Today, the FCC’s Wireline Competition Bureau (“WCB”) issued an Order adopting a mandatory data collection in the special access proceeding. This Order follows the FCC’s December 2012 Report and Order and Further Notice of Proposed Rulemaking described in our December 2012 regulatory update titled “FCC Releases Special Access Order on Mandatory Data Collection and Further Notice of Proposed Rulemaking.” A copy of our earlier update can be found here. In today’s Order, the WCB modifies the mandatory Data Collection for special access that was issued last December, and provides instructions for entities required to respond. The FCC will not issue a deadline for responding to the Data Collection until it receives final approval from OMB.
A number of parties have expressed concerns over their ability to answer the FCC’s data requests. We are continuing to work with a number of clients on these issues, and would be happy to assist you with your responses to the request. Please feel free to contact us if you have any questions or would like to discuss your responses to the FCC’s data request or the special access proceeding generally.
Changes to the FCC’s Data Collection
The FCC first issued the mandatory data collection in its December 2012 Order. The Data Collection seeks information from purchasers and providers of special access, on a nation-wide basis, for calendar years 2010 and 2012. In its December 2012 Order, the FCC delegated authority to the Wireline Competition Bureau to take a number of actions, including drafting instructions and amending the data collection based on public comment. In response to such public comment, the WCB has adopted a number of changes to the data collection, outlined briefly here:
- Definition of Purchaser: The Data Collection is mandatory for Providers of Special Access and Purchasers of Special Access that are subject to the FCC’s jurisdiction under the Communications Act. The Order exempts from its definition of Purchasers entities that are subject to a specific set of FCC rules, primarily pertaining to radio and equipment licensing and authorization. But these exclusions are limited and don’t allow affiliated Providers or Purchasers to escape the data collection simply because an affiliated entity qualifies for the exclusion.
- Price Cap Markets Only: The Data Collection is limited to markets served by price Cap ILECs. Submissions are not required (but are permitted) regarding services purchased or provided in areas served by non price-cap ILECs. Entities need not respond at all if they only provide/purchase special access or other covered services in non-price-cap markets (except as noted below for Form 477 filers).
- Form 477 Filers: All Form 477 filers that provide broadband connections to end users in price cap areas must respond to the Data Collection. Those Form 477 filers that are also a Provider or Purchaser of Special Access or provide Best Efforts Broadband must complete the data collection requirements applicable to those entities. Other Form 477 filers that don’t fall within any of those categories (for example, a filer that only provides broadband in a rate-of-return area) must certify to that effect but need not respond to the other data requests.
Clarifications in the Instructions for the Data Collection:
- Guidance on “Capable Connections”: The Data Collection seeks information from Providers regarding Locations with owned or Leased Connections that can or could be used to provide Dedicated Services. The Order sets out different requirements for Non-Cable Competitors, Cable Competitors and ILECs with respect to the treatment of “idle” Connections. In short, non-cable CLECs must report Connections whether active or not; cable providers must report idle connections in their local franchise areas if they are attached to a node that has been upgraded to provide metro Ethernet (or an equivalent service). For Connections not linked to a metro Ethernet-capable node, the cable competitors need only report in-service connections used to provide a dedicated service. Outside their local franchise areas, the cable competitors should respond similar to the Non Cable Competitor. ILECs need not report copper loops that cannot support at least 1.5 Mbps in both direction.
- Location type: The Data Collection asks Providers to identify the type of Location where the Provider has a Connection. Under the Order, filers can indicate the type of location is unknown.
- Mapping: Competitive Providers are required to submit maps showing fiber routes, including connections to Locations; Nodes used to interconnect and the date such Node went into service. The Order clarifies the scale for the mapping data is 1:24,000, which the WCB believes will make it easier for filers to submit maps of their fiber routes, including connections to locations. Competitive providers can provide information they reported to the CLONES database as long as the provider certifies that the information is current and accurate. Reporting of Node locations only need to be accurate within plus or minus 0.0005 decimal degrees; respondent do not need to identify the year the node went live if it was earlier than 1995.
- Billing Information: The collection seeks monthly billing information billed at the rate element level (but tied to the circuit); adjustment codes and billing codes. Respondents have multiple options for providing billing codes, using either the ILEC-based diagram in the Instructions, creating their own codes or using USOC codes.
- Headquarters: The Collection requires competitors to provide the locations of their headquarters (including affiliates’) dating back to 1995. The Order exempts cable companies from this requirement as it does not shed any light on deployment of competitive facilities for dedicated services.
- Narrative Responses from Purchasers: The Collection asks purchasers for a narrative response to a number of questions. The Order clarifies that that the purchaser can simply indicate it doesn’t wish to highlight any issues in its response.
- Other Modifications: The Order makes nearly forty other revisions to the definitions or questions contained in the collection. A few significant changes are highlighted here: the definition of affiliate is changed to 10% common ownership with a Purchaser or Provider; the definition of Dedicated Service is modified so that the minimum bandwidth of 1.5 Mbps applies both downstream and upstream; the definition of IRU is modified to exclude any IRUs with a term of less than 10 years and to clarify that the IRU’s duration need not equal the asset’s remaining economic life; the definition of tariff is clarified to cover Tariff plans and Contract tariffs.
Effective Date of the Order
The Order is effective thirty (30) days after publication in the Federal Register. The Data Collection is still awaiting OMB approval and once approved, the FCC will issue a notice regarding the deadline for responding, post additional instructions online, and create an electronic interface for submitting information.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers: