On Monday, September 15, 2014, the FCC’s Wireline Competition Bureau (“WCB”) issued a Reconsideration Order revising the mandatory data collection in the special access proceeding based on concerns raised by the Office of Management and Budget (“OMB”). In this Order, the Bureau set December 15, 2014, as the deadline for responding to the data collection and modified the questions and instructions adopted in the FCC’s September 2013 and December 2012 Orders described in our previous regulatory updates of September 18, 2013, and December 18, 2012.
A number of parties have expressed concerns over their ability to answer the FCC’s questions. We are continuing to work with a number of clients on these issues, and would be happy to assist you with your responses. 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 December 2012 and subsequently adopted revisions in September 2013. The data collection seeks information from purchasers and providers of special access in price cap ILEC territories nation-wide. OMB, pursuant to a Paperwork Reduction Act review, conditioned approval on changes that reduce the burden on responding parties. Those changes include the following.
- Collection Covers 2013 Data Only: The original collection sought two years of data (2010 and 2012).
- Purchaser Exemption For those Purchasing Less than $5 Million in Dedicated Services: The Data Collection remains mandatory for both “Providers” and “Purchasers” of Special Access that hold licenses, authorizations or registrations under the FCC’s rules. OMB approval, however, adds an exemption for purchasers who procured less than $5 million of Dedicated Services in 2013 in price cap ILEC territories.
- Purchasers Have Option to Respond to Certain Questions: While Purchasers above the $5 million threshold must respond, the OMB approval converts some questions from mandatory to optional. These are Questions II.E.4-8, II.E.14, II.F.3-7, and II.F.13. These specific questions are covered in more detail below.
- Disaggregation by Bandwidth Limited: Some questions (II.A.16, II.B.9, II.E.7-8, and II.F.6-7) regarding revenue and expenditures ask respondents to disaggregate answers by bandwidth. OMB required that reporting such data was only mandatory where the respondent has kept such detail in the ordinary course of business. Otherwise, such disaggregation is voluntary.
- RFPs: In question II.A.11, regarding Competitive Providers’ responses to RFPs and business rules for fiber builds, responses are only required where the respondent’s bid won; otherwise, response is optional.
- CLLI Codes: Question II.E.2.d. (covering wireless provider cell sites) no longer requires reporting the ILEC wire center CLLI code unless the respondent keeps such information in the ordinary course. Otherwise, providing the CLLI code is optional.
- Geocode for Locations with Connections: Providers only need to report the Geocode if that is data they keep in the ordinary course; otherwise, reporting geocodes for questions II.A.4.c (CLECs) and II.B.3.c (ILECs) is optional.
- Fiber Maps/Nodes: In answering question II.A.5 (requiring a fiber route map), cable providers need not show feeder links to locations but only interoffice transport. And cable companies need not report their headends that have not been upgraded to provide metro Ethernet or a functional equivalent.
- Effective Date: The Order is effective upon publication in the Federal Register and no further OMB review is required.
- Other Procedural Issues: The Order indicates the FCC will post additional instructions regarding submission, will adopt a protective order to cover submission and review of confidential material; and will release a database container file for submitting data.
Purchaser Questions Made Optional (together with the 2013 changes Purchasers now only need to respond to II.E.1-3, II.E.12, II.E.15, II.F.1-2, II.F.11, and II.F.14 and Purchasers that are mobile wireless providers now only need to respond to II.E.1-3, II.E.12, and II.E.15).
- II.E.4-5 (mobile wireless providers)/ II.F.3-4 (all other purchasers)
covers expenditures for DS1/DS3 and packet based dedicated services such as Ethernet purchased under tariff from an ILEC (II.E.4/ II.F.3) or CLEC (II.E.5/ II.F.4).
- II.E.6 (mobile wireless providers)/ II.F.5 (all other purchasers)
covers expenditures for DS1/DS3 and packet based dedicated services such as Ethernet purchased under contract from an ILEC or CLEC.
- II.E.7-8 (mobile wireless providers)/ II.F.6-7 (all other purchasers)
covers expenditures for packet based dedicated services such as Ethernet purchased from an ILEC or CLEC either under Tariff (II.E.7/ II.F.6) or under contract (II.E.8/ II.F.7). These questions ask for data disaggregated by bandwidth (<1.5 Mbps, between 1.5 and 50 Mbps etc.) but this is only required if respondent keeps such information in the ordinary course; otherwise, it is optional.
- II.E.14 (mobile wireless providers)/ II.F.13 (all other purchasers)
requires providers to identify and provide detail regarding each tariff under which DS1/DS3 or Packet based dedicated services are purchased.
Disaggregation by Bandwidth Made Optional
- In addition to the changes made to the questions asking purchasers to disaggregate data by bandwidth (II.E.7-8, II.F.6-7) similar questions for Providers (II.A.16 (CLECs) and II.B.9 (ILECs)), covering revenues from selling packet based dedicated services such as Ethernet also have been made optional where data is not disaggregated in the ordinary course.
If you wish to further discuss this order please do not hesitate to contact me or my colleagues:
Andy Lipman, Partner
andrew.lipman@bingham.com, +1.202.373.6033
Russell Blau, Partner
russell.blau@bingham.com, +1.202.373.6035
Eric Branfman, Partner
eric.branfman@bingham.com, +1.202.373.6553
Tamar Finn, Partner
tamar.finn@bingham.com, +1.202.373.6117
Josh Bobeck, Of Counsel
josh.bobeck@bingham.com, +1.202.373.6010