In today’s Federal Register, the FCC published a Notice, as required by the Paperwork Reduction Act, requesting that interested parties comment on the burden of its new mandatory data collection requirements for special access providers. The requirements were adopted in the FCC’s Report and Order in Special Access for Price Cap Local Exchange Carriers; WC Docket No. 05-25, released December 18, 2012, but cannot go into effect until the public is given the opportunity to comment on them and the Office of Management and Budget (“OMB”) has approved them. The data collection would be a one-time filing, covering calendar years 2010 and 2012. It is intended to allow the FCC “to conduct a comprehensive evaluation of competition in the special access market” that would serve as the basis for deciding whether to amend its pricing flexibility rules.
The Notice asks for comment on “whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission’s burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information burden for small business concerns with fewer than 25 employees.”
The data collection requirements would be mandatory for providers and purchasers of special access that are subject to the FCC’s jurisdiction. The data requests are complex, being preceded by five pages of defined terms before even getting to the substance of the questions. They are voluminous, covering some 18 pages of single-spaced type, with most questions requiring multi-part answers covering multiple circumstances. And each question requires very detailed information, which in many cases will be highly sensitive. (There is already a protective order in this Docket, so responses could be designated as confidential in accordance with that order.)
To give a sense of the scope and sensitivity of the required information, a competitive provider would be required (as just one of 22 questions applicable to it) to provide the following for every location to which it provided a dedicated Connection as of December 31, 2010 and as of December 31, 2012. (All capitalized words are defined in the Report and Order.)
a. A unique ID for the Location;
b. The actual situs address for the Location (i.e., land where the building or cell site is located);
c. The geocode for the Location (i.e., latitude and longitude);
d. The Location type (e.g., building, other man-made structure, cell site in or on a building, free-standing cell site, or a cell site on some other man-made structure like a water tower, billboard, etc.);
e. Whether the Connection provided to the location uses facilities leased from another entity under an IRU or obtained as a DS1/DS3 UNE or Unbundled Copper Loop, and in each case, the name of the lessor of the majority of the fiber strands and/or copper loop;
f. Whether any of the Connections to the location are provided using fiber;
g. The total sold bandwidth of all Connections provided by you to the Location in Mbps;
h. The total bandwidth to the Location sold directly by you to an End User;
i. The total sold fixed wireless bandwidth provided by you to the Location; and
j. The total bandwidth sold by you to any cell sites at the Location.
Other detailed information would be required on network routes, company history and relationships, marketing materials, maps, RFPs to which the company has responded (and details as to the RFPs and the company’s bids), billings (including adjustments, rebates and true-ups), revenues, term and volume commitments and the like. The Report and Order also imposes a requirement that underlying data be retained by each respondent for at least three years.
According to the Notice, the FCC estimates that it will take the average respondent 134 hours to respond, but it does not explain how it arrived at this number. Given the scope and volume of the questions, this estimate could easily be low in the case of any given responding party.
Penalties for failure to provide the required information would be stiff: $150,000 per violation or day, up to a maximum of $1,500,000 for a continuing violation. The FCC would provide no special confidentiality protections, though presumably its standard protections and procedures would apply.
Comments are due on April 15, 2013.
Please do not hesitate to contact us if you would like more information about how the data gathering requirements proposed by the FCC may impact your company or would like to file comments regarding the burden involved in responding.
Andrew D. Lipman
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:Lipman-Andrew
This article was originally published by Bingham McCutchen LLP.