocks, unbundled dark fiber
transport to wire centers that are within
a half mile of alternative fiber, UNE
subloops in the particular instances or
geographic areas where we propose to
find no impairment for UNE DS0 loops
for the underlying loop to the
customer’s premises, the UNE Analog
Loop obligation where it still applies,
the unbundling requirement for the
narrowband frequencies of hybrid loops,
the stand-alone UNE network interface
device (NID) obligation, the operations
support systems (OSS) unbundling
obligation, except in the case where it
is used for managing other UNEs, and
avoided-cost resale obligations in nonprice cap areas.
B. Legal Basis
83. The legal basis for any action that
may be taken pursuant to the NPRM is
contained in sections 1 through 4, 10,
and 201, 202, and 251 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151 through 154,
160, 201, 202, and 251.
C. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Will Apply
84. The RFA directs agencies to
provide a description of, and where
feasible, an estimate of the number of
small entities that may be affected by
the proposed rules and by the rule
revisions on which the NPRM seeks
comment, if adopted. The RFA generally
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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.
1. Total Small Entities
85. Small Businesses, Small
Organizations, Small Governmental
Jurisdictions. Our actions, over time,
may affect small entities that are not
easily categorized at present. We
therefore describe here, at the outset,
three broad groups of small entities that
could be directly affected herein. First,
while there are industry specific size
standards for small businesses that are
used in the regulatory flexibility
analysis, according to data from the
SBA’s Office of Advocacy, in general a
small business is an independent
business having fewer than 500
employees. These types of small
businesses represent 99.9% of all
businesses in the United States which
translates to 30.2 million businesses.
86. Next, the type of small entity
described as 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 August 2016,
there were approximately 356,494 small
organizations based on registration and
tax data filed by nonprofits with the
Internal Revenue Service (IRS).
87. Finally, the small entity described
as a ‘‘small governmental jurisdiction’’
is defined generally as ‘‘governments of
cities, towns, townships, villages,
school districts, or special districts, with
a population of less than fifty
thousand.’’ U.S. Census Bureau data
from the 2012 Census of Governments
indicates that there were 90,056 local
governmental jurisdictions consisting of
general purpose governments and
special purpose governments in the
United States. Of this number there
were 37,132 general purpose
governments (county, municipal and
town or township) with populations of
less than 50,000 and 12,184 special
purpose governments (independent
school districts and special districts)
with populations of less than 50,000.
The 2012 U.S. Census Bureau data for
most types of governments in the local
government category shows that the
majority of these governments have
populations of less than 50,000. Based
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on these data we estimate that at least
49,316 local government jurisdictions
fall in the category of ‘‘small
governmental jurisdictions.’’
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2. Broadband Internet Access Service
Providers
88. Internet Service Providers
(Broadband). Broadband Internet
service providers include wired (e.g.,
cable, DSL) and VoIP service providers
using their own operated wired
telecommunications infrastructure fall
in the category of Wired
Telecommunication Carriers. Wired
Telecommunications Carriers are
comprised of establishments primarily
engaged in operating and/or providing
access to transmission facilities and
infrastructure that they own and/or
lease for the transmission of voice, data,
text, sound, and video using wired
telecommunications networks.
Transmission facilities may be based on
a single technology or a combination of
technologies. The SBA size standard for
this category classifies a business as
small if it has 1,500 or fewer employees.
U.S. 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.
Consequently, under this size standard,
the majority of firms in this industry can
be considered small.
3. Wireline Providers
89. 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 show that there were 3,117
firms that operated that year. Of this
total, 3,083 operated with fewer than
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1,000 employees. Thus, under this size
standard, the majority of firms in this
industry can be considered small.
90. Incumbent Local Exchange
Carriers (Incumbent LECs). Neither the
Commission nor the SBA has developed
a small business size standard
specifically for incumbent LEC services.
The closest applicable size standard
under SBA rules is for the category
Wired Telecommunications Carriers as
defined above. 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. A total
of 1,307 firms reported that they were
incumbent local exchange service
providers. Of this total, an estimated
1,006 have 1,500 or fewer employees.
91. 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 above. 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. Also, 72
carriers have reported that they are
Other Local Service Providers. Of this
total, 70 have 1,500 or fewer employees.
Consequently, based on internally
researched FCC data, the Commission
estimates that most providers of
competitive local exchange service,
competitive access providers, SharedTenant Service Providers, and Other
Local Service Providers are small
entities.
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92. We have included small
incumbent LECs in this present RFA
analysis. As noted above, a ‘‘small
business’’ under the RFA is one that,
inter alia, meets the pertinent small
business size standard (e.g., a telephone
communications business having 1,500
or fewer employees), and ‘‘is not
dominant in its field of operation.’’ The
SBA’s Office of Advocacy contends that,
for RFA purposes, small incumbent
LECs are not dominant in their field of
operation because any such dominance
is not ‘‘national’’ in scope. We have
therefore included small incumbent
LECs in this RFA analysis, although we
emphasize that this RFA action has no
effect on Commission analyses and
determinations in other, non-RFA
contexts.
93. 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
above. The applicable size standard
under SBA rules is that such a business
is small if it has 1,500 or fewer
employees. U.S. Census data for 2012
indicates that 3,117 firms operated
during that year. Of that number, 3,083
operated with fewer than 1,000
employees. According to internally
developed 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.
Consequently, the Commission
estimates that the majority of IXCs are
small entities that may be affected by
our proposed rules.
94. Local Resellers. The SBA has
developed a small business size
standard for the category of
Telecommunications Resellers. The
Telecommunications Resellers industry
comprises establishments engaged in
purchasing access and network capacity
from owners and operators of
telecommunications networks and
reselling wired and wireless
telecommunications services (except
satellite) to businesses and households.
Establishments in this industry resell
telecommunications; they do not
operate transmission facilities and
infrastructure. Mobile virtual network
operators (MVNOs) are included in this
industry. Under that size standard, such
a business is small if it has 1,500 or
fewer employees. Census data for 2012
show that 1,341 firms provided resale
services during that year. Of that
number, all operated with fewer than
1,000 employees. Thus, under this
category and the associated small
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business size standard, the majority of
these prepaid calling card providers can
be considered small entities.
95. Other Toll Carriers. Neither the
Commission nor the SBA has developed
a definition 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 above. Under the applicable
SBA 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. Thus, under this
category and the associated small
business size standard, the majority of
Other Toll Carriers can be considered
small. According to internally
developed 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 are small entities that may
be affected by rules adopted pursuant to
the Second Further Notice.
96. Operator Service Providers (OSPs).
Neither the Commission nor the SBA
has developed a small business size
standard specifically for operator
service providers. The appropriate size
standard under SBA rules is for the
category Wired Telecommunications
Carriers. Under that size standard, such
a business is small if it has 1,500 or
fewer employees. According to
Commission data, 33 carriers have
reported that they are engaged in the
provision of operator services. Of these,
an estimated 31 have 1,500 or fewer
employees and two have more than
1,500 employees. Consequently, the
Commission estimates that the majority
of OSPs are small entities.
4. Wireless Providers—Fixed and
Mobile
97. Wireless Telecommunications
Carriers (except Satellite). This industry
comprises establishments engaged in
operating and maintaining switching
and transmission facilities to provide
communications via the airwaves.
Establishments in this industry have
spectrum licenses and provide services
using that spectrum, such as cellular
services, paging services, wireless
internet access, and wireless video
services. The appropriate size standard
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under SBA rules is that such a business
is small if it has 1,500 or fewer
employees. For this industry, U.S.
Census data for 2012 show that there
were 967 firms that operated for the
entire year. Of this total, 955 firms had
employment of 999 or fewer employees
and 12 had employment of 1000
employees or more. Thus under this
category and the associated size
standard, the Commission estimates that
the majority of wireless
telecommunications carriers (except
satellite) are small entities.
98. According to internally developed
Commission data, 413 carriers reported
that they were engaged in the provision
of wireless telephony, including cellular
service, Personal Communications
Service, and Specialized Mobile Radio
Telephony services. Of this total, an
estimated 261 have 1,500 or fewer
employees, and 152 have more than
1,500 employees. Thus, using available
data, we estimate that the majority of
wireless firms can be considered small.
99. Wireless Communications
Services. This service can be used for
fixed, mobile, radiolocation, and digital
audio broadcasting satellite uses. The
Commission defined ‘‘small business’’
for the wireless communications
services (WCS) auction as an entity with
average gross revenues of $40 million
for each of the three preceding years,
and a ‘‘very small business’’ as an entity
with average gross revenues of $15
million for each of the three preceding
years. The SBA has approved these
definitions.
100. Wireless Telephony. Wireless
telephony includes cellular, personal
communications services, and
specialized mobile radio telephony
carriers. The closest applicable SBA
category is Wireless
Telecommunications Carriers (except
Satellite). Under the SBA small business
size standard, a business is small if it
has 1,500 or fewer employees. For this
industry, U.S. Census Bureau 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 and 12 firms had 1000
employees or more. Thus under this
category and the associated size
standard, the Commission estimates that
a majority of these entities can be
considered small. According to
Commission data, 413 carriers reported
that they were engaged in wireless
telephony. Of these, an estimated 261
have 1,500 or fewer employees and 152
have more than 1,500 employees.
Therefore, more than half of these
entities can be considered small.
101. All Other Telecommunications.
‘‘All Other Telecommunications’’ is
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485
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 clientsupplied 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 $35 million or less.
For this category, census data for 2012
show that there were 1,442 firms that
operated for the entire year. Of these
firms, a total of 1,400 had gross annual
receipts of less than $25 million.
Consequently, we estimate that the
majority of All Other
Telecommunications firms are small
entities that might be affected by our
action.
D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
102. The NPRM propose changes to,
and seeks comment on, the
Commission’s unbundling and related
rules for local loops and dark fiber
transport, as well as other types of
network elements. The objective of the
proposed modifications is to encourage
the deployment of next-generation
networks and unburden incumbent
LECs where there is substantial
evidence of facilities-based competition
and market entry. Beyond the benefits
that providers will enjoy from a
decreased regulatory burden on their
day-to-day operations, these changes
would not affect the reporting,
recordkeeping, and other compliance
requirements of carriers, some of which
are small entities.
E. Steps Taken To Minimize the
Significant Economic Impact on Small
Entities, and Significant Alternatives
Considered
103. 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
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requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance and reporting requirements
under the rules for such small entities;
(3) the use of performance rather than
design standards; and (4) an exemption
from coverage of the rule, or any part
thereof, for such small entities.
104. The rule changes proposed by
the NPRM would reduce the economic
impact and market distortions of the
Commission’s unbundling rules on
incumbent LECs and would increase the
incentives for incumbent LECs and new
entrants to invest in new facilities and
deploy new technologies. We seek
comment as to any additional economic
burden incurred by small entities that
may result from the rule changes
proposed in the NPRM.
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F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
105. None.
III. Procedural Matters
106. Paperwork Reduction Act of 1995
Analysis. This document does not
contain proposed information
collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13. In addition, therefore, it
does not contain any new or modified
information collection burden for small
business concerns with fewer than 25
employees, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
107. Initial Regulatory Flexibility
Analysis. An initial regulatory flexibility
analysis (IRFA) is set forth above.
Comments to the IRFA must be
identified as responses to the IRFA and
filed by the deadlines for comments on
the Notice of Proposed Rulemaking. The
Commission will send a copy of the
Notice of Proposed Rulemaking,
including the IRFA, to the Chief
Counsel for Advocacy of the Small
Business Administration.
108. Ex Parte Information. This
proceeding shall be treated as a ‘‘permitbut-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 list all persons
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attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and 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 section 1.1206(b) of the
Commission’s rules. In proceedings
governed by section 1.49(f) of the
Commission’s rules 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.
IV. Ordering Clauses
109. Accordingly, it is ordered that,
pursuant to sections 1 through 4, 10,
201, 202, and 251 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151 through 154,
160, 201, 202, and 251, this Notice of
Proposed Rulemaking is adopted.
110. It is further ordered that the
Commission’s Consumer &
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Notice of Proposed Rulemaking,
including the Initial Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 51
Communications common carriers,
Telecommunications.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rule
For the reasons discussed in the
preamble, the Federal Communications
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Commission proposes to amend 47 CFR
part 51 as follows:
PART 51—INTERCONNECTION
1. The authority citation for part 51
continues to read as follows:
■
Authority: 47 U.S.C. 151 through 155, 201
through 205, 207 through 209, 218, 225
through 227, 251 through 252, 271, 332
unless otherwise noted.
2. Amend § 51.319 by:
a. Revising paragraph (a)(1);
b. Removing paragraph (a)(3)(iii)(C);
and
■ c. Revising paragraphs (a)(4)(i),
(a)(5)(i), (b), and (d)(2)(iv).
The revisions read as follows:
■
■
■
§ 51.319 Specific unbundling
requirements.
(a) * * *
(1) Copper loops. An incumbent LEC
shall provide a requesting
telecommunications carrier with
nondiscriminatory access to the copper
loop in census blocks defined as rural
by the Census Bureau on an unbundled
basis. A copper loop is a stand-alone
local loop comprised entirely of copper
wire or cable. Copper loops include
two-wire and four-wire analog voicegrade copper loops, digital copper loops
(e.g., DS0s and integrated services
digital network lines) as well as twowire and four-wire copper loops
conditioned to transmit the digital
signals needed to provide digital
subscriber line services, regardless of
whether the copper loops are in service
or held as spares. The copper loop
includes attached electronics using time
division multiplexing technology, but
does not include packet switching
capabilities as defined in paragraph
(a)(2)(i) of this section. The availability
of DS1 and DS3 copper loops is subject
to the requirements of paragraphs (a)(4)
and (5) of this section.
*
*
*
*
*
(4) * * * (i) Subject to the cap
described in paragraph (a)(4)(ii) of this
section, an incumbent LEC shall provide
a requesting telecommunications carrier
with nondiscriminatory access to a DS1
loop on an unbundled basis to any
building not served by a wire center
with at least 60,000 business lines and
at least four fiber-based collocators.
Once a wire center exceeds both the
business line and fiber-based collocator
thresholds, no future DS1 loop
unbundling will be required in that wire
center. In addition, a DS1 loop only is
available to a building located in one or
more of the following: (A) Any county
or portion of a county served by a price
cap incumbent LEC that is not included
on the list of counties that have been
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deemed competitive pursuant to the
competitive market test established
under 49 CFR 69.803; (B) any study area
served by a rate-of-return incumbent
LEC provided that study area is not
included on the list of competitive
study areas pursuant to the competitive
market test established under 47 CFR
61.50; or (C) any census block defined
as rural by the Census Bureau if being
requested solely to serve residential
customers. A DS1 loop is a digital local
loop having a total digital signal speed
of 1.544 megabytes per second. DS1
loops include, but are not limited to,
two-wire and four-wire copper loops
capable of providing high-bit rate digital
subscriber line services, including T1
services.
*
*
*
*
*
(5) DS3 loops. (i) Subject to the cap
described in paragraph (a)(5)(ii) of this
section, an incumbent LEC shall provide
a requesting telecommunications carrier
with nondiscriminatory access to a DS3
loop on an unbundled basis to any
building not served by a wire center
with at least 38,000 business lines and
at least four fiber-based collocators.
Once a wire center exceeds the business
line and fiber-based collocator
thresholds, no future DS3 loop
unbundling will be required in that wire
center. In addition, a DS3 loop only is
available to a building located in one of
the following: (A) Any county or portion
of a county served by a price cap
incumbent LEC that is not included on
the list of counties that have been
deemed competitive pursuant to the
competitive market test established
under 49 CFR 69.803; or (B) any study
area served by a rate-of-return
incumbent LEC provided that study area
is not included on the list of
competitive study areas pursuant to the
competitive market test established
under 47 CFR 61.50. A DS3 loop is a
digital local loop having a total digital
signal speed of 44.736 megabytes per
second.
*
*
*
*
*
(b) Subloops. An incumbent LEC shall
provide a requesting
telecommunications carrier with
nondiscriminatory access to subloops
on an unbundled basis in accordance
with section 251(c)(3) of the Act and
this part and as set forth in paragraph
(b) of this section, provided that the
underlying loop is available as set forth
in paragraph (a) of this section.
*
*
*
*
*
(d) * * *
(2) * * *
(iv) Dark fiber transport. Dark fiber
transport consists of unactivated optical
interoffice transmission facilities.
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Incumbent LECs shall unbundle dark
fiber transport between any pair of
incumbent LEC wire centers except
where, through application of tier
classifications described in paragraph
(d)(3) of this section, where both wire
centers defining the route are either Tier
1, Tier 2, or a Tier 3 wire center
identified on the list of wire centers that
has been found to be within a half mile
of alternative fiber pursuant to the
Report and Order on Remand and
Memorandum Opinion and Order in
WC Docket No. 18–14, FCC 19–66
(released July 12, 2019). An incumbent
LEC must unbundle dark fiber transport
if a wire center on either end of a
requested route is a Tier 3 wire center
that is not on the published list of wire
centers.
*
*
*
*
*
[FR Doc. 2019–27607 Filed 1–3–20; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R6–ES–2019–0055;
FXES11130900000C6–123–FF09E30000]
RIN 1018–BD49
Endangered and Threatened Wildlife
and Plants; Removing the Kanab
Ambersnail From the List of
Endangered and Threatened Wildlife
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
remove the Kanab ambersnail (Oxyloma
haydeni kanabensis) from the Federal
List of Endangered and Threatened
Wildlife. This determination is based on
a thorough review of the best available
scientific information. Our review
indicates that Kanab ambersnail is not a
valid subspecies and therefore cannot be
listed as an endangered entity under the
Act. We are seeking information and
comments from the public regarding
this proposed rule.
DATES: We will accept comments
received or postmarked on or before
March 6, 2020. Please note that if you
are using the Federal eRulemaking
Portal (see ADDRESSES), the deadline for
submitting an electronic comment is
11:59 p.m. Eastern Time on the closing
date. We must receive requests for a
public hearing, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by February 20, 2020.
SUMMARY:
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487
Comment submission: You
may submit comments by one of the
following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R6–ES–2019–0055, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
resulting page, in the Search panel on
the left side of the screen, under the
Document Type heading, click on the
Proposed Rule box to locate this
document. You may submit a comment
by clicking on ‘‘Comment Now!’’ If your
comments will fit in the provided
comment box, please use this feature of
https://www.regulations.gov, as it is most
compatible with our comment review
procedures. If you attach your
comments as a separate document, our
preferred file format is Microsoft Word.
If you attach multiple comments (such
as form letters), our preferred formation
is a spreadsheet in Microsoft Excel.
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R6–ES–2019–
0055, U.S. Fish and Wildlife Service,
MS: BPHC, 5275 Leesburg Pike, Falls
Church, VA 22041–3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Document availability: This proposed
rule and supporting documents,
including a copy of the recovery plan
and the 5-year review referenced
throughout this document, are available
on https://www.regulations.gov at Docket
No. FWS–R6–ES–2019–0055. In
addition, the supporting file for this
proposed rule will be available for
public inspection, by appointment,
during normal business hours, at the
Utah Ecological Services Field Office,
2369 West Orton Circle, Suite 50, West
Valley City, UT 84119; telephone 801–
975–3330. Persons who use a
telecommunications device for the deaf
(TDD) may call the Federal Relay
Service at 800–877–8339.
FOR FURTHER INFORMATION CONTACT:
Larry Crist, Field Supervisor, telephone
801–975–3330, ext. 61912. Direct all
questions or requests for additional
information to: KANAB AMBERSNAIL
QUESTIONS, U.S. Fish and Wildlife
Service, Utah Ecological Services Field
Office, 2369 West Orton Circle, Suite 50,
West Valley City, UT 84119. Persons
who use a TDD may call the Federal
Relay Service at 800–877–8339.
ADDRESSES:
E:\FR\FM\06JAP1.SGM
06JAP1
Agencies
[Federal Register Volume 85, Number 3 (Monday, January 6, 2020)]
[Proposed Rules]
[Pages 472-487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27607]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 51
[WC Docket No. 19-308; FCC 19-119; FRS 16321]
Modernizing Unbundling and Resale Requirements in an Era of Next-
Generation Networks and Services
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission seeks
comment on a number of proposals to modernize unbundling and resale
obligations applicable to incumbent local exchange carriers (incumbent
LECs) for local loops, dark fiber transport, and other types of network
elements. The Commission also seeks comment on costs associated with
specific unbundled network elements and resold services and on a
transition period for all unbundling and resale relief that may be
provided.
DATES: Comments are due on or February 5, 2020, and reply comments are
due on or before March 6, 2020.
ADDRESSES: You may submit comments, identified by WC Docket No. 19-308,
by any of the following methods:
Federal Communications Commission's website: https://www.fcc.gov/ecfs/. Follow the instructions for submitting comments.
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
9050 Junction Drive, Annapolis Junction, MD 20701. 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 [email protected] 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.
FOR FURTHER INFORMATION CONTACT: Michele Levy Berlove, Competition
Policy Division, Wireline Competition Bureau, at (202) 418-1477,
[email protected].
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in WC Docket No. 19-308, adopted on
November 22, 2019 and released on November 25, 2019. The full text of
the document is available at https://docs.fcc.gov/public/attachments/FCC-19-119A1.pdf. The full text is also 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. To
request materials in accessible formats for people with disabilities
(e.g., braille, large print, electronic files, audio format, etc.) or
to request reasonable accommodations (e.g., accessible format
documents, sign language interpreters, CART, etc.), send an email to
[email protected] or call the Consumer & Governmental Affairs Bureau at
(202) 418-0530 (voice) or (202) 418-0432 (TTY).
Synopsis
I. Notice of Proposed Rulemaking
1. In this Notice of Proposed Rulemaking (NPRM), we propose to
modernize our unbundling rules for local loops, dark fiber transport,
and other types of network elements to reflect the vastly changed
communications environment since the Commission last examined
unbundling obligations through the impairment lens. These legacy
obligations appear to no longer make any sense in many geographic areas
due to vigorous competition for business data services, mass market
broadband services, and numerous intermodal voice capabilities and
services. In practice, these obligations appear to both discourage the
deployment of next-generation
[[Page 473]]
networks and unnecessarily burden incumbent LECs.
A. Modernizing Unbundling Obligations for Today's Communications
Marketplace
2. Recognizing that the ``purpose of the Act is not to provide the
widest possible unbundling,'' but ``to stimulate competition--
preferably genuine, facilities-based competition,'' we seek comment on
how best to modernize incumbent LECs' remaining unbundling obligations.
While UNEs in some circumstances have provided a path for competitors
to enter markets they might not otherwise be able to have economically
justified entering, the Commission has long recognized that ``excessive
network unbundling requirements tend to undermine the incentives of
both incumbent LECs and new entrants to invest in new facilities and
deploy new technology.'' Therefore, the Commission has never viewed the
UNE obligations as being of infinite, or even indefinite, duration,
particularly in light of Congress's inclusion in the 1996 Act of the
means for the Commission to analyze the continued necessity of those
requirements. Indeed, Congress specifically contemplated a future time
when the continued need for section 251(c) unbundling obligations may
be reevaluated. Today's marketplace is characterized by robust
intermodal competition for voice and broadband services that may render
many remaining unbundling obligations unnecessary or even actively
harmful by impeding the deployment of and transition to more
technologically advanced networks and services. Our proposals in this
NPRM are informed by recent evidence demonstrating the availability of
intermodal competition, as well as specific Commission findings based
on comprehensive industry data that certain last mile loop and
transport unbundling obligations are no longer necessary. We
acknowledge, however, that there remains a digital divide between urban
areas, which boast increasing numbers of intermodal broadband
providers, and rural areas. Because UNEs may have continued benefits in
providing broadband access to Americans in rural areas--where achieving
scale is harder and thus competitive entry is harder--we propose to
maintain existing unbundling of mass market broadband-capable loops in
rural areas.
1. UNE Loops
3. Loops generally provide ``the last mile of a carrier's network
that enables the end-user to originate and receive communications.''
Incumbent LECs are required to provide unbundled access to three
general types of loop facilities: (1) DS1 and DS3 loops, (2) DS0 loops,
and (3) the TDM-capabilities, features, and functionalities of hybrid
copper/fiber loops. Incumbent LECs are also required to provide
unbundled access to 64 kbps voice-grade channels over fiber loops to
existing customers. Incumbent LECs must also provide unbundled access
to UNE Analog Loops in non-price cap incumbent LEC service areas. In
adopting loop unbundling requirements, the Commission clarified that
all loop types may be used ``across a range of customer categories''
and that the UNE requirements apply equally to all classes served. At
the same time, the Commission observed that the different types of loop
facilities ``as a practical matter, typically serve distinct classes of
customers, resulting in different economic considerations for
competitive carriers seeking to self-deploy.'' We factor these
observations and considerations, along with the ``reasonably efficient
competitor'' aspect of the impairment standard, into our proposals
below.
a. UNE DS1 and DS3 Loops
4. The Commission's rules require incumbent LECs to unbundle DS1
and DS3 loops, which are last-mile transmission facilities operating at
a total digital signal speed of 1.544 Mbps and 44.736 Mbps,
respectively. These loops, which are used primarily to serve enterprise
customers, are not available as UNEs in all locations. Rather, the
Commission limited the availability of UNE DS1 and DS3 Loops based on
``both a minimum number of business lines served by a wire center and
the presence of a minimum number of fiber-based collocators,'' noting
that ``[a] high concentration of business lines generally indicates a
likely concentration of large, multi-story commercial buildings,''
which a reasonably efficient competitor could serve by building its own
fiber-based facilities. Under our rules, the relevant thresholds for
unbundling differ as to DS1 loops and DS3 loops. UNE DS1 Loops are only
available ``to any building not served by a wire center with at least
60,000 business lines and at least four fiber-based collocators.'' UNE
DS3 Loops are only available ``to any building not served by a wire
center with at least 38,000 business lines and at least four fiber-
based collocators.'' The Commission also capped the availability of
unbundled DS1 and DS3 loops in a single building, recognizing that at
certain thresholds of total bandwidth demanded at a particular
location, it was feasible for competitive providers to self-provision
and thus no impairment existed.
5. We propose to find no impairment with respect to UNE DS1 and DS3
Loops in (1) counties served by price cap incumbent LECs found to be
competitive pursuant to the BDS Order; and (2) the study areas deemed
competitive as a result of our decision to allow certain rate-of-return
incumbent LECs to elect incentive regulation for their business data
services, subject to a narrow residential carve-out described below. We
do not include the ``Counties Deemed Grandfathered'' within our
category of BDS competitive counties. We refer collectively herein to
the BDS competitive counties and the competitive rate-of-return carrier
study areas as the BDS Competitive Counties and Study Areas. We seek
comment on this proposal.
6. Our proposal is based on the competitive findings in the BDS
Order and the RoR BDS Order. In the BDS Order, based on the most
extensive data collection that the Commission has ever undertaken, the
Commission concluded that ``[t]o a large extent in the business data
services market, the competition envisioned in the [1996 Act] has been
realized.'' It explained that incumbent LECs ``once dominated'' the
market by selling TDM-based DS1s and DS3s, but those services were
being eclipsed by packet-based services sold by incumbent LECs,
competitive LECs, cable providers, and other intermodal competitors.
The Commission developed a competitive market test for price cap
incumbent LECs' DS1 and DS3 services ``with the goal of promoting
innovation and investment and recognizing recent trends and
developments in the BDS marketplace'' and ``to determine which local
markets are sufficiently competitive to warrant deregulation.'' The
competitive market test deemed a price cap county competitive if either
(1) 50% of the buildings in the county with BDS demand were within a
half mile of a location served by competitive fiber, a distance at
which the Commission found competitive providers actively competed for
customers; or (2) 75% of census blocks within the county were served by
cable with a minimum offering of 10/1 Mbps, suggesting that the cable
provider had deployed sufficient capacity in its network to provide
business data services. The Commission found that 91.1% of locations
with business data services demand in price cap areas were deemed to be
sufficiently competitive to eliminate ex ante pricing regulation for
those services. It thus deemed 60% of
[[Page 474]]
price cap counties competitive for purposes of DS1 and DS3 channel
terminations and found the remaining 40% (largely in more rural areas)
non-competitive. The Commission subsequently adopted a similar
competitive market test for rate-of-return incumbent LECs that have
elected incentive regulation based on rate-of-return incumbent LEC
study areas. This test, based on the second prong of the BDS Order's
competitive market test, eliminated ex ante pricing regulation for DS1
and DS3 services in 16 rate-of-return study areas where cable providers
offered 10/1 Mbps or higher speeds to at least 75% of census blocks.
The Eighth Circuit affirmed the Commission's use of the competitive
market test in the BDS Order, including the test's reliance on the
competitive fiber facilities within a half mile and finding that cable
services are ``increasingly functioning as substitutes for BDS.''
7. We believe the BDS Order's findings eliminating ex ante pricing
regulation of DS1 and DS3 business data services are applicable to the
unbundling context. If we eliminate these specific UNEs in the BDS
Competitive Counties and Study Areas, DS1 and DS3 services will remain
available for purchase on a commercial basis as business data services.
We understand that there are no material operational or performance
distinctions between UNE DS1 and DS3 Loops and DS1 and DS3 business
data services. The Commission has previously found that these two types
of services are ``particularly close substitutes'' and thus are a part
of the same competitive environment. Do commenters agree? Is there any
meaningful difference between UNE DS1 and DS3 Loops and BDS DS1 and DS3
end user channel terminations or their terms of service, other than
pricing? Even if there is such a difference, does unbundled access to
UNE DS1 and DS3 Loops remain necessary in BDS Competitive Counties or
Study Areas in the current communications marketplace with its
extensive and increasing intermodal competition? In light of the
increasing demand for higher-bandwidth and packet-based data services
and the corresponding declining demand for DS1 and DS3 services, do DS1
and DS3 loops constitute reasonably efficient technology such that a
reasonably efficient competitor would rely on them to compete for BDS
customers?
8. Our proposal to find no impairment for DS1 and DS3 loops in BDS
Competitive Counties and Study Areas is also based on our findings
about the availability of competitive fiber in the BDS Remand Order. In
that Order, we calculated that within BDS Competitive Counties, more
than 94% of locations with BDS demand were served by incumbent LEC wire
centers within a half mile of competitive fiber, and more than 97% of
locations with BDS demand were either themselves within a half mile of
competitive fiber or served by an incumbent LEC wire center within a
half mile of competitive fiber. We reasoned that the data used in
making those findings likely understated competition given that ``cable
companies and other competitors frequently bypass ILEC networks
entirely.'' Moreover, the data underlying our analysis was collected in
2013, and ``competitive fiber providers have continued to build new
fiber routes in part to compete with incumbent LECs' BDS offerings.''
We thus propose to infer that the small fraction of enterprise
locations not within a half mile of competitive fiber or served by an
incumbent LEC wire center within a half mile of competitive fiber,
i.e., less than 3% of all enterprise locations in price cap incumbent
LEC counties, would face the same non-impairment conditions for
competitive providers. We seek comment on this reasoning.
9. In the BDS Order, the Commission found that the most appropriate
geographic measure at which to determine the competitiveness of DS1 and
DS3 end-user channel terminations was the county level, and we propose
to use that same approach here. Do commenters agree? Is there any
reason to base our analysis on a more granular geographic unit, e.g.,
based on wire centers served by competitive fiber, or some other
geographic area, rather than on counties? For example, should we find
that UNE DS1 and DS3 Loops should remain available in portions of BDS
Competitive Counties served by incumbent LEC wire centers more than a
half mile from competitive fiber? Are there different considerations
for UNE DS1 and DS3 Loops compared to business data services that would
warrant some type of exemption?
10. Proposed Exemption for Residential Broadband in Rural Areas. We
propose to narrowly exempt the availability of UNE DS1 Loops from any
unbundling relief such that UNE DS1 Loops will remain available for
residential broadband service along with telecommunications service in
rural census blocks. Although UNE DS1 and DS3 Loops are used largely to
serve enterprise customers, there is evidence in the record that some
competitive LECs use UNE DS1 Loops to provision broadband to
residential customers for whom no other broadband service is available
and the distance is too great to provision such service using DS0s. The
findings regarding DS1s and DS3s for the enterprise market may not
translate cleanly to the rural, residential market. We seek comment on
this view.
11. We believe this exemption would have benefits in maintaining
access to mass market broadband in rural areas that outweigh any
disincentives to next-generation network deployments by either
incumbent or competitive LECs and seek comment on that view. We seek
comment on the administrability of this proposed exemption. We believe
that incumbent LECs should be able to readily accommodate this proposed
exemption to our proposed finding of no impairment for enterprise use
in BDS Competitive Counties and Study Areas. Do commenters agree?
12. If we do carve out an exemption related to residential use,
should that exemption be limited to UNE DS1 Loops? We understand that
DS3 loops are not generally used for residential consumers. Are there
ever instances where UNE DS3 Loops are used to provide residential
broadband services? If so, should a similar exemption be provided to
serve mass market residential customers in rural census blocks within
BDS Competitive Counties and Study Areas where UNE DS3 loops are no
longer available for enterprise use?
13. Alternatives. As an alternative to our proposal to find non-
impairment for DS1 and DS3 loops in BDS Competitive Counties and Study
Areas, should we instead provide relief from unbundling requirements
for DS1 and DS3 loops based on a forbearance analysis? Specifically,
should we forbear from the unbundling requirements for DS1 and DS3
loops in the BDS Competitive Counties and Study Areas? We seek comment
on this alternative proposal and whether the three prongs of the
forbearance test would be satisfied. We believe the forbearance
criteria are met for the same service areas where we propose to find
non-impairment based on the same competitive findings and public
interest determinations made in the BDS Order and the RoR BDS Order. Do
commenters agree?
14. Or should we instead find that the market for UNE DS1 and DS3
Loops in the BDS Competitive Counties and Study Areas is ``sufficiently
competitive without the use of unbundling?'' The Commission in the
Triennial Review Remand Order made such a finding as to the long
distance and mobile wireless markets and thus declined to require that
UNEs be made available for the exclusive provision of these services.
Do the competitive findings in the BDS
[[Page 475]]
Order and the RoR BDS Order with respect to BDS services rise to the
same level as the Commission's findings in the Triennial Review Remand
Order as to the long distance and mobile wireless service markets? If
so, are they sufficient to conclude that incumbent LECs should no
longer be required to make DS1 and DS3 loops available on an unbundled
basis in BDS Competitive Counties and Study Areas?
b. UNE DS0 Loops
15. The Commission's rules require incumbent LECs to make UNE DS0
Loops available nationwide. These broadband-capable loops are used
primarily to serve mass market residential customers, in contrast to
UNE DS1 and DS3 Loops. UNE DS0 Loops are typically used to provide both
voice and broadband internet access service using various xDSL
technologies. We also note that some competitive LECs use DS0s to
provide Ethernet-over-copper and other higher-speed DSL service using
bonded DS0s to certain business customers. Where UNE DS0 Loops remain
available, competitive LECs may continue to use these loops for that
purpose.
16. We propose to find that competitive LECs are no longer impaired
without access to UNE DS0 Loops in urban census blocks. We base our
proposal on the relatively low and falling barriers to entry that
competitive providers face in providing broadband in urban areas,
particularly using alternative technologies. We may rely on the
availability of broadband in any forbearance or impairment analysis,
consistent with Congress's mandate in section 706 that we ``encourage
the deployment on a reasonable and timely basis of advanced
telecommunications capability to all Americans.'' While our rules
require competitive LECs to use UNEs to provision telecommunications
services, once they do so, they may use those same UNEs to provision
information services, i.e., broadband. By the same token, because
facilities-based broadband can be used to provide the same residential
services that can be provided with UNEs today, we rely on entry into,
and current competition within, the broadband marketplace in
considering whether impairment persists as to UNE DS0 Loops. Because
facilities-based broadband service provides residential consumers
similar (and typically more advanced) voice and internet access
capabilities to those that can be provided with UNE DS0 Loops, we rely
on evidence of entry into, and current competition within, the
broadband marketplace in considering whether impairment persists as to
UNE DS0 Loops in urban census blocks. Do commenters agree with this
approach? We recognize that rural areas present different deployment
considerations than urban areas and thus do not propose to include
rural census blocks in our proposed non-impairment finding.
17. Our proposal to find that competitive LECs are no longer
impaired in urban census blocks without access to UNE DS0 Loops relies
on the presence of nearly ubiquitous cable deployment in urban areas.
Cable providers make available facilities-based 25/3 Mbps internet
access service, which meets the Commission's definition of advanced
telecommunications capability, without the use of UNEs to 97% of
households in urban census blocks. Furthermore, 74% of households in
urban census blocks have at least two 25/3 Mbps providers, and 87% of
households in urban census blocks have at least two 10/1 Mbps
providers, generally the cable provider and the incumbent LEC, all
without the use of UNEs. These figures exclude satellite providers and
competitive LECs providing copper-based services. We assume any non-
incumbent LEC provider offering copper-based services uses UNEs. We
infer from this data that as cable continues to vigorously compete with
other wireline ISPs, cable providers will build out to the remaining
urban census blocks in the near future and similarly, competing
facilities-based wireline providers will upgrade their networks to
better compete with cable. We seek comment on this analysis.
18. Our proposal also relies on recent evidence demonstrating that
increasing numbers of competitors using wireless technologies are
entering the residential market for broadband services in urban areas
without the use of UNEs. For example, Verizon has announced plans to
deploy 5G-based fixed wireless service in 30 geographic markets, mostly
outside its incumbent LEC territory, Starry is deploying fixed wireless
service in major urban centers, and other WISPs are specifically
targeting urban customers as well. AT&T's CEO recently told investors
that over the next three to five years, ``unequivocally 5G will serve
as a . . . fixed broadband replacement product.'' These developments
are consistent with the observations in the 2018 Communications
Marketplace Report, where the Commission noted that advancements in
fixed wireless service technology will produce speeds that will
ultimately rival what can be offered by fiber. Indeed, even certain
parties opposing USTelecom's recent request for forbearance noted that
5G ``is ideally suited for urban areas with high building density.''
Relatedly, the Commission has long recognized that the costs for new
deployment are significantly lower in urban areas. Indeed, one of the
key assumptions of the Commission's Connect America Fund model, which
determines how scarce universal service funds are allocated for high-
cost areas, is that broadband deployment costs less in urban areas than
in rural areas. The Commission has also acted to lower barriers to
entry and thereby spur further intermodal competition by opening
additional spectrum for licensed and unlicensed uses, streamlining the
process of small cell siting, and modernizing pole attachment rules to
reduce the cost and time it takes to string fiber on poles. We propose
to find on the basis of these factors taken together that entry
barriers have been reduced and, in many areas, eliminated so
significantly that a reasonably efficient competitor is no longer
impaired without access to UNE DS0 Loops in urban census blocks and
that unbundling of DS0 loops in such areas is no longer warranted. We
seek comment on this proposal. Do commenters agree that the increasing
wireless broadband deployment and entry in urban areas constitute
evidence that a reasonably efficient competitor using reasonably
efficient technologies is not impaired without access to these UNEs?
19. In these urban areas where advanced services are available to
consumers from providers that do not rely on UNE DS0 Loops, we believe
a continued DS0 unbundling requirement will artificially and
unnecessarily slow the consumer transition away from services provided
over legacy copper loops to more advanced networks and services. We
therefore believe that eliminating DS0 unbundling in urban areas would
better advance the 1996 Act's goal of broadband deployment.
Furthermore, new entrants using fixed wireless and other technologies
may specifically target the relatively few urban areas with only one
25/3 Mbps provider as offering the most economically-feasible case for
entry, because of the density and relative lack of competition in these
areas, particularly if UNE DS0 Loops are no longer available. We seek
comment on these views.
20. We believe basing a finding of non-impairment at the urban
census block level would be administratively workable to implement as
both incumbent and competitive LECs are familiar with census block
metrics as a
[[Page 476]]
result of the Commission's Form 477 broadband deployment reporting
obligations, and urban versus rural census blocks are identifiable
based on the Census Bureau's publicly available designations. Do
commenters agree? If basing a non-impairment finding on census blocks
would raise administrative difficulties, how might we ease or address
them? Urban census blocks may be located either in urbanized areas or
urban clusters.
21. In proposing relief for UNE DS0 Loops, we do not propose to
distinguish between residential and enterprise services. We note that
within price cap counties that have been deemed competitive by the BDS
Order for business data services, including DS1 services, 95% of census
blocks with business demand had at least one competitive provider.
Based on the present record, we do not foresee a need that would
justify different treatment for UNE DS0 Loops based on their use. We
seek comment on this view.
22. Competitive LECs stated that they use broadband-capable UNE DS0
Loops to create new services not provided by incumbent LECs by bonding
multiple loops and/or placing their own electronics on them to provide
high-speed broadband and voice service to their customers. Competitive
LECs also commented that they use these loops as bridges to deployment
of next-generation networks, and asserted that no meaningful
alternatives for consumers exist for these loops. Incumbent LECs
asserted that they are developing or have already developed broadband
alternatives that may not have existed when the competitive LEC first
entered those areas. We seek comment on these competing assertions. Are
there urban census blocks where incumbent LECs currently only provide
legacy, or no, DSL service and where a competitive LEC supplies high-
speed broadband over UNE DS0 Loops? If so, where? And would granting
relief promote or deter additional investment in high-speed facilities
in such areas?
23. Some competitive LECs have contended that customer preference
for TDM-based and line-powered services supports maintaining unbundling
requirements, while incumbent LECs have argued that such preferences
are irrelevant to an analysis of whether to forbear from the UNE
regime. We concluded for purposes of our forbearance analysis in the
UNE Analog Loop and Avoided-Cost Resale Forbearance Order that ``we [ ]
are not persuaded that the Commission must `protect' every preference
some customers might have, especially in the face of alternative
options for obtaining voice services.'' Do different considerations
apply here? Should an impairment analysis consider the extent to which
our unbundling requirements may artificially protect users of legacy
technologies from market forces that would otherwise provide price
signals encouraging the transition to next-generation technologies?
24. Does evidence that incumbent LECs offered UNE-platform (UNE-P)
replacement products when the UNE-P obligation was eliminated support
incumbent LEC suggestions that they intend to offer UNE DS0 Loop
replacement products on a commercially negotiated basis? How, if at
all, should such a possibility factor into an impairment or forbearance
analysis?
25. Our current copper retirement rules permit incumbent LECs to
obtain relief from the unbundling requirements for DS0 loops by
deploying fiber or other next-generation networks and then retiring
their copper facilities pursuant to our network change disclosure
rules. Incumbent LECs may retire their copper facilities without the
need to seek our authorization. We seek comment on whether the
availability of this option has any bearing on the need for unbundling
relief. What impact, if any, does an incumbent LEC's ability to achieve
relief equivalent to forbearance have on competitive LEC incentives to
deploy their own facilities as expeditiously as possible? If an
incumbent LEC continues to maintain its copper facilities even after it
has deployed last-mile fiber, should those copper facilities remain
available to competitors via unbundling for the types of services
customers nevertheless continue to demand?
26. In forbearing from the UNE Analog Loop obligation, we noted
``the disincentive that continued unbundling mandates create for
competitors to invest in their own facilities-based networks and
transition their customers to next-generation services.'' Is there any
reason to believe that different considerations apply with respect to
UNE DS0 Loops? Does the economic cost of maintaining a DS0 unbundling
requirement outweigh any benefit of allowing customers to continue
relying on legacy services?
27. Alternatives. As an alternative to finding no impairment for
DS0 loops in urban census blocks, should we forbear from DS0 loop
unbundling requirements in urban census blocks with a minimum of 25/3
Mbps fixed service provided by at least two facilities-based,
terrestrial providers without the use of UNEs? We seek comment on this
alternative and the three prongs of the forbearance test. Is the
Commission's conclusion in the Restoring Internet Freedom Order that
the presence of two wireline internet service providers ``can be
expected to produce more efficient outcomes than any regulated
alternative'' relevant to our consideration in this context? If we were
to use this alternative test, would a census block-by-census block
forbearance decision be administrable from the standpoint of the
Commission and affected LECs? Or should we aggregate up our analysis to
a larger unit of measurement, such as counties?
28. For purposes of such a test, we would expect to include fixed
wireless providers, but note that fixed wireless penetration rates are
low in our most recent publicly available Form 477 data. Nonetheless,
recent developments in fixed wireless services have lowered the
barriers to entry by fixed wireless providers, and provided them with
the means of bringing effective competition to urban areas. We seek
comment on this analysis. Does the presence of fixed wireless providers
in a census block mean that barriers to entry are low (suggesting no
impairment of entry) or that competition is thriving (suggesting
forbearance is appropriate)?
29. In the UNE Analog Loop and Avoided-Cost Resale Forbearance
Order, we concluded that ``price cap LEC UNE Analog Loop obligations
are unnecessary to ensure that the charges for voice services are just
and reasonable.'' Do different considerations apply for UNE DS0 Loops
given their use for provisioning broadband service in addition to voice
service?
c. UNE Narrowband Voice-Grade Loops
30. Under our rules, incumbent LECs must provide three specific
types of unbundled narrowband voice-grade loops: UNE Analog Loops, 64
kbps voice-grade channels over last-mile fiber loops when an incumbent
LEC retires copper, and the TDM capabilities of hybrid loops. The
Commission forbore from new 64 kbps unbundling obligations in 2015 but
grandfathered existing users. Voice-grade loops are used almost
exclusively for the provision of voice-grade service, which we have
found customers are migrating away from in favor of IP- and wireless-
based voice services provided by multiple intermodal providers. These
include facilities-based fixed voice providers such as cable companies
providing VoIP, mobile wireless facilities-based providers and
resellers, and VoIP providers offering over-the-top services via
broadband.
31. We propose to eliminate these unbundling obligations nationwide
as competitors do not face significant
[[Page 477]]
barriers to entering the voice-service marketplace. Indeed, incumbent
LECs provided only about 12% of voice subscriptions in 2017. As we have
previously found, rather than a foothold for new entrants into the
marketplace, these legacy regulatory obligations have become a vice,
``trapping incumbent LECs into preserving outdated technologies and
services at the cost of a slower transition to next-generation networks
and services that benefit American consumers and businesses.'' We seek
comment on our specific proposals for each of the three types of
narrowband voice-grade copper loops described below.
32. In the alternative, should we instead find simply that the
marketplace for voice-grade loops is ``sufficiently competitive without
the use of unbundling'' as the Commission previously did for long-
distance and mobile services? The Commission declined to require that
UNEs be made available for the exclusive provision of long distance and
mobile wireless services based upon a finding that the marketplace for
those services was competitive without reliance on UNEs. Does the
degree of intermodal competition in today's voice marketplace support
finding that incumbent LECs should no longer be required to make UNEs
available for the exclusive provision of voice services?
33. UNE Analog Loops. We propose to extend the forbearance for UNE
Analog Loops to all remaining service areas where this unbundling
obligation still applies. In the recent USTelecom forbearance
proceeding, we granted relief from unbundling requirements for UNE
Analog Loops to price cap incumbent LECs in their service areas. We
propose extending this forbearance relief nationwide for the same
reasons we stated in the UNE Analog Loop and Avoided-Cost Resale
Forbearance Order, including the extensive intermodal competition
present in the voice marketplace, the harmful marketplace distortions
generated by outdated regulations, and the reduced incentives for both
incumbent and competitive LECs to invest in their own facilities and to
transition to next-generation networks. We seek comment on this
proposal.
34. Do the considerations in non-price cap areas differ from those
in price cap areas with respect to these UNEs that can only be used to
provision voice-grade service? Are any competitors purchasing these
UNEs to provide voice services in non-price cap areas where other voice
alternatives do not exist? Commenters should provide specific detail
whether: (1) Continued UNE Analog Loop requirements in non-price cap
areas remain necessary to ensure that the charges, practices,
classifications, or regulations are just and reasonable and are not
unjustly or unreasonably discriminatory; (2) continued UNE Analog Loop
requirements are necessary for the protection of consumers; and (3)
forbearance from UNE Analog Loop requirements is consistent with the
public interest.
35. Alternatively, should we find that competitors nationwide are
no longer impaired without access to UNE Analog Loops in the face of
the breadth of voice alternatives we described in the UNE Analog Loop
and Avoided-Cost Resale Forbearance Order? Our conclusions in that
Order were based on Form 477 data, which is collected on a nationwide
basis. Nevertheless, should we limit a non-impairment finding only to
price cap areas where we have previously forborne? If so, what is the
basis for such a limitation? We also seek comment on whether
competitors in non-price cap areas remain impaired without access to
these voice-grade only UNEs. Are there special or different
circumstances we should consider for evaluating impairment in non-price
cap incumbent LEC areas?
36. Grandfathered 64 kbps Fiber Loops. We propose to eliminate the
requirement that competitive LECs continue to receive unbundled access
to the previously grandfathered 64 kbps voice channels over fiber
loops. We propose to reach this outcome whether evaluated under the
impairment standard of section 251, the forbearance criteria of section
10, the general standards governing Commission action under provisions
such as sections 4, 201(b), and 303(r), or any combination thereof. We
seek comment on this proposal. The Commission forbore from this
requirement on a nationwide basis for all incumbent LECs in 2015,
finding this unbundling burden on fiber deployment to be
disproportionate to the ``very limited'' and decreasingly relevant
purpose the requirement serves--to protect narrowband voice competition
as networks transition from copper to fiber. At the same time, the
Commission grandfathered the obligation as to existing UNE 64 kbps
voice channels over fiber loops.
37. We propose to eliminate this grandfathered UNE 64 kbps voice
channel obligation for two reasons. First, we believe it potentially
delays the TDM-to-IP transition by locking incumbent LECs subject to
the grandfathering provision into continuing to provide TDM service
where they have upgraded their networks to fiber and advanced services
are available. Second, we believe the continued cost to incumbent LECs
of maintaining the legacy equipment and systems necessary to continue
to support this obligation solely to protect narrowband legacy voice is
no longer necessary in light of our prior findings about the state of
the voice services marketplace. We seek comment on these views.
Specifically, we seek comment on the effect the grandfathering
requirement continues to have on incumbent and competitive LEC
incentives to deploy next-generation networks and to transition
customers to next-generation services that are available over such
networks. In light of intermodal voice alternatives, would a reasonably
efficient competitor deploy a narrowband network to provide voice
service today?
38. To the extent competitors still rely on the grandfathered 64
kbps voice channel over fiber loops, we seek comment on whether such
competitors remain impaired without access to this grandfathered
requirement, and whether the three-part forbearance standard would be
met for the same reasons they are met with respect to our UNE Analog
Loop forbearance in price cap incumbent LEC service areas. We believe
that the respective costs already incurred by both incumbent and
competitive LECs with respect to this grandfathered requirement is
outweighed by the costs of continuing to obligate incumbent LECs to
maintain and support this legacy equipment and service, and the
societal costs that retaining this grandfathered unbundling obligation
has on the transition to IP-based networks and services. We seek
comment on this belief, including what role it should play in our
analysis. What benefits would be gained by eliminating this obligation?
Would competitive LECs or consumers be harmed by eliminating their
access to the grandfathered 64 kbps voice channel? Do any competitive
LECs still use the grandfathered 64 kbps voice channel?
39. TDM Capabilities of Hybrid Loops. Hybrid loops are local loops
``composed of both fiber optic cable, usually in the feeder plant, and
copper wire or cable, usually in the distribution plant.'' In the
Triennial Review Order, the Commission declined to order unbundling of
the packet-based capabilities of hybrid loops. Our rules currently
require that incumbent LECs unbundle either (1) a TDM voice-grade
capable 64 kbps channel or (2) a spare copper loop if the requesting
carrier seeks to provide narrowband services, and only the TDM
features, functions, and capabilities of hybrid loops if the
[[Page 478]]
requesting carrier seeks to provision broadband services.
40. For the same reasons we forbore from the UNE Analog Loop
requirement in price cap incumbent LEC areas, we do not believe that
UNE Hybrid Loops continue to be necessary for the provision of
narrowband voice service. We thus propose granting nationwide
forbearance from UNE Hybrid Loop requirements. We seek comment on this
proposal. Are there circumstances specific to these hybrid loops that
differ from UNE Analog Loops such that these unbundling requirements
remain necessary for provisioning voice service? Commenters should
provide specific detail why: (1) Continued UNE Hybrid Loop requirements
are necessary to ensure that the charges, practices, classifications,
or regulations are just and reasonable and are not unjustly or
unreasonably discriminatory; (2) continued UNE Hybrid Loop requirements
are necessary for the protection of consumers; and (3) forbearance from
UNE Hybrid Loop requirements is consistent with the public interest. Do
any competitive LECs today use the unbundled TDM capabilities of hybrid
loops to provision any broadband services?
41. We note that no commenter has claimed to use the TDM
capabilities of hybrid loops to provide broadband service. Is that
correct? To the extent that any hybrid loops are currently being used
to provide TDM-based broadband services, would nationwide relief for
hybrid loop unbundling requirements better promote the transition to
next-generation networks, including the replacement of the remaining
copper in hybrid loops with fiber? Do incumbent LECs have hybrid loops
in rural census blocks such that nationwide elimination of these UNEs
would eliminate consumer access to broadband in those areas? If so,
should we consider providing more limited geographic relief, such as
only in urban census blocks, consistent with our proposals for UNE DS0
Loops above?
42. Alternatively, we seek comment on whether we should find that
competitors are no longer impaired without unbundled access to the TDM-
capabilities, features, and functionalities of hybrid loops. In the
2003 Triennial Review Order, the Commission concluded that competitors
were impaired on a nationwide basis without access to these UNEs for
serving mass market customers. The Commission went on to note, however,
that this impairment would diminish over time as more and more fiber is
deployed. Has sufficient fiber been deployed in the sixteen years since
the Triennial Review Order such that competitors are no longer impaired
without access to UNE Hybrid Loops for the purpose of serving mass
market residential customers? In today's marketplace, would a
reasonably efficient competitor using reasonably efficient technology
seek to provide voice service using the TDM capabilities of hybrid
loops? Would a reasonably efficient competitor using reasonably
efficient technology seek to provide broadband service using the TDM
capabilities of hybrid loops? Recognizing that hybrid loops are an
important step in the deployment of fiber to the home, does any
continued unbundling obligation with respect to these loops, either for
broadband or narrowband services, threaten to frustrate deployment of
and transition to next-generation networks and services? Commenters
should specify whether any impairment or non-impairment faced by
competitors occurs on a nationwide basis or only in certain geographic
areas. Commenters should also provide data to support their
contentions.
d. Subloops
43. Subloops are portions of a loop or ``smaller included
segment[s] of an incumbent LEC's local loop plant.'' Subloops are
generally ordered with the intention of taking ``the competitor all the
way to the customer.'' Our rules impose UNE obligations for two types
of subloops--copper and multiunit premises subloops. Subloop unbundling
obligations only apply to incumbent LECs' distribution loop plant. The
Copper UNE Subloop is a portion of a copper loop, or hybrid loop,
comprised entirely of copper wire or copper cable that acts as a
transmission facility between any point of technically feasible access
in an incumbent LEC's outside plant and the end-user customer premises.
The Copper UNE Subloop includes inside wire owned or controlled by the
incumbent LEC and the features, functions, and capabilities of the
copper loop. Incumbent LECs must provide competitive LECs unbundled
access to Copper UNE Subloops for the provision of narrowband and
broadband services.
44. The Commission's rules separately address Multiunit Premises
UNE Subloops due to previously-found specific ``impairments associated
with facilities-based entry in multiunit buildings or campus
environments.'' Incumbent LECs must offer unbundled access to these
subloops necessary to access wiring at or near a multiunit customer
premises, i.e., all incumbent LEC loop plant between the minimum point
of entry at a multiunit premises and the point of demarcation. Unlike
Copper UNE Subloops, the Multiunit Premises UNE Subloop includes the
entirety of the loop plant regardless of the capacity level or type of
loop the requesting carrier will provision to its customer, that is,
including fiber or hybrid loops. Some competitive LECs state that they
use Multiunit Premises UNE Subloops to ``access loops otherwise
unavailable because of fiber feeder.'' The Multiunit Premises UNE
Subloop also includes any inside wiring owned and controlled by the
incumbent LEC.
45. We propose to forbear or find no impairment with respect to UNE
Subloops in the particular instances or geographic areas where we
propose to eliminate the underlying loop to the customer's premises,
either by forbearance or finding no impairment. We seek comment on this
proposal. We base our proposal on the same factors and reasoning upon
which we propose relief applicable to each of the underlying Copper UNE
Loops discussed above. We do not believe the public interest would be
served by maintaining Copper UNE Subloops in areas where the end-to-end
UNE Loop obligations have been eliminated. We seek comment on this
view.
46. We believe competitive LECs' ability to serve their current
customer base with their own facilities-based network will be
unaffected if we eliminate Copper UNE Subloop obligations, noting that
incumbent LECs indicate that they sell a negligible number of Copper
UNE Subloops. Do commenters agree? If not, commenters should specify
which types of services, customers, and geographic areas they believe
our Copper UNE Subloop unbundling proposal would impact. If these
unbundled subloops are eliminated, will incumbent LECs still provide
competitive LECs access to subloops on a commercial basis to the extent
such access is sought? Are there alternatives for competitive LECs to
reach their end-user customers if we eliminate Copper UNE Subloop
obligations? We also believe that eliminating Copper UNE Subloops in
the same instances where we propose to eliminate the underlying UNE
Loop obligation will be administratively feasible. Do commenters agree?
If not, how might we ease any administrative difficulties?
47. We seek more specific comment on the Multiunit Premises UNE
Subloop. We note that these particular unbundling obligations largely
came about to address issues related to facilities-based competitors
accessing the customer's location where access to
[[Page 479]]
the premises was controlled or managed by someone other than the
customer. Should we treat the Multiunit Premises UNE Subloop
differently from the Copper UNE Subloop? Competitive LECs assert that
special barriers still exist to accessing multiunit premises. Are they
correct, and if so, do such barriers justify retaining unbundled access
to subloops for multiunit premises wiring? Are these barriers
independent of accessing the Multiunit Premises UNE Subloop, such that
retaining this unbundled element would still not enable competitive
LECs to access customers in such premises? Are there alternatives to
Multiunit Premises UNE Subloops to access multiunit premises? Do the
Commission's rules prohibiting LECs from entering into exclusive access
contracts with the owners of residential and commercial multi-tenant
environments make unbundled access to these subloops unnecessary? We
seek comment on any issues we should consider in evaluating the extent
to which Multiunit Premises UNE Subloops should remain available on an
unbundled basis to best further the objectives of the Act.
2. UNE Dark Fiber Transport
48. Dark fiber transport is deployed fiber optic cable between
incumbent LEC wire centers that has not been ``lit'' through the
addition of optronic equipment that would make it capable of carrying
telecommunications. This dark fiber facility is typically referred to
as ``interoffice dark fiber.'' The Commission's transport unbundling
rules define when an incumbent LEC is required to unbundle its
interoffice dark fiber and make it available to a requesting carrier.
Where so obligated, the incumbent LEC must lease its unlit fiber,
subject to availability, enabling the competitive LEC to use such dark
fiber as if it were part of its own fiber network. Thus, after
deploying its own electronics to light the dark fiber, the competitive
LEC is able to provision service to end users served from the wire
center to which the unbundled dark fiber transport terminates.
49. In the Triennial Review Remand Order, the Commission applied
the impairment standard to limit the extent to which incumbent LECs are
required to provide UNE Dark Fiber Transport. The Commission concluded
that competitive LECs are not impaired without access to UNE Dark Fiber
Transport when both wire centers are classified as either Tier 1 or
Tier 2, reasoning that on such routes, ``a reasonably efficient
competitor has, or could, duplicate the facilities of the incumbent
LEC.'' For purposes of UNE Dark Fiber Transport, a Tier 1 wire center
has at least four fiber-based collocators or at least 38,000 business
lines, or both. A Tier 2 wire center is one that does not qualify as
Tier 1 but has at least three fiber-based collocators or at least
24,000 business lines, or both. All other wire centers are Tier 3. As a
result, all UNE Dark Fiber Transport that is leased today involves at
least one Tier 3 wire center end point. Tier 3 wire centers are all
wire centers that are not classified as Tier 1 or Tier 2 wire centers.
The Commission has described Tier 3 wire centers as those that ``show a
generally low likelihood of supporting actual or potential competitive
transport deployment.'' We refer to these Tier 3 wire centers as ``UNE
triggering'' wire centers.
50. In the recent UNE Transport Forbearance Order, we unanimously
forbore from UNE DS1/DS3 Transport obligations for price cap incumbent
LECs at wire centers within a half mile of competitive fiber. We
concluded that the presence of nearby competitive fiber creates a
sufficiently dynamic marketplace as to protect competition and
consumers as well as further the public interest, and forbearance was
therefore warranted.
51. Consistent with the analysis in the UNE Transport Forbearance
Order, we propose finding that competitive LECs are not impaired
without access to unbundled dark fiber transport to wire centers that
are within a half mile of alternative fiber. The wire centers that we
propose would no longer be subject to UNE Dark Fiber Transport
obligations are those for which the Commission granted forbearance from
UNE DS1/DS3 Transport obligations in the UNE Transport Forbearance
Order. We seek comment on this proposal. Our proposal is based on
concluding that a reasonably efficient competitor within a half mile of
alternative fiber would not be impaired without access to UNE Dark
Fiber Transport because it should be able to obtain such transport, if
available, on a commercial basis at competitive rates, or by building
its own transport network. In the BDS Order, the Commission assumed
that the presence of a second wireline provider, in addition to the
incumbent LEC, is sufficient to discipline prices for transport in
areas with high fixed costs. We affirmed this finding in the BDS Remand
Order. We infer that this same assumption would apply with respect to
dark fiber assuming both the incumbent LEC and the second provider
having the nearby competitive fiber network each have dark fiber
available for lease. Is this assumption reasonable? Our proposal is
also informed by the Commission's observation in the Triennial Review
Remand Order that ``competing carriers that use UNE Dark Fiber
transport actively seek out wholesale alternatives to the incumbent
LEC's fiber facilities.'' Does this observation still hold?
52. Our forbearance analysis in the UNE Transport Forbearance Order
relied on the proximity of a price cap incumbent LEC wire center to
competitive lit fiber. Commenters in that proceeding claimed that lit
fiber is no commercial substitute for dark fiber. However, we do not
propose to consider the substitutability of lit and dark fiber to be
relevant in an impairment analysis. While the Commission has previously
differentiated lit from dark fiber, that has no bearing on the fact
that the existence of a nearby fiber network suggests the ability of a
reasonably efficient competitor to self-provision its own fiber network
in competition with the incumbent LEC, regardless of whether that
network owner offers lit fiber services or dark fiber facilities. We
seek comment on whether our conclusion that the existence of a nearby
competitive fiber network within a half mile necessarily implies an
ability of at least one reasonably efficient competitor having the
ability to deploy its own fiber such that we can reasonably infer no
impairment for other competitors.
53. We also seek comment on whether we should supplement the list
of incumbent LEC wire centers for which we propose to find non-
impairment for UNE Dark Fiber Transport by adding any Tier 3 wire
centers that are within a half mile--or potentially some longer
distance--of Tier 1 or Tier 2 wire centers. Could we infer no
impairment as to these wire centers, due to the proximity of either
fiber-based competitors or business line density at the nearby Tier 1
and Tier 2 wire centers? We note that in the BDS Order, the Commission
observed that competitive providers sometimes build ``more circuitous
route[s] in anticipation of additional demand'' than the existing
incumbent LEC's route between wire centers. Moreover, we are cognizant
of the USTA II court's discussion of how we must consider ``facilities
deployment along similar routes when assessing impairment.'' Should we
consider this as a separate stand-alone proposal for unbundling relief
from UNE Dark Fiber Transport obligations? We observe that some wire
centers that are classified as Tier 3 facilities are apparently located
in urban areas, which would suggest similar business line density and
the likely presence of nearby Tier 1 or Tier 2 wire centers. If we were
to undertake
[[Page 480]]
a one-time analysis to supplement the list based on existing Tier 3
wire centers, we do not believe this would be administratively
difficult. Do commenters agree? Could we rely on the wire center
locations as set forth in the Local Exchange Routing Guide to determine
the necessary geocoordinates to conduct such an analysis? Are there
other publicly available sources that would provide better wire center
location information? We ask commenters to generally comment on any
administrative burdens associated with wire centers for the purposes of
this supplemental proposal.
54. Are there other alternative criteria upon which we should base
an impairment analysis? For example, should we find that competitive
LECs are not impaired without access to UNE Dark Fiber Transport at
Tier 3 wire centers where some threshold percentage of end users served
by the wire center has access to at least two facilities-based
providers at 25/3 Mbps without the use of UNEs? If so, should we
exclude satellite and mobile service providers from counting as a
facilities-based provider for this test? We would consider fixed
wireless to the extent we do in our other residential competitive
tests, as discussed above. Should we conclude that a reasonably
efficient competitor that serves such end users could secure its own
transport services without the benefit of UNE Dark Fiber Transport
because at least one other non-incumbent LEC facilities-based provider
has been able to serve end users without access to UNE Dark Fiber
Transport? Are there advantages and disadvantages to using this test?
Is it reasonable to infer that a confirmed 25/3 Mbps end user in a
service area indicates the existence of transport alternatives to
support a finding of non-impairment? What would be the appropriate
number of, or percentage of, subscribers served by an individual wire
center for us to make this determination? Should we aggregate
subscribers at multiple wire centers in a geographic area? Is it
necessary for the Commission to identify all Tier 3 wire centers ex
ante, before concluding whether a finding of non-impairment is
appropriate, and, if so, through what public sources would the
Commission be able to create a comprehensive list of such wire centers?
55. Or, should we extend forbearance to UNE Dark Fiber Transport
obligations for the same wire centers subject to our UNE DS1/DS3
Transport forbearance? What factors would differ in considering
forbearance for unbundled dark fiber transport from forbearance for lit
unbundled transport? In its 2018 forbearance petition, USTelecom
initially sought nationwide forbearance relief from all transport
unbundling obligations, including UNE Dark Fiber Transport. Before
USTelecom withdrew its request for forbearance from UNE Dark Fiber
Transport obligations, commenters provided sharply contrasting views as
to whether the forbearance standard could be met for granting such
relief.
56. Incumbent LECs generally disputed the relevance of UNE Dark
Fiber Transport in today's marketplace, pointing to how few such UNEs
are leased from the largest incumbent providers. Verizon, for example,
claimed that it both buys a de minimis amount of UNE Dark Fiber
Transport and sells very small volumes. USTelecom described competitive
LECs' use of UNE Dark Fiber Transport as playing a ``negligible role in
the marketplace.'' Moreover, USTelecom observed that the four largest
incumbent LECs leased only 20,000 to 60,000 combined UNE Dark Fiber
Transport miles to competitive LECs, compared to nearly 12 million dark
fiber transport miles that were made available via commercial leasing.
Incumbent LECs also dispute that UNE Dark Fiber Transport is primarily
used by competitive LECs to reach end users in rural areas. For those
competitive LECs that rely on UNE Dark Fiber Transport to provision
service to a substantial number of end users, CenturyLink reasoned that
such demand would justify deployment of its own facilities.
57. Competitive LECs, on the other hand, argued that access to UNE
Dark Fiber Transport was essential to the provision of new service,
often in rural markets. For example, one competitive LEC described its
network buildout strategy, which first requires collocation in the
incumbent LEC's central office followed by connection to its existing
facilities-based network using UNE Dark Fiber Transport. This
competitive LEC emphasized that its use of UNE Dark Fiber Transport
required investment in collocation and optronics to operationalize the
leased UNE Dark Fiber Transport. Other commenters contended that
competitive LECs use UNE Dark Fiber Transport as ``the critical middle-
mile fiber to connect to their own last-mile facilities.'' We seek
comment generally on all of these assertions and the potential
application of section 10 forbearance criteria to UNE Dark Fiber
Transport.
3. Other UNEs
a. Network Interface Devices
58. The network interface device, or NID, which is always located
at the customer's premises, is defined as any means of interconnecting
the incumbent LEC's distribution plant to wiring at a customer premises
location. Apart from its obligation to provide the NID functionality as
part of an unbundled loop or subloop, an incumbent LEC must also offer
nondiscriminatory access to the NID on an unbundled, stand-alone basis
to requesting carriers for the purpose of connecting the competitor's
own loop facilities. Forbearance from this obligation would necessarily
coincide with and follow our forbearance proposals related to loops and
subloops and previous forbearance grants related to loops. An incumbent
LEC must permit a requesting carrier to connect its own loop facilities
to on-premises wiring through the incumbent LEC's NID. The NID is a
terminal endpoint for loops. The need for unbundled access to an
incumbent LEC's NID arose to address scenarios, typically in multiunit
locations, where access to the inside wire on the premises was
controlled by a premises owner that did not want additional NIDs
installed on their premises, or a customer had no need for a duplicate
NID.
59. Based on the record developed in the USTelecom forbearance
proceeding, we propose to forbear from the UNE NID obligation because
it appears that stand-alone NIDs are not necessary for competitive LECs
to access potential customers. Competitive and incumbent LECs have
described substantially changed circumstances in the last two-plus
decades such that this network element may no longer serve any
meaningful purpose. Competitive carriers are on record stating that
``[a]s a practical matter, [they] do not purchase network interface
device elements separate from unbundled loops.'' AT&T is also on record
stating it sells no UNE NIDs. We seek comment on our view that the lack
of stand-alone UNE NIDs indicates that the obligation is not necessary
to ensure just and reasonable rates and to protect consumers, thus
justifying forbearance.
60. How often do competitive carriers use this UNE obligation to
have access to stand-alone NIDs? How many stand-alone NIDs are
currently purchased from incumbent LECs? Are there still cases where
customer premises wire is not part of the incumbent LEC's network,
i.e., not an inside wire subloop, and the NID is the sole means of
accessing this customer premise's
[[Page 481]]
wire? If we eliminate UNE loop and subloop obligations, would
competitive providers need to acquire access to NIDs on a stand-alone
basis, and if so, are there competitive alternatives to this network
element? In the absence of an unbundling obligation, would incumbent
LECs still provide access to NIDs? As an alternative to forbearing from
this requirement, should we instead find that competitive LECs are not
impaired without access to NIDs? If so, on what basis could we make a
finding of no impairment?
b. Operations Support Systems
61. Incumbent LECs must offer nondiscriminatory access to their
operations support systems, or OSS, for qualifying services on an
unbundled basis. OSS consists of pre-ordering, ordering, provisioning,
maintenance and repair, and billing functions supported by an incumbent
LEC's databases and information. The Commission previously found that
the UNE OSS ``requirement includes an ongoing obligation on the
incumbent LECs to make modifications to existing OSS as necessary to
offer competitive carriers nondiscriminatory access and to ensure that
the incumbent LEC complies with all of its network element, resale and
interconnection obligations in a nondiscriminatory manner.'' OSS is
used for the provision of other UNEs, and it is also a separate stand-
alone UNE that is used for interconnection and other purposes,
including number porting. The Commission required incumbent LECs to
provide OSS on an unbundled basis in the Triennial Review Order because
it found that ``these functions are essential for carriers to serve
mass market and enterprise customers'' and competitive LECs providing
these services are ``impaired on a national basis without access to
OSS.''
62. We propose to forbear from the standalone OSS unbundling
obligation--i.e., when used for purposes other than managing other
UNEs--because we believe its very limited use in today's marketplace is
evidence that this standalone UNE is not necessary to ensure either
just and reasonable rates or consumer protection and forbearance would
be consistent with the public interest. We seek comment on this
proposal. CenturyLink asserts that ``OSS are naturally coupled to the
availability of the UNEs they support.'' Does access to this UNE remain
necessary to facilitate deployment of competitive carrier networks? How
does this UNE obligation differ from other UNE obligations, and should
it be treated differently than UNE loop and transport obligations,
which may require more intrusive sharing of incumbent LEC networks?
63. If we were to eliminate the UNE OSS obligation, are there any
alternative OSS providers on which competitive LECs could rely, to the
extent they need to do so? We seek comment on the assertions by TPx and
Socket that they rely on UNE OSS to serve their non-UNE based
customers. We also seek comment on whether OSS as a UNE is necessary
for competitive LECs and other providers subject to number porting
obligations. Is there a more efficient way to provide nondiscriminatory
access to OSS? Alternatively, regardless of whether the statutory
elements for forbearance are met, are competitive LECs impaired without
OSS, and should we make a finding of no impairment?
4. Other Considerations
64. For each network element or requirement discussed above, we
seek comment on whether requesting carriers are no longer impaired
without access to the element or requirement under section 251(d)(2),
or whether the forbearance criteria are met under section 10. We also
seek comment on whether additional considerations beyond impairment or
forbearance would justify our proposals, or any alternatives, for each
network element or requirement discussed above.
65. In particular, the D.C. Circuit has held that the Commission
must ``take into account not only the benefits but also the costs of
unbundling (such as discouragement of investment in innovation),''
which the Commission has done ``with the costs of unbundling brought
into the analysis under Sec. 251(d)(2)'s `at a minimum' language.''
For example, when evaluating unbundling previously, the Commission has
weighed the effects of unbundling on Congress's exhortation in section
706 of the 1996 Act that it ``encourage the deployment on a reasonable
and timely basis of advanced telecommunications capability to all
Americans'' by removing barriers to infrastructure investment. The
Commission more recently also has cited other potential costs or harms
of unbundling when addressing requests for relief from a number of
legacy wireline mandates imposed on incumbent LECs stemming from the
1996 Act. Such requirements can force incumbent LECs to maintain
outdated TDM equipment even when they no longer desire to offer those
services to their customers, undercutting the benefits of technology
transitions. They can also distort the marketplace by imposing
unnecessary costs on one class of competitors alone. The Commission has
also reiterated Justice Breyer's observation that ``mandatory
unbundling comes at a cost, including disincentives to research and
development by both incumbent LECs, competitive LECs and the tangled
management inherent in shared use of a common resource.'' In addition,
these requirements can create disincentives for competitors to invest
in their own facilities-based networks and transition their customers
to next-generation services. We seek comment on the full range of those
and any other relevant considerations and how they should affect our
analysis regarding each network element or requirement discussed above.
66. Additionally, to the extent that the Commission has cited a
given network element or requirement discussed above as a continuing
obligation that would remain when granting past regulatory forbearance,
we seek comment on how that should affect our analysis here. Given that
forbearance petitions are addressed based on the record compiled in the
relevant proceeding, we do not believe such past citations should alter
our actions in this proceeding or require the continued imposition of
particular requirements if the record here persuades us that relief is
warranted. We seek comment on that view.
67. Conversely, we seek comment on how other aspects of our
regulatory framework--such as the continued applicability of rate
regulations for DS1s and DS3s in certain areas, the imposition of a
reasonable comparability benchmark for voice services in areas
supported by our high-cost Universal Service Fund, or the continuing
obligation of all local exchange carriers ``not to prohibit, and not to
impose unreasonable or discriminatory conditions or limitations on, the
resale of its telecommunications services''--should weigh in our
analysis. We also seek comment more generally on the impact of
Commission policy changes, including the recently concluded USTelecom
forbearance proceeding, on the voice and broadband marketplace.
68. In addition to a number of specific proposals discussed above,
we also seek comment on alternative approaches for relief with respect
to each network element or requirement discussed above, either through
the impairment standard under section 251(d)(2) or forbearance under
section 10. For example, is relief justified in a broader or narrower
range of geographic areas? Are there different competitive conditions
than those identified above that should inform our grant of relief,
[[Page 482]]
and if so, how should that relief be tailored to those competitive
conditions? We note that some commenters request that we defer further
unbundling relief until we complete the process of revising our
broadband mapping data collection. In addition, are there
considerations flowing from the network deployment by incumbent LECs
and/or competitive LECs in a given area--such as the extent of the
providers' progress in implementing technology transitions--that should
inform the scope of, and triggers for, relief? Further, how should
administrability concerns inform the scope and mechanics of any relief
we grant? We also seek comment on whether special considerations apply
to small businesses with respect to each of our proposals above.
B. Avoided-Cost Resale
69. Except where we have forborne from such obligations, incumbent
LECs must make available at regulated wholesale rates
telecommunications services that they make available to their own non-
carrier retail customers. In the UNE Analog Loop and Avoided-Cost
Resale Forbearance Order, we granted price cap incumbent LECs relief
from the Avoided-Cost Resale requirement. Some parties effectively seek
reconsideration of our decision to forbear from the Avoided-Cost Resale
obligations granted in the UNE Analog Loop and Avoided-Cost Resale
Forbearance Order, rehashing arguments made in the record of that
proceeding. In this NPRM, we do not revisit the decisions made in the
UNE Analog Loop and Avoided-Cost Resale Forbearance Order, but we will
consider those commenters' arguments filed in the record here to the
extent that they bear on the issues raised in this proceeding.
70. We propose to extend to non-price cap incumbent LEC service
areas the forbearance previously granted with respect to Avoided-Cost
Resale in price cap incumbent LEC service areas. We seek comment on
this proposal. We base our proposal on the same reasons we stated for
granting such forbearance to price cap LECs--i.e., ``the breadth of the
voice service marketplace and the number of wholesale input
alternatives to competitive LECs seeking to continue serving customers
currently served by Avoided-Cost Resale.''
71. Are there reasons why non-price-cap areas may differ from price
cap areas with respect to the Avoided-Cost Resale requirement that is
only used to provision voice-grade service? What have been the effects
of the forbearance granted for Avoided-Cost Resale in the UNE Analog
Loop and Avoided-Cost Resale Forbearance Order? Commenters should
provide specific detail as to why continued Avoided-Cost Resale
requirements in non-price cap areas are or are not necessary (1) to
ensure that charges, practices, classifications, or regulations are
just and reasonable and are not unjustly or unreasonably
discriminatory; (2) to ensure the protection of consumers; and (3) to
serve the public interest. We also seek comment on the respective costs
and benefits of this proposal versus retaining the status quo, as well
as whether special considerations apply to small businesses.
C. Cost-Benefit Analysis
72. For the purpose of conducting a cost-benefit analysis of the
various proposals and alternatives for which we seek comment in this
NPRM, as to each network element or requirement addressed herein, we
seek comment on how many UNEs or Avoided-Cost resold services are
currently being purchased, and at what prices. In the absence of
unbundling and resale obligations, we seek comment on what proportion
of these arrangements would likely shift to alternative commercial
services offered by incumbent LECs or other competitors, or would be
self-provisioned, and at what prices or costs. If commenters expect
that prices for commercial alternatives for UNEs or resold services
will be higher or lower than the current rates, we seek comment on why
that would be so. If competitive LECs were to self-provision UNE
replacements, how should we estimate their market prices?
73. What are the expected impacts to investment of each network
element or requirement discussed above? If incumbent LECs or
competitive LECs increase their investment in fiber or next-generation
services as result of any relief, how should we account for such
increased investment in any cost-benefit analysis? To the extent that
the elimination of certain UNEs and resold services would have economic
effects on end users, we seek comment as to the magnitude of these
effects and how we should quantify them. For example, how can we
quantify the benefits of migrating users to next-generation services or
higher speed networks? Should we confine our analysis to consumers that
currently rely on UNEs or resold services (presumably indirectly) or
take into account the network effects that migrations to new networks
could have on all consumers?
74. We also seek comment on the benefits of lower compliance costs
for incumbent LECs and other parties, and any other benefits and costs
of our proposed actions. More generally, for each network element or
requirement discussed above, we seek comment on the respective costs
and benefits of particular alternative rules or approaches as compared
to retaining the current unbundling requirement.
D. Transition Plan
75. We propose, for all UNE and Avoided-Cost Resale relief that we
provide, a three-year transition period for existing customers. We seek
comment on whether we should include a six-month transition period for
new orders, and if so, for what elements of relief. We seek comment on
this proposal.
76. Our proposal is consistent with the UNE Transport Forbearance
Order and the UNE Analog Loop and Avoided-Cost Resale Order, both of
which provide three-year transition periods. In those orders, we
reasoned that three years was sufficient ``to fully ensure that current
and potential competition plays its expected role'' to ensure just and
reasonable rates, and for competitive LECs ``to replace their embedded
base of legacy TDM customer premises equipment and other increasingly
obsolete TDM-based peripheral devices with new IP-capable equipment.''
Similarly, the BDS Order provided a uniform transition period of three
years to allow existing customers to facilitate their transition to
alternative facilities or arrangements. Here, consistent with those
orders, we also propose a three-year transition for any eliminated UNE
and Avoided-Cost Resale obligations, whether we grant such relief
through a finding of non-impairment or through forbearance. We believe
that this transition period supplies the necessary incentives for both
incumbent and competitive LECs alike to deploy their own next-
generation networks as expeditiously as possible, while ensuring that
end users do not experience undue service disruption.
77. What conditions, if any, should apply to a transition period?
Are there special circumstances that require longer or shorter
transition periods for any particular UNEs? Should we provide different
transition periods for UNEs that we grant relief for based on a non-
impairment finding vs. those based on forbearance? What about for
Avoided Cost Resale? Should we provide a longer grandfathering period
for Puerto Rico, for reasons similar to the unique Puerto Rico
transition periods adopted in our recent forbearance orders?
78. We recognize that the transition mechanism is simply a default
process
[[Page 483]]
and carriers remain free to negotiate alternative arrangements
superseding this transition period. Any transition mechanism would not
replace or supersede any commercial arrangements carriers have reached
for the continued provision of facilities or services.
79. Alternatively, we seek comment on a transition period that is
shorter than three years for existing customers. In the BDS Order, the
Commission found that the presence of a nearby potential BDS competitor
would be expected to provide reasonably competitive outcomes for DS1
and DS3 services over three to five years. In the UNE Transport
Forbearance Order, we concluded that ``connecting nearby fiber . . . is
unlikely to take a full three years for any individual alternative
transport link,'' but also noted that two years had elapsed since the
BDS Order and a three-year transition would coincide with the outer
bound of the Commission's three to five year expectation in the BDS
Order; in the UNE Analog Loop and Avoided-Cost Resale Order, we noted
that a three-year period was consistent with prior Commission action
and ``should provide more than enough time for competitive LECs and
their customers to transition.'' Should we set a transition deadline of
August 2, 2022, which would align the transition period with those of
the UNE Transport Forbearance Order and the UNE Analog Loop and
Avoided-Cost Resale Order? If so, should we tie this shorter transition
period to only some relief or all relief granted? What are the
administrative benefits of syncing the transitions? Are such benefits
outweighed by what would be a shorter transition for those UNE and
Avoided-Cost Resale obligations that we seek comment on today?
80. We note that in the Triennial Review Remand Order, after
finding non-impairment, the Commission provided a transition period of
twelve months for high-capacity loops and DS1 and DS3 transport for
existing customers and eighteen months for UNE Dark Fiber Transport for
existing customers. What, if any, weight should we place on this prior
transition timeframe with respect to current UNE obligations that are
eliminated through a finding of non-impairment? Commenters should
provide any other input or considerations that should factor into our
transition timeframe determinations.
II. Initial Regulatory Flexibility Analysis
81. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities by the policies and rules proposed in this Notice of
Proposed Rulemaking (NPRM). The Commission requests written public
comments on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadlines for comments provided on the
first page of the NPRM. The Commission will send a copy of the NPRM,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
82. In the NPRM, we propose to modernize our unbundling and related
rules for local loops and dark fiber transport, as well as other types
of network elements. Specifically, the Commission proposes to eliminate
UNE DS1 and DS3 loop obligations in counties and study areas deemed
competitive in the BDS Order and the RoR BDS Order, UNE loops in urban
census blocks, unbundled dark fiber transport to wire centers that are
within a half mile of alternative fiber, UNE subloops in the particular
instances or geographic areas where we propose to find no impairment
for UNE DS0 loops for the underlying loop to the customer's premises,
the UNE Analog Loop obligation where it still applies, the unbundling
requirement for the narrowband frequencies of hybrid loops, the stand-
alone UNE network interface device (NID) obligation, the operations
support systems (OSS) unbundling obligation, except in the case where
it is used for managing other UNEs, and avoided-cost resale obligations
in non-price cap areas.
B. Legal Basis
83. The legal basis for any action that may be taken pursuant to
the NPRM is contained in sections 1 through 4, 10, and 201, 202, and
251 of the Communications Act of 1934, as amended, 47 U.S.C. 151
through 154, 160, 201, 202, and 251.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
84. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules 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.
1. Total Small Entities
85. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe here, at
the outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the SBA's Office of
Advocacy, in general a small business is an independent business having
fewer than 500 employees. These types of small businesses represent
99.9% of all businesses in the United States which translates to 30.2
million businesses.
86. Next, the type of small entity described as 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 August 2016, there were approximately 356,494 small
organizations based on registration and tax data filed by nonprofits
with the Internal Revenue Service (IRS).
87. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand.'' U.S. Census Bureau data from
the 2012 Census of Governments indicates that there were 90,056 local
governmental jurisdictions consisting of general purpose governments
and special purpose governments in the United States. Of this number
there were 37,132 general purpose governments (county, municipal and
town or township) with populations of less than 50,000 and 12,184
special purpose governments (independent school districts and special
districts) with populations of less than 50,000. The 2012 U.S. Census
Bureau data for most types of governments in the local government
category shows that the majority of these governments have populations
of less than 50,000. Based
[[Page 484]]
on these data we estimate that at least 49,316 local government
jurisdictions fall in the category of ``small governmental
jurisdictions.''
2. Broadband Internet Access Service Providers
88. Internet Service Providers (Broadband). Broadband Internet
service providers include wired (e.g., cable, DSL) and VoIP service
providers using their own operated wired telecommunications
infrastructure fall in the category of Wired Telecommunication
Carriers. Wired Telecommunications Carriers are comprised of
establishments primarily engaged in operating and/or providing access
to transmission facilities and infrastructure that they own and/or
lease for the transmission of voice, data, text, sound, and video using
wired telecommunications networks. Transmission facilities may be based
on a single technology or a combination of technologies. The SBA size
standard for this category classifies a business as small if it has
1,500 or fewer employees. U.S. 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. Consequently, under this size
standard, the majority of firms in this industry can be considered
small.
3. Wireline Providers
89. 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 show
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.
90. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA has developed a small business size standard
specifically for incumbent LEC services. The closest applicable size
standard under SBA rules is for the category Wired Telecommunications
Carriers as defined above. 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. A total of
1,307 firms reported that they were incumbent local exchange service
providers. Of this total, an estimated 1,006 have 1,500 or fewer
employees.
91. 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 above. 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. Also, 72 carriers have reported that
they are Other Local Service Providers. Of this total, 70 have 1,500 or
fewer employees. Consequently, based on internally researched FCC data,
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.
92. We have included small incumbent LECs in this present RFA
analysis. As noted above, a ``small business'' under the RFA is one
that, inter alia, meets the pertinent small business size standard
(e.g., a telephone communications business having 1,500 or fewer
employees), and ``is not dominant in its field of operation.'' The
SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent LECs are not dominant in their field of operation because any
such dominance is not ``national'' in scope. We have therefore included
small incumbent LECs in this RFA analysis, although we emphasize that
this RFA action has no effect on Commission analyses and determinations
in other, non-RFA contexts.
93. 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
above. The applicable size standard under SBA rules is that such a
business is small if it has 1,500 or fewer employees. U.S. Census data
for 2012 indicates that 3,117 firms operated during that year. Of that
number, 3,083 operated with fewer than 1,000 employees. According to
internally developed 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. Consequently, the Commission estimates that the
majority of IXCs are small entities that may be affected by our
proposed rules.
94. Local Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. The
Telecommunications Resellers industry comprises establishments engaged
in purchasing access and network capacity from owners and operators of
telecommunications networks and reselling wired and wireless
telecommunications services (except satellite) to businesses and
households. Establishments in this industry resell telecommunications;
they do not operate transmission facilities and infrastructure. Mobile
virtual network operators (MVNOs) are included in this industry. Under
that size standard, such a business is small if it has 1,500 or fewer
employees. Census data for 2012 show that 1,341 firms provided resale
services during that year. Of that number, all operated with fewer than
1,000 employees. Thus, under this category and the associated small
[[Page 485]]
business size standard, the majority of these prepaid calling card
providers can be considered small entities.
95. Other Toll Carriers. Neither the Commission nor the SBA has
developed a definition 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 above. Under the
applicable SBA 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. Thus, under this category and the associated
small business size standard, the majority of Other Toll Carriers can
be considered small. According to internally developed 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 are small entities
that may be affected by rules adopted pursuant to the Second Further
Notice.
96. Operator Service Providers (OSPs). Neither the Commission nor
the SBA has developed a small business size standard specifically for
operator service providers. The appropriate size standard under SBA
rules is for the category Wired Telecommunications Carriers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. According to Commission data, 33 carriers have reported that
they are engaged in the provision of operator services. Of these, an
estimated 31 have 1,500 or fewer employees and two have more than 1,500
employees. Consequently, the Commission estimates that the majority of
OSPs are small entities.
4. Wireless Providers--Fixed and Mobile
97. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, 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, U.S.
Census data for 2012 show that there were 967 firms that operated for
the entire year. Of this total, 955 firms had employment of 999 or
fewer employees and 12 had employment of 1000 employees or more. Thus
under this category and the associated size standard, the Commission
estimates that the majority of wireless telecommunications carriers
(except satellite) are small entities.
98. According to internally developed Commission data, 413 carriers
reported that they were engaged in the provision of wireless telephony,
including cellular service, Personal Communications Service, and
Specialized Mobile Radio Telephony services. Of this total, an
estimated 261 have 1,500 or fewer employees, and 152 have more than
1,500 employees. Thus, using available data, we estimate that the
majority of wireless firms can be considered small.
99. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation, and digital audio broadcasting satellite
uses. The Commission defined ``small business'' for the wireless
communications services (WCS) auction as an entity with average gross
revenues of $40 million for each of the three preceding years, and a
``very small business'' as an entity with average gross revenues of $15
million for each of the three preceding years. The SBA has approved
these definitions.
100. Wireless Telephony. Wireless telephony includes cellular,
personal communications services, and specialized mobile radio
telephony carriers. The closest applicable SBA category is Wireless
Telecommunications Carriers (except Satellite). Under the SBA small
business size standard, a business is small if it has 1,500 or fewer
employees. For this industry, U.S. Census Bureau 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 and 12 firms had 1000
employees or more. Thus under this category and the associated size
standard, the Commission estimates that a majority of these entities
can be considered small. According to Commission data, 413 carriers
reported that they were engaged in wireless telephony. Of these, an
estimated 261 have 1,500 or fewer employees and 152 have more than
1,500 employees. Therefore, more than half of these entities can be
considered small.
101. 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 $35
million or less. For this category, census data for 2012 show that
there were 1,442 firms that operated for the entire year. Of these
firms, a total of 1,400 had gross annual receipts of less than $25
million. Consequently, we estimate that the majority of All Other
Telecommunications firms are small entities that might be affected by
our action.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
102. The NPRM propose changes to, and seeks comment on, the
Commission's unbundling and related rules for local loops and dark
fiber transport, as well as other types of network elements. The
objective of the proposed modifications is to encourage the deployment
of next-generation networks and unburden incumbent LECs where there is
substantial evidence of facilities-based competition and market entry.
Beyond the benefits that providers will enjoy from a decreased
regulatory burden on their day-to-day operations, these changes would
not affect the reporting, recordkeeping, and other compliance
requirements of carriers, some of which are small entities.
E. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
103. 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
[[Page 486]]
requirements or timetables that take into account the resources
available to small entities; (2) the clarification, consolidation, or
simplification of compliance and reporting requirements under the rules
for such small entities; (3) the use of performance rather than design
standards; and (4) an exemption from coverage of the rule, or any part
thereof, for such small entities.
104. The rule changes proposed by the NPRM would reduce the
economic impact and market distortions of the Commission's unbundling
rules on incumbent LECs and would increase the incentives for incumbent
LECs and new entrants to invest in new facilities and deploy new
technologies. We seek comment as to any additional economic burden
incurred by small entities that may result from the rule changes
proposed in the NPRM.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
105. None.
III. Procedural Matters
106. Paperwork Reduction Act of 1995 Analysis. This document does
not contain proposed information collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore,
it does not contain any new or modified information collection burden
for small business concerns with fewer than 25 employees, pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4).
107. Initial Regulatory Flexibility Analysis. An initial regulatory
flexibility analysis (IRFA) is set forth above. Comments to the IRFA
must be identified as responses to the IRFA and filed by the deadlines
for comments on the Notice of Proposed Rulemaking. The Commission will
send a copy of the Notice of Proposed Rulemaking, including the IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration.
108. Ex Parte Information. This proceeding 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 list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and 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 section 1.1206(b) of the Commission's rules.
In proceedings governed by section 1.49(f) of the Commission's rules 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.
IV. Ordering Clauses
109. Accordingly, it is ordered that, pursuant to sections 1
through 4, 10, 201, 202, and 251 of the Communications Act of 1934, as
amended, 47 U.S.C. 151 through 154, 160, 201, 202, and 251, this Notice
of Proposed Rulemaking is adopted.
110. It is further ordered that the Commission's Consumer &
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
List of Subjects in 47 CFR Part 51
Communications common carriers, Telecommunications.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rule
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 51 as follows:
PART 51--INTERCONNECTION
0
1. The authority citation for part 51 continues to read as follows:
Authority: 47 U.S.C. 151 through 155, 201 through 205, 207
through 209, 218, 225 through 227, 251 through 252, 271, 332 unless
otherwise noted.
0
2. Amend Sec. 51.319 by:
0
a. Revising paragraph (a)(1);
0
b. Removing paragraph (a)(3)(iii)(C); and
0
c. Revising paragraphs (a)(4)(i), (a)(5)(i), (b), and (d)(2)(iv).
The revisions read as follows:
Sec. 51.319 Specific unbundling requirements.
(a) * * *
(1) Copper loops. An incumbent LEC shall provide a requesting
telecommunications carrier with nondiscriminatory access to the copper
loop in census blocks defined as rural by the Census Bureau on an
unbundled basis. A copper loop is a stand-alone local loop comprised
entirely of copper wire or cable. Copper loops include two-wire and
four-wire analog voice-grade copper loops, digital copper loops (e.g.,
DS0s and integrated services digital network lines) as well as two-wire
and four-wire copper loops conditioned to transmit the digital signals
needed to provide digital subscriber line services, regardless of
whether the copper loops are in service or held as spares. The copper
loop includes attached electronics using time division multiplexing
technology, but does not include packet switching capabilities as
defined in paragraph (a)(2)(i) of this section. The availability of DS1
and DS3 copper loops is subject to the requirements of paragraphs
(a)(4) and (5) of this section.
* * * * *
(4) * * * (i) Subject to the cap described in paragraph (a)(4)(ii)
of this section, an incumbent LEC shall provide a requesting
telecommunications carrier with nondiscriminatory access to a DS1 loop
on an unbundled basis to any building not served by a wire center with
at least 60,000 business lines and at least four fiber-based
collocators. Once a wire center exceeds both the business line and
fiber-based collocator thresholds, no future DS1 loop unbundling will
be required in that wire center. In addition, a DS1 loop only is
available to a building located in one or more of the following: (A)
Any county or portion of a county served by a price cap incumbent LEC
that is not included on the list of counties that have been
[[Page 487]]
deemed competitive pursuant to the competitive market test established
under 49 CFR 69.803; (B) any study area served by a rate-of-return
incumbent LEC provided that study area is not included on the list of
competitive study areas pursuant to the competitive market test
established under 47 CFR 61.50; or (C) any census block defined as
rural by the Census Bureau if being requested solely to serve
residential customers. A DS1 loop is a digital local loop having a
total digital signal speed of 1.544 megabytes per second. DS1 loops
include, but are not limited to, two-wire and four-wire copper loops
capable of providing high-bit rate digital subscriber line services,
including T1 services.
* * * * *
(5) DS3 loops. (i) Subject to the cap described in paragraph
(a)(5)(ii) of this section, an incumbent LEC shall provide a requesting
telecommunications carrier with nondiscriminatory access to a DS3 loop
on an unbundled basis to any building not served by a wire center with
at least 38,000 business lines and at least four fiber-based
collocators. Once a wire center exceeds the business line and fiber-
based collocator thresholds, no future DS3 loop unbundling will be
required in that wire center. In addition, a DS3 loop only is available
to a building located in one of the following: (A) Any county or
portion of a county served by a price cap incumbent LEC that is not
included on the list of counties that have been deemed competitive
pursuant to the competitive market test established under 49 CFR
69.803; or (B) any study area served by a rate-of-return incumbent LEC
provided that study area is not included on the list of competitive
study areas pursuant to the competitive market test established under
47 CFR 61.50. A DS3 loop is a digital local loop having a total digital
signal speed of 44.736 megabytes per second.
* * * * *
(b) Subloops. An incumbent LEC shall provide a requesting
telecommunications carrier with nondiscriminatory access to subloops on
an unbundled basis in accordance with section 251(c)(3) of the Act and
this part and as set forth in paragraph (b) of this section, provided
that the underlying loop is available as set forth in paragraph (a) of
this section.
* * * * *
(d) * * *
(2) * * *
(iv) Dark fiber transport. Dark fiber transport consists of
unactivated optical interoffice transmission facilities. Incumbent LECs
shall unbundle dark fiber transport between any pair of incumbent LEC
wire centers except where, through application of tier classifications
described in paragraph (d)(3) of this section, where both wire centers
defining the route are either Tier 1, Tier 2, or a Tier 3 wire center
identified on the list of wire centers that has been found to be within
a half mile of alternative fiber pursuant to the Report and Order on
Remand and Memorandum Opinion and Order in WC Docket No. 18-14, FCC 19-
66 (released July 12, 2019). An incumbent LEC must unbundle dark fiber
transport if a wire center on either end of a requested route is a Tier
3 wire center that is not on the published list of wire centers.
* * * * *
[FR Doc. 2019-27607 Filed 1-3-20; 8:45 am]
BILLING CODE 6712-01-P