[Federal Register Volume 77, Number 100 (Wednesday, May 23, 2012)]
[Rules and Regulations]
[Pages 30411-30423]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-12539]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 36 and 54
[WC Docket Nos. 10-90, 05-337; DA 12-646]
Connect America Fund; High-Cost Universal Service Support
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this order, the Wireline Competition Bureau (Bureau) adopts
the methodology for establishing reasonable limits on recovery of
capital costs and operating expenses or ``benchmarks'' for high cost
loop support (HCLS). The methodology the Bureau adopts, builds on the
analysis proposed in the USF/ICC Transformation FNPRM, but also
includes several changes in response to the comments from two peer
reviewers and interested parties and based on further analysis by the
Bureau. These changes significantly improve the methodology while
redistributing funding to a greater number of carriers to support
continued broadband investment. The methodology the Bureau adopts today
is described in detail in a technical appendix to the order.
DATES: Effective June 22, 2012.
FOR FURTHER INFORMATION CONTACT: Amy Bender, Wireline Competition
Bureau, (202) 418-1469, Katie King, Wireline Competition Bureau, (202)
418-7491 or TTY: (202) 418-0484.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
in WC Docket Nos. 10-90, 05-337; DA 12-646, released on April 25, 2012.
The full text of this document is available for public inspection
during regular business hours in the FCC Reference Center, Room CY-
A257, 445 12th Street SW., Washington, DC 20554. Or at the following
Internet address: http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0425/DA-12-646A1.pdf.
I. Introduction
1. In the USF/ICC Transformation Order, 76 FR 73830, November 29,
2011, the Commission comprehensively reformed universal service funding
for high-cost, rural areas, adopting fiscally responsible, accountable,
incentive-based policies to preserve and advance voice and broadband
service while ensuring fairness for consumers who pay into the
universal service fund (Fund). As a component of those reforms, the
Commission adopted a benchmarking rule intended to moderate the
expenses of those rate-of-return carriers with very high costs compared
to their similarly situated peers, while further encouraging other
rate-of-return carriers to advance broadband deployment. The Commission
sought comment on a specific methodology to limit reimbursable capital
and operating costs within HCLS and directed the Bureau to finalize a
methodology after receiving public input in response to the proposal.
2. The methodology the Bureau adopts today, which is described in
more detail in the technical appendix, summarized below and available
in its entirety at Appendix A, http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0425/DA-12-646A1.pdf, builds on the
analysis proposed in the USF/ICC Transformation FNPRM, 76 FR 78384,
December 16, 2011, but also includes several changes in response to the
comments from two peer reviewers and interested parties and based on
further analysis by the Bureau. These changes significantly improve the
methodology while redistributing funding to a greater number of
carriers to support continued broadband investment. The Bureau now
estimates that support to approximately 100 study areas with very high
costs relative to similarly situated peers will be limited, while
approximately 500 study areas will receive additional, redistributed
support to fund new broadband investment.
3. In view of the Commission's intent to ``phase in reform with
measured but certain transitions,'' the Bureau will phase in the
application of these limits. As directed by the Commission, the Bureau
is providing public notice in Appendix B (http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0425/DA-12-646A1.pdf) regarding
the updated company-specific capped values that will be used in the
HCLS formula. These capped values (also referred to as limits or
benchmarks) will be used from July 1, 2012 through December 31, 2012,
in place of an individual company's actual cost data for those rate-of-
return cost companies whose costs exceed the caps. While the HCLS
benchmarks will be implemented beginning July 1, 2012, support amounts
will not be reduced immediately by the full amount as calculated using
the benchmarks. Instead, support will be reduced commencing in July
2012 by twenty-five percent of the difference between the support
calculated using the study area's reported cost per loop and the
support as limited by the benchmarks, unless that reduction
[[Page 30412]]
would exceed ten percent of the study area's support as otherwise would
be calculated based on NECA cost data, absent implementation of this
rule. Beginning January 1, 2013, support will be reduced by fifty
percent of the difference between the support calculated using the
study area's reported cost per loop and the support as limited by the
benchmarks in effect for 2013. Beginning January 1, 2014, when the
Bureau expects to have updated wire center boundaries, as discussed
below, the Bureau will update the regressions (the coefficients), and
support will be limited, in full, by the benchmarks in effect for 2014.
When fully implemented, the Bureau estimates that the roughly 100 study
areas that are capped would see approximately $65 million in support
reductions, while the roughly 500 study areas that are not capped would
receive approximately $55 million in additional support for broadband
investment.
II. Discussion
4. In this order, the Bureau implements the Commission's rule to
use benchmarks to impose reasonable limits on reimbursable capital and
operating costs for rate-of-return carriers for purposes of determining
HCLS and adopt the methodology that the Bureau will use to determine
carrier-specific benchmarks for rate-of-return cost companies.
Consistent with parameters set forth by the Commission, the Bureau
compares companies' costs to those of similarly situated companies
using statistical techniques to determine which companies shall be
deemed similarly situated. As described in more detail in the technical
appendix, summarized below, the Bureau uses NECA cost data and quantile
regression analyses to generate a capital expense (capex) limit and an
operating expense (opex) limit for each rate-of-return cost company
study area. The regression-derived limits are set at the 90th
percentile of costs for capex and opex compared to similarly situated
companies. The capped values will be used in NECA's loop cost algorithm
in place of an individual company's actual cost data for those rate-of-
return cost companies whose costs exceed the caps, which will result in
reduced support amounts for these carriers. As directed by the
Commission, NECA will modify the HCLS formula for average schedule
companies to reflect the caps derived from the cost company data.
Specifically, the Bureau directs NECA to file proposed modifications to
the average schedule formula within 30 days of the release of this
order. After application of the benchmark methodology, HCLS will be
recalculated to account for the additional support available under the
overall cap on total HCLS. Additional support will be redistributed to
carriers whose loop cost is not limited by the benchmark methodology,
and those carriers are required to use the additional support to
preserve and advance the availability of modern networks capable of
delivering broadband and voice telephony service. Beginning January 1,
2014, carriers unaffected by the benchmark limits will receive
additional redistributed support as calculated using a lower adjusted
national average cost per loop (NACPL). The lower NACPL will be the
NACPL that would be used if total reduced support, as a result of the
application of the benchmark methodology, is redistributed to all
carriers. Support to carriers affected by the benchmark will be
calculated using the NACPL established pursuant to Sec. 36.622 of the
Commission's rules. During the transition periods July 1, 2012 to
December 31, 2012 and January 1, 2013 to December 31, 2013, the total
amount of HCLS available to study areas not affected by the benchmark
methodology will be the capped HCLS, as calculated pursuant to Sec.
36.603(a) of the Commission's rules, less the total amount to be paid
to study areas affected by the benchmark methodology during the
transition periods. HCLS paid to the study areas not affected by the
benchmark methodology will be calculated using an adjusted NACPL to
produce the capped support pursuant to Sec. 36.603(a) of the
Commission's rules. The Bureau directs NECA to provide to the Bureau a
recalculated NACPL for redistribution and a schedule of HCLS for all
carriers for the six-month period of July 1, 2012 to December 31, 2012
within 30 days of the release of this order. Consistent with current
practice, the filing NECA makes each October with the Commission shall
include NACPL information and the schedule of HCLS for all carriers for
the next year.
5. The methodology that the Bureau adopts builds on the proposed
methodology in Appendix H of the USF/ICC Transformation Order and
FNPRM, but includes some significant improvements based on the many
useful comments and ex parte presentations in this proceeding, the
comments of two peer reviewers, and further analysis by the Bureau. As
in the proposed methodology, the Bureau uses quantile regression
analysis and NECA cost data to generate a set of limits for each rate-
of-return cost company study area and uses the regression-derived
limits in NECA's formula for calculating loop cost. The Bureau modifies
the proposal, however, by reducing the overall number of regressions
from eleven to two: one for capital expenditures and one for operating
expenditures. In addition, Commission staff examined and tested
additional independent variables that were available from publicly
available data sources, placed additional data sources in the record,
and updated the methodology to reflect this further analysis. Below,
the Bureau explains these changes to the proposed methodology and
responds to other significant issues raised in the record.
A. Number of Regressions
6. The most significant change in methodology is that this analysis
generates two caps for each company--a capex limit and an opex limit.
The methodology proposed in the FNPRM generated eleven different caps
for each company that would have limited the values in eleven of the
twenty-six steps in NECA's loop cost algorithm. Based on a review of
the record and further analysis, the Bureau concludes that a better
approach is to divide a company's total cost in step twenty-five of the
algorithm into its capex and opex components and use two regressions
instead of using eleven independent regressions.
7. Commenters took differing views on the appropriate number of
regressions. Commenters supporting more aggregation argue that limiting
total cost, or separately limiting capital and operating expenses, is a
better approach and suggest the Bureau use a single regression
equation, or at most two equations. One peer reviewer also recommended
this approach. Conversely, some commenters argued that the proposed
eleven limits would not have allowed the algorithm to calculate support
as it was intended, and proposed that costs be further disaggregated to
the underlying cost elements, i.e., ``data lines,'' that make up each
algorithm step.
8. The choice of how many cost limits to adopt reflects a balancing
of considerations. Using a greater number of regressions makes it
possible to identify outliers at a granular level, but fails to account
for the interrelationships within the cost categories that feed into
the twenty-six step algorithm as identified in the record and in the
peer review. In contrast, using fewer regressions limits the
Commission's ability to identify outliers, but enables carriers to
account for the needs of individual networks and recognizes the fact
that carriers may have higher costs in one category that may be offset
by lower costs in others.
[[Page 30413]]
9. Balancing these considerations, the Bureau concludes that it is
appropriate to reduce the number of separate cost caps set from the
proposed approach in Appendix H, but to retain separate limits for
capex and opex. The Bureau is persuaded that limiting eleven separate
cost categories could have the effect of overly limiting carriers'
ability to optimize among spending tradeoffs. At the same time, an
approach that only limited total cost would provide fewer safeguards
against overspending. Capital and operating expenditures reflect
fundamentally different measures of business performance. Using two
regressions instead of one provides carriers flexibility to manage
their operations, while still enabling the Commission to identify more
instances where carriers spend markedly more in either category than
their similarly-situated peers.
10. The approach the Bureau adopts is also supported by other
considerations. In particular, the methodology the Bureau adopts
simplifies the process of fitting the benchmark computation within the
structure of NECA's loop cost algorithm. Instead of potentially
limiting values in eleven of the twenty-six steps, only the value for
companies that exceed the caps in step twenty-five, total unseparated
costs is changed. Although the components of step twenty-five are
divided into capex and opex components for purposes of running two
regressions and separate capex and opex limits are created, the two
components are added together for purposes of calculating total costs,
study area cost per loop, and ultimately HCLS.
B. Defining Capex and Opex
11. As discussed below and in more detail in the technical
appendix, the Bureau defines capex as the plant-related costs in step
twenty-five, which include return on capital and depreciation, and
defines opex as the remaining components that are added in step twenty-
five to calculate total costs. These revised definitions of capex and
opex differ from those used in the proposed methodology in several
important ways.
12. The most important revision to the capex definition is the
treatment of depreciation in relationship to capital costs. To
determine capex limits, the proposed methodology created separate caps
for two categories of gross plant (cable and wire facilities, and
central office equipment), and for the depreciation and amortization
associated with those plant categories. In the revised methodology, the
Bureau defines capex as the return on net plant and depreciation. Many
commenters pointed out that the proposed methodology did not properly
account for accumulated depreciation and depreciation expense, and the
Bureau agrees. The Bureau does not agree, however, with those who argue
that depreciation expense should not be included in the regression
analysis. Although depreciation is termed an ``expense'' for regulatory
accounting purposes, as the Rural Associations and several other
commenters point out, depreciation expense is properly considered as a
component of capital costs because it is directly related and
calculated as a result of capital investment. The proposed methodology
would have limited gross plant, but did not adjust the accumulated
depreciation or depreciation expense as would have been necessary when
gross plant was limited by the benchmark. The method the Bureau now
adopts includes net plant rather than gross plant, so the methodology
appropriately accounts for accumulated depreciation.
13. The revised opex definition includes the remaining components
that are summed in step 25 in the NECA algorithm to determine total
unseparated costs. The proposed methodology excluded three of these--
corporate operations expense, operating taxes, and rents--which are now
included in determining opex. In the USF/ICC Transformation Order, the
Commission revised the formula for limiting recovery of corporate
operations expenses for HCLS in Sec. 36.621(a)(4) of the Commission's
rules. Because of this separate limitation, the proposed methodology
did not create an additional limit for corporate operations expense.
Now that the Bureau is analyzing all operating costs as a whole, it is
appropriate to include corporate operations expense, as well as the
other operating expenses, taxes and rents. For purposes of this
analysis, the methodology will use either a carrier's actual corporate
operations expense or the amount allowable under Sec. 36.621(a)(4),
whichever is less. Using the allowable amount, avoids restricting
carriers affected by Sec. 36.621(a)(4) twice for their corporate
operations expenses above that limitation.
C. Selection of Independent Variables
14. The revised methodology also includes additional independent
variables that were suggested by commenters and one of the peer
reviewers, and eliminates some that had been included in the
methodology proposed in the USF/ICC Transformation FNPRM, because the
Bureau found the new variables to be better estimators of cost. In the
USF/ICC Transformation FNPRM, the Commission noted that NRIC's Capital
Expenditure Study included variables for frost index, wetlands
percentage, soils texture, and road intersections frequency, and
invited commenters advocating the inclusion of additional independent
variables to identify the data source, completeness, and cost of the
additional data, if not publicly available. The Commission specifically
sought comment on sources of soil data other than the Soil Survey
Geographic Database (SSURGO) used in the NRIC study and how to deal
with areas where the SSURGO data are missing or incomplete. Many
commenters suggest additional variables, and Bureau staff examined
those for which data were available. The technical appendix describes
in more detail the independent variables included in the methodology,
those examined but excluded, and those that commenters suggested but
that could not be included because the data were either unavailable to
the Commission, nonpublic, or could not be generated at the study area
level. The variables included in the revised methodology are briefly
discussed below.
15. The methodology uses cost-driving variables directly where
available and proxies that are sufficiently correlated with cost
drivers where necessary. For example, the number of loops is a direct
measure of a study area's scale, and the number of road miles is a
proxy for total loop length. Because most cable follows roads, it is
reasonable to believe that the number of road miles in a study area is
a good proxy for the cabling required to serve that area. Some
commenters suggest that the age of plant is an important variable, and
the Bureau agrees. Many carriers have recently replaced aging plant
with modern communications networks capable of providing voice and
broadband service, and those carriers are not similarly situated to
carriers with plant that is more fully depreciated. Accordingly, while
data on the average age of plant are not readily available, the revised
methodology now includes a variable for the percentage of plant that
has not yet been depreciated, which is highly correlated with plant
age. The revised methodology also includes variables that account for
customer dispersion: density (housing units divided by square miles);
number of exchanges, which roughly accounts for the population centers
in a study area; and portion of households in urbanized clusters or
urbanized areas.
[[Page 30414]]
16. In addition, the revised methodology includes several
geographic independent variables that Bureau staff developed from
various data sources. First, the Bureau agrees with the many commenters
who argue that the proposed methodology should include soils data.
Bureau staff used the U.S. General Soil Map (STATSGO2) soils database
to construct two soil-based variables that are included in the revised
methodology: depth of bedrock, and soils difficulty. Although the
SSURGO database contains a richer set of soil variables and data at a
more granular level than STATSGO2, it does not provide data for the
entire country. Some commenters argue that the SSURGO data should be
used where available and STATSGO2 for the remaining study areas, but
the Bureau declines to use an approach that treats study areas
differently depending on the availability of the data. In addition,
NRIC's Capital Expenditure Study includes a frost index developed from
the SSURGO data, but this information is not available for all areas in
the STATSGO2 database. Several commenters discuss the need for such a
frost index. As a proxy for this information, Bureau staff developed a
climate variable based on the average annual minimum temperature from
the U.S. Department of Agriculture's hardiness index.
17. The Bureau also agrees with commenters who emphasized that
carriers serving particular areas such as Alaska, Tribal lands, and
national parks could face unique challenges. In particular, some
commenters suggest that it is more costly to provide service on Tribal
lands; the methodology now includes an additional independent variable
for the percentage of each study area that is a federally-recognized
Tribal land. In addition, Alaskan commenters argued that Alaska is
unique because of its harsh climate and other factors; accordingly, the
methodology now includes a variable indicating whether or not the study
area is in Alaska. Some commenters also argued that it is more
difficult to construct and maintain networks in national parks; the
methodology also now includes an additional independent variable for
the percentage of each study area that lies within a national park. (In
the future, if sufficient data become available, the Bureau may
consider including a variable that would account for all federal lands
(i.e., that is not limited to national park lands).) NRIC's Operating
Expenses Study found that operating expenses were correlated with
regions, and Bureau staff tested variables for the four census-based
regions: Western, Midwest, Northeast and South. The revised methodology
also includes the two that were significant: the Midwest and Northeast.
D. Use of Boundary Data
18. All geographic independent variables were rolled up to the
study area using Tele Atlas wire center data, which is a widely-used
commercially available comprehensive source for this information.
Several commenters question the accuracy of those boundaries. For
example, the Rural Associations point to a NECA study that concluded
many of the Tele Atlas boundaries ``differ quite significantly from
actual boundaries.'' In addition, some companies that argue that their
boundaries, and in particular the resulting measure of square miles in
their service territories, were inaccurate in the proposed methodology
have asked how they could correct errors in the data.
19. The only comprehensive set of wire center boundaries are those
commercially available from companies such as Tele Atlas and
GeoResults. There is precedent for using Tele Atlas' (or a predecessor
company's) boundaries. In particular, the Commission's hybrid cost
proxy model uses a customer location data set that was created using an
earlier version of the Tele Atlas boundaries.
20. The Bureau declines to adopt NRIC's proposal that study area
boundaries be modified before implementing the regression methodology
based on publicly available state maps. While many states have study
area maps available on-line, the vast majority of those maps will not
allow Commission staff to calculate the information required for the
analysis adopted today. Variables like road miles and those related to
local soil conditions require having GIS-based boundaries that can be
overlaid with other GIS-based data sets (like road networks and
databases of soil conditions). It is not practical to derive such
information from printed maps, images on Web sites or PDF files with
any accuracy. In addition, it is not clear whether state maps represent
authoritative boundaries. Therefore, the Bureau does not believe that
the proposal by NRIC is a practical means to derive more reliable study
area boundary information quickly.
21. Nevertheless, the Bureau recognizes concerns remain regarding
inaccuracies in this data set, and the Bureau adopts a two-part process
to address these concerns. First, in the near term, the Commission will
provide a streamlined, expedited waiver process for carriers affected
by the benchmarks to correct any errors in their study area boundaries.
Second, to correct any remaining inaccuracies in the Tele Atlas data
set, the Bureau will issue a Public Notice to initiate the process of
collecting study area boundaries directly from all rate-of-return
carriers. The Public Notice will seek comment on data specifications
for a data request that the Bureau would issue after receiving input
from the public and interested parties. The Bureau expects that it will
have updated boundary data before the Bureau reruns the regression to
calculate capex and opex limits that will be used for calculating
support for 2014, at which time the limits will apply in full.
22. In light of the protections the Bureau adopts to address errors
in the Tele Atlas data, the Bureau declines to delay implementation of
the benchmarks beyond the 18-month phase-in described below. The
Commission anticipated that ``HCLS benchmarks will be implemented for
support calculations beginning July 2012.'' In many cases, more
accurate boundaries would not change whether or not a particular
company is capped or not by the benchmark methodology. And the
streamlined, expedited waiver process the Bureau adopts to correct
boundaries in the near-term will address those specific instances where
an inaccurate boundary could result in a company losing more support
than it would otherwise. Consistent with existing practice, if such a
waiver request is granted and a true-up is required, a carrier' support
amounts will be trued-up back to July 1, 2012.
23. Specifically, any carrier whose actual boundaries are different
from the boundaries used by the Bureau in the methodology adopted today
may file a petition for waiver in accordance with Sec. 1.3 of the
Commission's rules. To enable the Bureau to determine whether there are
special circumstances (i.e., inaccurate boundaries) supporting a
waiver, petitioners must provide accurate boundary information in a
manner and format that Bureau staff can readily evaluate and process.
In Appendix C (http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0425/DA-12-646A1.pdf), the Bureau sets forth a template
for filing study area maps to help potential petitioners file
information efficiently, accurately, and in a manner that will permit
the Bureau to evaluate and process the information expeditiously.
24. While potential petitioners may choose to submit boundary
information in other formats, the Bureau cautions
[[Page 30415]]
that information submitted in other formats may require additional
processing, and that the processing could introduce errors and/or
delay. For example, if petitioners file hard copy maps, those would
need to be rectified (stretched) to have a spatial reference, and
digitized by Bureau staff. Accordingly, petitioners that do not wish to
use the Bureau's template may wish to consult with Bureau staff in
advance of filing boundary information in alternate formats to ensure
that the information submitted can be processed quickly.
25. Regardless of how the boundary information is filed, an officer
of the company must certify under penalty of perjury that the
information provided is accurate. The Bureau also emphasizes that
carriers using this waiver process solely to seek changes to their
study area boundaries used in the benchmark methodology are not
required to file the financial data and other information required for
waivers as set forth in the USF/ICC Transformation Order. The financial
data and other information set forth in the USF/ICC Transformation
Order is relevant for petitions for waiver alleging that ``reductions
in current support levels would threaten [a carrier's] financial
viability, imperiling service to consumers in the areas they serve.''
In contrast, when considering whether there are special circumstances
and the public interest is served by granting a waiver of the benchmark
methodology, the Bureau will be focusing on ensuring that accurate data
is used to perform the necessary computations, regardless of the extent
of support reduction. In addition, carriers using this streamlined,
expedited waiver process to make technical corrections to their study
area boundaries need not pay the filing fee associated with requests
for waiver of Part 36 separations rules. With the safeguard provided by
this streamlined, expedited waiver process, the Bureau concludes it is
appropriate to use the Tele Atlas boundaries on an interim basis.
E. Use of Quantile Regression and the 90th Percentile Cost Threshold
26. As discussed in the technical appendix, the Bureau concludes
that quantile regression analysis is the appropriate methodology to use
to identify study areas that have capex and opex costs that are much
higher than those of their similarly situated peers and to cap their
cost recovery at amounts that are no higher than the vast majority of
similarly situated study areas. The Bureau also concludes that it
should set the regression-derived limits at the 90th percentile of
costs for capex and opex compared to similarly situated companies.
27. Some commenters criticized the use of the 90th percentile,
arguing that it was unreasonable because approximately forty percent of
study areas in the methodology proposed in the FNPRM would have been
subject to limits in one or more of the eleven cost categories used in
that analysis. On further consideration, the Bureau has concluded that
the proposed methodology was over-inclusive because a carrier that
exceeded the cap in only one category, but had costs well below the
caps in the other ten, would have received reduced support. As
discussed above, however, the Bureau is adopting a revised methodology
that relies on aggregated capex and opex caps. Applying the revised
methodology with a 90th percentile cap limits reimbursable costs for
only fifteen percent of the study areas of cost companies. The net
effect is fewer study areas will see reduced support, and more
companies will see additional support, due to the distribution of
support among HCLS recipients.
28. Accordingly, the Bureau does not agree with commenters who
argue that the methodology should limit at most those carriers with
costs above the 95th percentile. Indeed, the Bureau notes that using
the 90th percentile with the modifications adopted today leads to
approximately the same number of study areas with capped costs as would
have been the case if the 95th percentile were used with the Appendix H
methodology. The Bureau concludes that using the 90th percentile as
part of the revised methodology appropriately balances the Commission's
twin goals of providing better incentives for carriers to invest
prudently and operate more efficiently, and providing additional
support to further advance broadband deployment. By providing
additional, redistributed HCLS to carriers that do not have the highest
costs among similarly situated companies, the budget for high-cost
support should enable more broadband deployment than continued funding
of more of the highest cost companies at current levels.
29. In view of the fact that many carriers will receive additional,
redistributed HCLS, the Bureau takes this opportunity to emphasize the
obligations that attach to the additional funding. Section 254(e) of
the Act requires that this additional funding--like all federal
universal service support--be used ``only for the provision,
maintenance, and upgrading of facilities and services for which the
support is intended.'' Consistent with the USF/ICC Transformation
Order, the overarching intent is to preserve and advance the
availability of modern networks capable of delivering broadband and
voice telephony service. Indeed, all rate-of-return carriers are
required to provide broadband upon reasonable request beginning July 1,
2012, as a condition of receiving federal high-cost universal service
support. Carriers must use their high-cost universal service support--
including any additional funding--in compliance with these
requirements.
30. The Bureau further notes that all rate-of-return carriers will
be required to file a new build-out plan, which accounts for the new
broadband obligations, in 2013. Those plans must be updated annually to
reflect progress on network improvements and build-out, which should
reflect the impact of high-cost universal service support, including
any additional funding. The Commission will be reviewing those plans
and updates, as well as other information provided in the annual Sec.
54.313 reports, to ensure that carriers are complying with their public
interest obligations, including their build-out requirements. Further,
the progress report on those plans will be part of the factual basis
that supports the annual Sec. 54.314 certification by the states or
carriers that support is being used for the intended purposes.
F. Other Issues
31. Retroactivity. The Bureau disagrees with commenters who assert
that applying the benchmarks to limit HCLS payments constitutes
retroactive rulemaking. A rule does not operate retroactively merely
because it is ``applied in a case arising from conduct antedating [its]
enactment'' or ``upsets expectations based on prior law.'' Rather, a
rule operates retroactively if it ``takes away or impairs vested rights
acquired under existing law, or creates a new obligation, imposes a new
duty, or attaches a new disability in respect to transactions or
considerations already past.''
32. Here, it cannot fairly be said that the application of these
benchmarks will take away or impair a vested right, create a new
obligation, impose a new duty, or attach a new disability in respect to
the carriers' previous expenditures. There is no statutory provision or
Commission rule that provides companies with a vested right to continue
to receive support at particular levels or through the use of a
particular methodology. Although application of the benchmarks may
affect the amount of support a carrier receives for expenditures made
in 2010
[[Page 30416]]
(or before), it does not change the legal landscape in which those
expenditures were made. Rather, as the Commission observed in the USF/
ICC Transformation Order, ``section 254 directs the Commission to
provide support that is sufficient to achieve universal service goals,
[but] that obligation does not create any entitlement or expectation
that ETCs will receive any particular level of support or even any
support at all.''
33. Indeed, consistent with the Commission's focus on service to
consumers, the Commission declined to provide any group of companies
with a blanket exception from universal service reforms for past
investments, recognizing that the current rules were not efficiently
serving universal service goals. Providing such exceptions would have
made it impossible to reform the system over any reasonable time
period. Instead, the Commission established an avenue for companies to
demonstrate a need for temporary and/or partial relief from the new
rules to ensure its customers do not lose service. Moreover, the
decision to phase in the application of the limits over 18 months
provides a greater opportunity for carriers to make any necessary
adjustments.
34. Critically, the revised methodology now includes an independent
variable that captures age of plant, further addressing
``retroactivity'' concerns with respect to capex. Adding this variable
raises the cost limits for carriers that have invested recently, by
allowing their costs to be judged relative to a peer group of other
carriers that have also invested recently. The Bureau also notes that
application of the limits to operating expenses clearly presents no
``retroactivity'' concerns.
35. Predictability and Sufficiency. The Bureau also rejects the
argument that implementing these benchmarks will undermine the
predictability or sufficiency of support. At the outset, the Bureau
notes that this general argument effectively seeks reconsideration of
the Commission's policy judgment to adopt a rule imposing limits on
capex and opex in the first instance, which is beyond the scope of this
order to implement a methodology as directed by the Commission. As the
Commission explained in the USF/ICC Transformation Order, the HCLS
mechanism operates in fundamentally the same way with or without the
benchmarks. In both cases, a certain amount of unpredictability exists
because a carrier's support depends in part on a national average that
changes from year to year, and companies ``can only estimate whether
their expenditures will be reimbursed through HCLS.'' Moreover, as the
Commission has suggested, if anything, support will now be more
predictable for most carriers because the new rule discourages
companies from exhausting the fund by over-spending relative to their
peers. The addition of several new independent variables that capture
attributes that do not change over time (e.g., depth of bedrock, soils
difficulty, the percentage of study area that is a federally-recognized
Tribal land, the percentage of each study area that lies within a
national park, whether the study area is in the Midwest, Northeast, or
Alaska) also improves the predictability of support. In addition, as
described below, the same regression coefficients will be used for
capex and opex in 2013 as those calculated for 2012, which will provide
more certainty as the application of the limits is phased in.
Accordingly, commenters' concerns that support amounts will fluctuate
radically from year to year are speculative and unpersuasive.
36. As for sufficiency, the very purpose of the benchmarks is to
ensure that carriers as a whole receive a sufficient (but not
excessive) amount of HCLS, which is one component of high-cost support.
As discussed above, the methodology compares carriers' costs to those
of similarly situated carriers and reduces HCLS only to the extent that
a carrier over-spends relative to its peers. Moreover, excess support
is redistributed to carriers that otherwise may be at risk of losing
HCLS altogether, and may not otherwise be well-positioned to further
advance broadband deployment. Thus, the application of benchmarks is
not only consistent with the Commission's interpretation of
``sufficient'' as requiring that the fund remain ``sustainable,'' which
the DC Circuit found to be a reasonable interpretation in Rural
Cellular Association v. FCC, but it also complies with the stated
intent of section 254 that the Commission's universal service
mechanisms should preserve and advance universal service.
G. Implementation
37. The limits on costs eligible for reimbursement though HCLS will
be implemented beginning July 1, 2012, but support amounts will not be
reduced immediately by the full amount as calculated using the
benchmarks. Instead, support will be reduced beginning July 1, 2012 and
until December 31, 2012 by twenty-five percent of the difference
between the support calculated using the study area's cost per loop as
reported by NECA and the support as limited by the benchmarks, however,
the reduction shall not be greater than ten percent of the study area's
HCLS support based on the cost data filed with NECA. Beginning January
1, 2013 and until December 31, 2013, support will be reduced by fifty
percent of the difference between the support calculated using the
study area's cost per loop as reported by NECA in October 2012 and the
support as limited by the benchmarks in effect for 2013. Beginning
January 1, 2014, when the Bureau expects to have updated wire center
boundaries, as discussed above, the regression coefficients will be
updated and the cost data submitted by NECA in October 2013 will be
incorporated, and support will be limited, in full, by the benchmarks
in effect for 2014.
38. By delaying the full impact of the reductions until 2014,
companies who would be adversely affected are provided adequate time to
make adjustments and, if necessary, demonstrate that a waiver is
warranted either to correct inaccurate boundary information and/or ``to
ensure that consumers in the area continue to receive voice service.''
For many companies affected by the benchmarks, the initial twenty-five
percent phase-in reduction is a small percentage of their total HCLS.
For those whose reduction would be more than ten percent of their HCLS
based on NECA cost data, the reduction is limited to ten percent for
the remainder of 2012. Moreover, continuing to limit the impact of
support reductions in 2013 provides an additional opportunity for
carriers to make further adjustments. On balance, the Bureau finds that
this measured transition strikes a reasonable balance between the goals
of promptly making available additional support to those carriers who,
under the new rule, will receive redistributed HCLS to further advance
broadband deployment and providing an adequate amount of time for
carriers that will experience reductions in support to make
adjustments.
39. The Bureau also take steps to provide more certainty regarding
the operation of the limits on capex and opex. In particular, to
provide carriers with more certainty regarding the impact of the fifty
percent phase-in in 2013, the same regression coefficients for capex
and opex will be used in 2013 as those calculated for 2012, which
enables carriers to estimate their 2013 support now. That is, the
regressions will not be updated, but individual study area caps will be
recalculated
[[Page 30417]]
based on the 2011 cost data filed with NECA, which will be submitted to
the Commission in NECA's annual filing in October 2012. This will allow
higher caps for those study areas with significant network investment
in 2011. By taking into account the 2011 cost data filed with NECA,
study areas that may not have qualified for HCLS based on their costs
in prior years may be eligible to qualify for HCLS in 2013, thereby
providing those study areas with additional support for broadband
investment. In addition, study areas whose costs drop below their
computed benchmark for 2013 no longer will be considered capped, and
therefore will receive support based on their own actual costs and will
be eligible to receive redistributed support like other uncapped study
areas.
III. Procedural Matters
A. Paperwork Reduction Act
40. This document does not contain new or modified information
collection requirements 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).
B. Final Regulatory Flexibility Act Certification
41. Final Regulatory Flexibility Certification. The Regulatory
Flexibility Act of 1980, as amended (RFA) requires that a regulatory
flexibility analysis be prepared for rulemaking proceedings, unless the
agency certifies that ``the rule will not have a significant economic
impact on a substantial number of small entities.'' The RFA generally
defines ``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 Small Business
Administration (SBA).
42. This Order implements, but does not otherwise modify, the rule
adopted by the Commission in USF/ICC Transformation Order. These
clarifications do not create any burdens, benefits, or requirements
that were not addressed by the Final Regulatory Flexibility Analysis
attached to USF/ICC Transformation Order. Therefore, the Commission
certifies that the requirements of this order will not have a
significant economic impact on a substantial number of small entities.
The Commission will send a copy of the order including a copy of this
final certification, in a report to Congress pursuant to the Small
Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C.
801(a)(1)(A). In addition, the order and this certification will be
sent to the Chief Counsel for Advocacy of the Small Business
Administration, and will be published in the Federal Register. See 5
U.S.C. 605(b).
C. Congressional Review Act
43. The Commission will send a copy of this order to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act.
D. Data Quality Act
44. The Commission certifies that it has complied with the Office
of Management and Budget Final Information Quality Bulletin for Peer
Review, 70 FR 2664 (2005), and the Data Quality Act, Public Law 106-554
(2001), codified at 44 U.S.C. 3516 note, with regard to its reliance on
influential scientific information in the Report and Order in GN Docket
No. 09-191 and WC Docket No. 07-52.
IV. Modeling Limits on Reimbursable Operating and Capital Costs
45. Overview. This appendix describes a methodology for determining
carrier-specific limits on High Cost Loop Support (HCLS) payments to
rate-of-return cost carriers with very high capital expenses (capex)
and operating expenses (opex) relative to their similarly situated
peers. Building on the record received in response to the USF/ICC
Transformation FNPRM, and the comments of two peer reviewers, the
methodology adopted today refines the HCLS calculation algorithm
proposed in the FNPRM. This appendix describes both the econometric
process used to establish carrier-specific limits to HCLS payments for
rate-of-return cost companies and the implementation process.
46. The methodology described herein provides a detailed and
implementable mechanism for examining all rural rate-of-return cost
study areas and limiting HCLS payments in those study areas that have
costs higher than the vast majority of their similarly-situated peers.
The Bureau uses data from all the rural rate-of-return cost carriers.
The Bureau uses quantile regression for parameter estimation rather
than ordinary least squares for reasons set forth below. The most
significant change in methodology from that described in the FNPRM is
that this analysis creates two caps, one each on capex and opex, rather
than capping eleven different NECA algorithm steps. Because this
methodology builds upon NECA's existing algorithm for calculating
average loop costs, the revised methodology can be implemented quickly
and simply.
47. Background. Today, cost companies eligible for HCLS file with
NECA annual detailed cost data, pursuant to Part 36, at the study area
level reporting their costs in many different cost categories. The cost
categories are then fed into NECA's 26-step Cost Company Loop Cost
Algorithm. The early algorithm steps calculate intermediate values
(based on the reported cost categories) and feed into the later
algorithm steps. Algorithm step 25, which calculates the carrier's
total unseparated cost for that study area, sums several of the
preceding algorithm steps and then feeds into algorithm step 26, which
computes the carrier's total unseparated cost per-loop for that study
area by dividing the value for algorithm step 25 by the number loops in
the study area. HCLS for each study area is then calculated by the
Expense Adjustment Algorithm. This algorithm ultimately determines HCLS
payments based on a study area's cost per-loop compared to the
nationwide average cost per-loop.
48. Methodology for Imposing Limits. Appendix H of the FNPRM
proposed to create 11 caps (four capex caps and seven opex caps).
Several commenters argued that the Bureau should reduce the number of
caps because efficient carriers might limit their total expenditures by
spending a large amount in one cost category to avoid spending even
more money in other categories. Additionally, some commenters and one
of the peer reviewers suggested the use of a single cap, that is, a
single dependent variable in the cost regressions, noting that the 90th
percentile of total cost is not the sum of the 90th percentiles of cost
components.
49. For the reasons described in the HCLS Benchmarks Implementation
Order, the Bureau concludes that using two caps, one for capex and one
for opex, provides the appropriate balance between identifying
unusually high costs and providing carriers operational flexibility.
[[Page 30418]]
50. To implement this revised framework, the updated methodology
separates algorithm step 25 (Total Unseparated Costs) into total capex
and total opex cost components. The current algorithm step 25 sums
algorithm steps 13 through 24. As a result of the updated methodology,
capex components are now summed into algorithm step 25A and opex
components are summed into algorithm step 25B. Consistent with the
methodology proposed in Appendix H, a company whose actual costs for
algorithm step 25A or algorithm step 25B are above the 90th percentile
for that cost, compared to similarly situated companies, would be
limited to recovering amounts that correspond to the 90th percentile of
capex or opex costs, i.e. the costs that ninety percent of similarly
situated companies would be estimated to have by the regression
equation. Algorithm step 25C becomes the new Total Unseparated Costs by
summing algorithm steps 25A and 25B. It then feeds into algorithm step
26 (Study Area Cost per Loop) and the subsequent Expense Adjustment
Algorithm as before. The Bureau identifies the capex and opex
components below.
51. Use of Quantile Regression. As proposed in the FNPRM, the
Bureau uses quantile regression to estimate the caps for the capex and
opex cost components. The goal of the regression methodology is to
identify study areas that have capex and opex costs that are much
higher than their similarly-situated peers and to cap their cost
recovery at amounts that are no higher than the vast majority of
similarly-situated study areas. Quantile regression allows us to
directly estimate the 90th percentile costs for study areas with given
characteristics. The critical values become the capex and opex caps.
52. The Bureau concludes that quantile regression is preferable to
ordinary least squares for this application. Ordinary least squares
regression cannot be used to identify the proper critical values in the
tail of the cost distribution without making strong assumptions about
the nature of the cost distribution, in particular, that error terms
are Gaussian (normally distributed) and homoscedastic. In contrast,
quantile regression requires no assumptions about the error terms. This
is important because the error terms of the ordinary least squares
regressions for capex and opex are both heteroscedastic and non-normal.
While methods exist to estimate corrections for heteroscedasticity and
non-normal error terms in ordinary least squares regression, these
would require additional computational steps without improving the
precision of the quantile estimate.
53. Quantile regression is also more resistant to the presence of
outliers than ordinary least squares, which can produce biased
parameter estimates when outliers are present. Thus, quantile
regression parameter estimates are more stable than ordinary least
squares parameter estimates if the data include outliers. And although
ordinary least squares has methods available for dealing with outliers,
such as excluding them from the analysis or using dummy variables,
these methods generally require an exercise of judgment to identify
outliers. Quantile regression largely avoids the need to make such
determinations.
54. Another significant advantage of quantile regression is that it
allows the independent variables to have different effects on the
dependent variable in the different quantiles. Thus, for example, as
the percentage of a study area that is national parkland increases
(holding everything else constant), the size of the study area's cost
increase could differ based on where it falls in the cost distribution
of similarly-situated study areas (which quantile it is in). This is
not allowed in ordinary least squares, which assumes that the marginal
effect is the same on all study areas. Given that the Bureau is
examining study areas with high costs relative to other study areas
conditioned on the independent variables used in the design, this is a
helpful property.
55. Use of the Log-Log Specification. As proposed in the FNPRM, the
Bureau uses the log-log specification, and therefore take the natural
log of the variables most sensitive to scale effects. For the dependent
variables, the capex regression uses the natural log of capex, and the
opex regression uses the natural log of opex. The Bureau also uses the
natural logs of all independent variables used in the methodology
except those that are dummy variables, a pure index, or a percentage
(namely, Climate, Difficulty, PctTribalLand, PctPark, Alaska, MW, and
NE).
56. Some commenters and a peer reviewer argued that the Commission
failed to demonstrate the need for taking the natural logs for both the
dependent and independent variables. Additionally, a commenter argued
that doing so was appropriate when the dependent variable is known to
have a multiplicative relationship, and therefore the regressions
should use the variables in levels (i.e., that the Bureau should not
take the natural log of the variables) or that the Bureau should
examine cost per loop. Another commenter, as well as both peer
reviewers, noted that the manner in which zeros are dealt with, even
when using quantile regression, can affect the results.
57. Because the Bureau's econometric specification is a reduced
form, taking the logs of both the dependent and independent variables
is acceptable so long as the resulting relationship is linear. The
Bureau disagrees with commenters who suggested that the variables
should be left in levels. Figure 1 shows that the scatter plot of (the
level of) opex versus (the level of) the number of loops is not
obviously linear. In contrast, Figure 2 displays the scatter plot of
the natural log of opex versus the natural log of loops, and shows that
the relationship is linear. Further, in a simple ordinary least squares
regression of opex on the number of loops and the natural log of the
number of loops, both variables are significant. This indicates that
the relationship between opex and loops is nonlinear.
58. Further, some commenters argued that the Bureau should predict
costs per loop and that if this were taken approach, density would
become an important independent variable. Figure 3 shows that opex per
loop as a function of density is nonlinear. In contrast, Figure 4 shows
that the relationship between the natural log of opex and density is
linear. Similarly, the graph of capex versus road miles does not appear
to be linear, but natural log of capex versus the natural log of road
miles does. The Bureau thus concludes that the log transformation of
the dependent and independent variables that are scale sensitive is the
appropriate specification.
59. Finally, the reduction in the number of regressions in the
final methodology eliminates the problem of taking the natural log of
zero in the dependent variable. Because the final methodology uses two
regressions rather than eleven, the values of the dependent variables
are never less than or equal to zero, as was the case for many of the
values in the algorithm step 8 regression as originally proposed in the
FNPRM. Further, none of the independent variables that the Bureau uses
have zero values.
60. Fit of the Regression Model. Some commenters argued that the
regressions in the proposed methodology suffered from low pseudo R-
square values, and therefore the proposed methodology should be
abandoned. Another commenter asserted that alternative models (i.e.,
those that were based on levels or on cost per loop) were superior to
the proposed model because the
[[Page 30419]]
R-square values were higher when using levels or cost per loop.
61. The Bureau concludes that the revised methodology offers
sufficient predictive power. Although the pseudo R-square values in the
proposed methodology ranged from 0.2745 to 0.5863, the pseudo R-square
values in the revised methodology are .6684 for capex and 0.6234 for
opex. The Bureau concludes that the final specification has sufficient
predictive power to provide a reliable method for setting reasonable
limits on carriers' costs. The Bureau also notes that because the
dependent variables are different, and because the Bureau is performing
quantile regression rather than ordinary least squares regression--the
method proposed by NRIC--the Bureau cannot directly compare the pseudo
R-square values from the methodology the Bureau uses to the R-square
values from commenters' alternative specifications.
62. Elimination of Independent Variables From Specification. If a
variable is significant in either the capex or opex regression, the
variable is included it in both regressions. The Bureau is cognizant of
Dr. Koenker's comments that in quantile regression (as in ordinary
least squares regression), the inclusion of non-significant variables
can inflate the variance of the prediction (yet leave the prediction
unbiased). Nevertheless, the Bureau keeps variables that are
significant in either regression in both regressions because they can
have offsetting effects in the regressions. For example, a carrier
facing close-to-the-surface bedrock (which would make trenching more
difficult than usual) may find it efficient to use an aerial solution
rather than to trench through bedrock. The presence of close-to-the-
surface bedrock could then lower the carrier's capex cost but raise its
opex cost because cables on poles may be more costly to maintain. Thus,
bedrock could raise that carrier's opex costs but could plausibly lower
that carrier's capex expenditures. If the Bureau omitted bedrock from
the capex regression, the Bureau could be biasing the coefficient
values in the regression and therefore biasing the predicted 90th
percentile values for capex.
63. Further, the Bureau notes that unlike the regressions in the
proposed methodology, the vast majority of the variables in the updated
methodology's regressions are significant in both regressions. The
Bureau also notes that adding statistically insignificant variables to
the regressions do not bias the Bureau's predictions. In light of all
these considerations, the Bureau therefore believes it is better to
include variables that are significant in either of the regressions in
both.
64. In its Updated Opex Study, NRIC suggests creating a cap that
uses not just the regression coefficients, but also adds a standard
deviation to each regression coefficient. The Bureau declines to do so
here. Adding the estimated standard error to the parameter estimates is
a non-standard way of creating a confidence interval in the context of
quantile regression. In contrast, using the regression quantiles
methodology gives a direct unbiased estimate of the 90th percentile
predictions for capex and opex.
65. Use of Census Block Centroids. Consistent with the methodology
set forth in the FNPRM, the Bureau determines which census blocks are
in each study area by using the census blocks' centroids. This enables
us to generate certain demographic variables for each study area, such
as the number of housing units in a study area. Because study area
boundaries do not always coincide with census block boundaries, some
census blocks will fall into two different study areas. Where a census
block's centroid falls inside the study area boundary, the Bureau
associates that block with that study area, and if a census block's
centroid falls outside of the study area boundary, the Bureau does not.
66. Some commenters suggested that associating census blocks with
study areas based on the census block's centroid can distort population
and/or housing unit counts. While NRIC argues that such errors do not
necessarily cancel each other out, they did not have a material impact
on the cost caps in the case of Nebraska. The Bureau concludes that its
approach is reasonable. The Bureau could split census blocks that cross
study area boundaries into pieces and then assume that end-user
locations are spread evenly within census blocks so that housing units
are proportionately attributed to study areas. This would increase
computational complexity but not necessarily accuracy because end-user
locations are not uniformly distributed within census blocks. The
Bureau further notes that the vast majority of study areas have many
blocks and therefore such errors would tend to cancel each other out.
Of the 726 study areas covered by the updated methodology have 1.1
million census blocks in them, so on average, each study area has about
1,567 census blocks. The smallest number of census blocks in a study
area is 26, the 5th percentile is 132, and the 10th percentile is 187.
Therefore, the vast majority of study areas would not be affected by
this issue. Also, there is only one variable that uses the number of
housing units (which is derived from the census blocks in the
analysis), the natural log of density (see LnDensity below), so the
effect of any error should be small.
67. Dependent Variables. As described above, the dependent
variables in the regressions are the natural log of the capex
components and the natural log of opex components of algorithm step 25.
Below the Bureau defines capex and opex, but in short, the Bureau
assigns all the constituent parts of algorithm step 25, which
calculates the carrier's total unseparated cost for that study area, to
either capex or opex. Because the Bureau is now aggregating capex costs
into a single capex variable, and operational costs into an opex
variable, variations in individual capex and opex components are
smoothed. This allows us to include data on all elements of capex and
opex while still achieving good regression fits.
68. For the purpose of the updated methodology that adopted today,
the Bureau defines capex to be the plant-related costs in the current
algorithm step 25. The Bureau thus includes the return to capital
components, which are algorithm step 23 and algorithm step 24. The
Bureau also includes depreciation in capex (algorithm step 17 and
algorithm step 18). Although accounting textbooks typically define
depreciation as an operating expense, they do so because firms need to
recognize a periodic charge against earnings to expense the declining
value of assets over the estimated life of the assets. Because
depreciation is inherently tied to the carriers' asset investment
decisions, the Bureau assigns it to capex. Note that in its Opex Study,
NRIC considered depreciation to be sufficiently non-operations-based
that NRIC took depreciation out of opex. Although some commenters urged
that depreciation be excluded from the methodology altogether, the
Bureau disagrees for two reasons. First, depreciation is a valid
measure of plant that goes beyond the measure of net plant that goes
into algorithm steps 23 and 24. Depreciation is a function of not just
the amount of gross plant, but also the useful life of the plant that
is used, a meaningful measure. Second, by including depreciation, the
Bureau includes all the portions of the existing algorithm step 25.
69. For the purpose of the updated methodology, the Bureau defines
opex to be the remaining components of the current algorithm step 25.
The Bureau includes algorithm steps 13 and 14 in opex because they are
maintenance
[[Page 30420]]
expenses. The Bureau also includes algorithm steps 15 and 16 in opex
because they are network expenses. Algorithm step 21 in included in
opex because it is corporate benefits. Discussed below in more detail
are the other algorithm steps included in opex.
70. Algorithm step 19 is corporate operations expense, which is
limited in accordance with Sec. 36.621(a)(4) of the Commission's
recently revised rules. Although this step is already limited by the
updated formula limiting recovery of corporate operations expenses, and
was excluded in the methodology as proposed in the FNPRM, the Bureau
now includes it in opex because the goal of the updated methodology is
to examine opex in its entirety. Algorithm step 19 uses DL535 and
DL550, which are the lesser of the allowable or actual corporate
operations expenses, not the unadjusted corporate operations expenses,
so a study area that is affected by Sec. 36.621(a)(4) is not being
affected twice by the higher-than-allowable amount.
71. The Bureau similarly includes algorithm step 20 (operating
taxes) in opex in the revised methodology. Although the methodology
proposed in Appendix H excluded step 20, after further consideration,
the Bureau concluded that taxes are an expense that must be paid, just
like other operational expenses.
72. Finally, the Bureau includes algorithm step 22 (rents) in opex.
This step was excluded from the proposed methodology in Appendix H
because the regression fit was poor. Because rents can now be included
as a part of opex as a whole as opposed to in its own separate
category, the Bureau includes it in the updated methodology.
73. Independent Variable Specification. The Bureau's reduced-form
regression specification uses as independent variables exogenous
factors that the Bureau believes affect a study area's capex and opex.
These variables fall into the following categories: scale, age of
plant, customer dispersion, and geography. Additionally, the
independent variables the Bureau examined and include in this updated
methodology are those that are currently available to the Commission
and exist for all study areas in the regression analysis.
74. To the extent that the Bureau had the requisite data, staff
also tested other variables that commenters suggested be included.
First the variables the Bureau included in the methodology are
described below, then the variables that the Bureau examined and
ultimately excluded, and finally, the variables that commenters
suggested but that the Bureau could not include in the methodology due
to data issues. All geographic independent variables were rolled up to
the study area using Tele Atlas study area boundary data. The Bureau
did not include inputs to the production process (such as employees) in
the regressions because carriers can choose the amount of these inputs.
In other words, carriers with markedly higher costs than their
similarly situated peers may be using substantially more of these
inputs.
75. Table 1 and Table 2 respectively show descriptive statistics
for and correlations between the variables included in the updated
methodology. The regression results are included in Table 3.
76. Scale. The Bureau uses several variables to measure scale: The
number of loops, road miles, road crossings, and the number of study
areas held under common control in the state. All the scale measures
the Bureau includes in the updated methodology are significant in the
opex regression and all but LnRoadMiles are significant in the capex
regression.
77. Because the number of loops is a direct measure for the scale
of the study area, the Bureau includes the natural log of the number of
loops (LnLoops) in the updated methodology. The Bureau expects that the
amount of plant a carrier must install will be positively correlated
with capex and opex costs because more loops require more investment
and operations cost. LnLoops is statistically significant.
78. The Bureau also includes the natural log of the number of road
miles (LnRoadMiles), which is a proxy for total loop length. Several
commenters argued that some measure of loop length was an important
variable. Although some (but not all) cost carriers may report such
data to the Department of Agriculture's Rural Utilities Service (RUS),
such data are both incomplete and unavailable to the Bureau. The Bureau
agrees with NRIC that cable generally follows roads, so the number of
road miles in a study area should correlate with the cabling required
to serve that area.
79. In its Capital Expenditure Study, NRIC predicted that road
intersections would slow fiber construction and impose other costs and
found that the number of intersections was a significant predictor of
predicted construction costs. The Bureau agrees that the number of such
crossings is another good proxy for scale and therefore included the
natural log of road crossings (LnRoadCrossings).
80. The scale variables (LnRoadMiles) and road crossings
(LnRoadCrossings) are significant in the opex regression, but have the
opposite sign from each other. Only road crossings are significant in
the capex regression.
81. The last scale variable is the number of study areas in the
state that are owned by the same holding company or have common control
in the state (LnStateSACs). The Bureau anticipated that this variable
would be a good predictor of capex and opex costs because some expenses
could be shared among study areas. For capex, study areas that are part
of a larger organization (i.e., the study area has more commonly-owned
study areas in the state) may allow installation crews to be deployed
more efficiently. For opex, study areas that are part of a larger
organization can share various expenses, especially headquarters-
related expenses, which would allow for some specialization among
management employees. The Bureau found LnStateSACs to be significant
for both capex and opex.
82. Age of Plant. Commenters stated that age of plant was an
important variable for two reasons: First, because the cost of recent
capital investments is higher due to inflation and second, because the
return component of capital expenses is calculated on net plant, and
recent investment will be depreciated less fully than old plant. While
the Bureau cannot readily determine the average age of carriers' plant,
the percentage of the plant that has not yet been depreciated
(PctUndepPlant) should be highly correlated with plant age: More
recently installed plant will be less depreciated. Holding all else
constant, the less of a carrier's plant is depreciated (which yields a
higher PctUndepPlant), the higher its capex should be. The intuition
for the effect of PctUndepPlant on opex is ambiguous. The Bureau finds
that this variable is a strong cost predictor for both capex and opex.
83. Customer Dispersion. The Bureau includes three variables that
account for customer dispersion. Many commenters asserted that density
was an important cost predictor, and that their costs are high in part
because of the rural areas they serve. The Bureau therefore expects
that density is negatively correlated with both capex and opex costs.
Density (LnDensity) is the natural log of the following quotient:
number of housing units in the study area divided by the size of the
study area in square miles as reported by the Tele Atlas boundaries.
The Bureau finds that it is significant in both regressions.
84. The Bureau also includes the natural log of the number of
exchanges in the study area as a proxy for customer
[[Page 30421]]
dispersion (LnExchanges). Although the straightforward measure of
density calculates the average customer density within the study area,
the number of exchanges roughly accounts for the number of population
centers within the study area because most population centers will have
their own exchanges. The more population centers (holding other factors
constant), the higher capex and opex costs will be because more cabling
will be required to connect the customers within the study area to each
other, and the farther the employees will need to drive to fix any
troubles. The variable LnExchanges is significant in both regressions.
85. The final customer dispersion variable accounts for the portion
of households in urban clusters or urbanized areas (PctUrban). To the
extent that rural carriers also serve urbanized pockets, the Bureau
would expect their costs to be higher, holding all other variables
(including road miles) constant, because wage rates may be higher near
urbanized areas. The Bureau thus expects PctUrban to be positively
correlated to opex, and it is. PctUrban's effect on capex is less
clear: The labor costs associated with trenching are capitalized, so to
the extent that labor near urban areas is more expensive, the higher
capital costs should be. But capitalized labor is only one of many
costs in capex, so the effect may not be strong. PctUrban is positive
but not significant in the capex regression.
86. Geography. Commenters suggested the inclusion of several
geographically-based variables such as soil type. The Bureau agrees.
When creating many of the indexes for geographic variables, the Bureau
took into account the location of roads within the study area because
cabling generally follows roads. For these variables the Bureau
overlaid road data in the study area with the sources of geographic
information and calculated variables that were either percentages, or
where appropriate, averages.
87. For example, commenters stated that soil type is an important
cost predictor. The Bureau therefore constructed a soil difficulty
index (Difficulty). This index is similar to the index in the NRIC
capex study in which soil types were matched with construction
difficulty values established for the Commission's High Cost Proxy
Model (HCPM), which the Commission used to calculate high-cost support
for non-rural carriers. The STATSGO2 database the Bureau uses lists
more soil types than the original STATSGO database, however, so there
are many soil types in the STATSGO2 database for which there are no
construction difficulty values from the HCPM. NRIC tried several
options, but settled on assuming the soil difficulty level to be 1 (the
lowest level of difficulty) for those soil types not found in the
table. The Bureau's soil difficulty index builds on the NRIC
methodology. When faced with soil types that do not appear on the
original HCPM list, the Bureau interpolates the difficulty rating based
on similar soil types in the HCPM list. The Bureau manually associates
unmatched soil types from the STATSGO2 data with similar soil texture
in the original HCPM table, and used the difficulty rating of the
similar soil types in the HCPM list for the new soil type in the
STATSGO2 database. The new extended table associates a difficulty
rating for all soil types in the STATSGO2 database. The Bureau then
calculated the average soil construction value along the roads in each
study area.
88. The Bureau finds soil difficulty to be a statistically
significant predictor in opex. Although NRIC found that soil difficulty
was a significant predictor of construction costs, Difficulty is
positive in capex, but not significant. Although the Bureau also
expected soil difficulty to be positive in the capex regression, an
alternative hypothesis is that in locations where trenching is
unusually expensive, an efficient carrier may install aerial plant (use
poles rather than trench). This would involve lower capital costs than
trenching, but higher future operations costs. Thus, it is plausible
that in the presence of difficult-to-trench soils, carriers experience
no obvious change in capex or, in some circumstances possibly even
reduced capex costs.
89. Because NRIC suggested that the methodology account for close-
to-the-surface bedrock, the Bureau calculated the percentage of road
miles within each study area where bedrock was within 36 inches of the
surface (PctBedrock36). The NRIC capex study found that predicted
construction costs were positively associated with close-to-the-surface
bedrock, so the Bureau might expect that the coefficient on
PctBedrock36 should be positive in the capex regression.
90. The Bureau finds that close-to-the-surface bedrock is
significant in the opex regression, but that it is not significant in
the capex regression. This result could occur for the same reasons as
for soil construction difficulty above or because the construction
difficulty of bedrock has already been captured by the soil difficulty
variable.
91. Pointing to the NRIC Capex study, which suggested that
construction costs are higher in areas where the ground is frozen more
often, several commenters argued that the regressions should include a
frost index. The frost index in the NRIC capex study uses of the number
of frost-free days from the SSURGO data. Unfortunately, this
information is not available for all areas in the STATSGO2 database.
The Bureau believes that the USDA's hardiness index is a useful proxy
for this information, and the Bureau uses it to create a simple index
called Climate that is based on the average annual minimum temperature.
The lower the minimum temperature, the more days the ground is likely
to be frozen. The higher the index, the more frost-free days the study
area would have. Based on the comments in the record, the Bureau
expected this variable to be negatively correlated with capex (the
higher the index, the more frost-free days the area should have, so
construction costs should be lower).
92. The Climate variable (Climate) is positive and has low p-values
in the regressions, which means that it is unlikely to be a spurious
result. However, it is positively correlated with capex and opex.
93. Commenters also stated that it is more difficult to construct
and maintain networks on tribal lands and in national parks because of
permitting and similar issues, so the Bureau includes two additional
variables: (1) The percentage of each study area that is a federally-
recognized Tribal land (PctTribalLand), and (2) the percentage of each
study area that lies within a national park (PctParkLand).
94. The coefficient for the percentage of the study area that is
tribal land (PctTribalLand) is positive for both capex and opex
regressions, but is significant in only the opex regression. The
percentage of the study area that is national park land (PctParkLand)
is positive and significant in both regressions. As can be seen in
Table 1, most of the study areas do not contain either tribal or
national park land, and it may be a simple lack of data that causes a
lack of significance for PctTribalLand in the capex regression.
Nonetheless, the Bureau agrees that both capex and opex costs could be
higher in the presence of these factors, so the Bureau includes them in
the model.
95. Finally, based on comments in the record that certain areas of
the country face unique circumstances, the Bureau tested several
regional variables. Alaskan commenters suggested that Alaska was unique
because of its harsh climate and other factors. The Bureau therefore
added the dummy variable Alaska to the regressions, which equals
[[Page 30422]]
1 for the 17 study areas in Alaska and zero elsewhere.
96. The Bureau also includes regional dummies because in its
Original Opex study NRIC found that opex costs were correlated with
regions. Although NRIC did not include region dummy variables in the
regression, instead opting to use 2005 median home value, which it also
used in its Updated Opex Study, the Bureau includes region in the
updated methodology. The Bureau tested the four census-based regions:
Western (West), Midwest (Midwest), Northeast (Northeast) and South
(South). The Bureau found that Midwest and Northeast were each
significant in at least one regression, so the updated methodology
includes them.
97. Use of Soil Database Information. The Bureau's source for soil
data is the U.S. General Soil Map (STATSGO2) soils database. The Bureau
selected STATSGO2 as a data source because it provides data for the
entire country. The Soil Survey Geographic Database (SSURGO) soils data
from the Natural Resource Conservation Service (NRCS) that the Nebraska
Rural Independent Companies capex study used to generate soil, frost
and wetland variables is an attractive database because it contains a
richer set of soil variables and contains data at a smaller granular
area than the STATSGO2 database. Unfortunately, as can be seen from the
graph on page 23 of the NRIC comments, not only do the SSURGO data not
cover Guam or American Samoa, and much of Alaska, but there are also
numerous other holes in the data in many states. Thus, there are many
study areas in Alaska where there is no SSURGO data and even some
conterminous United States study areas such as the West Kentucky Rural
Telephone Coop (Study Area Code 260421) where there is virtually no
SSURGO spatial data. The Bureau therefore could not apply the results
of a SSURGO-based model to these companies because the needed data
would be missing. The Bureau concludes, therefore, that it is not
practical to use the SSURGO data at this time.
98. Two commenters argue that the Bureau should use the SSURGO data
for study areas covered by it and use STATSGO2 for the remaining study
areas. The Bureau has concerns about this approach for several reasons,
and ultimately declines to do so. In particular, the commenters'
proposed approach would mean that those study areas for which the
SSURGO data are not universally available would be treated
inconsistently with those for which the SSURGO are universally
available. In addition, it would be challenging to combine the two data
sets for those study areas where the Bureau has only some SSURGO data.
Given these problems, the Bureau concludes that the implementation and
fairness benefits of a nationally uniform approach based on STATS2GO
outweigh the benefits of using SSURGO data for a subset of areas.
Discussed below are the elements of the STATSGO2 data the Bureau uses.
99. Independent Variables Tested But Not Used in the Model. Based
on commenters' suggestions and the analysis proposed in Appendix H, the
Bureau tested several additional variables that were ultimately
excluded from the final model because they were not significant for
either capex or opex.
100. In its Capex Study, NRIC found that rain frequency increased
construction cost per household. Following NRIC's model, the Bureau
used the Samson weather station data, and for each study area,
calculated the average number of days per year with greater than 0.5
inches of rainfall (DaysAbvPt5). The Bureau found DaysAbvPt5 was not
significant in either regression.
101. The Bureau also tested the average slope in study areas
(slope) using data in the STATSGO2 database. The Bureau's hypothesis
was that the steeper the slope, the more difficult it would be to build
and maintain cabling. The coefficient on slope was insignificant (i.e.,
statistically indistinguishable from zero) in both regressions and
therefore dropped from the model.
102. The Bureau similarly tested the percentage of the study area
that was water (PctWater), but did not include it in the updated model
because it was insignificant in both regressions. This is unsurprising.
The proposed model included PctWater to account for the fact that
cabling may have to be run around bodies of water, but the updated
model accounts for the number of road miles (as a proxy for loop
length), so the additional cabling associated with routing around water
has already been accounted for.
103. The Bureau tested the percentage of road miles where the water
table was within 36 inches of the surface (PctWaterTable36). The Bureau
found the variable PctWaterTable36 to be weakly significant in opex,
but it had an implausible negative sign in both the capex and opex
regressions. Because of the sign issue and because inclusion of the
variable does not markedly improve the fit, the Bureau excludes it from
the model so as not to lower the cap for study areas with high water
tables.
104. Accipiter suggested adding the percentage change in loops
(PctLoopChange) to account for study areas that are growing, because
growing carriers ``are prone to have unique cost structures.'' The
Bureau believes the PctUndepPlant proxies for this, but out of an
abundance of caution, the Bureau tested PctLoopChange, but found that
it was insignificant, suggesting that PctUndepPlant is proxying for the
unique cost structures that Accipiter is concerned about.
105. Based on NRIC's updated opex regression, the Bureau tested
statewide median house values, but found them to be insignificant. This
is unsurprising because statewide values include mostly urban houses.
The Bureau's regional independent variables, however, helped capture
the intended effect.
106. The Bureau also tested the natural log of the number of stream
crossings (LnStreamCross), which could increase construction costs in
the same way that road crossings do. The Bureau found LnStreamCross to
be significant and negative in opex, but insignificant in capex.
Because the coefficient was an implausible sign in the opex regression
without an offsetting plausible coefficient in the other regressions,
the Bureau omitted LnStreamCross from both regressions.
107. The proposed model also included the number of census blocks
in the study area. Although the natural log of the total number of
census blocks (LnBlocks) was weakly significant in the opex regression,
it was not significant in the capex regression. Although the Bureau
generally included variables that were significant in at least one
regression in both regressions, the Bureau omitted census blocks from
the updated model regressions for two reasons. First, commenters did
not think that the number of blocks was a good proxy for density. Also,
the Bureau is now accounting for customer dispersion and density
directly through independent variables LnRoadMiles, LnRoadCrossings and
LnDensity.
108. Unavailable Independent Variables. Several carriers suggested
additional variables to the regression analysis, but the Bureau was
unable to include them because the data were either unavailable to the
Commission, nonpublic, or data could not be generated at the study area
level. The Bureau recognizes that some of the unavailable variables
could be significant if they could be included, but given the other
enhancements made to the regressions described herein, the Bureau
concludes that the methodology is adequate to identify cost outliers
among similarly situated companies.
[[Page 30423]]
109. The NRIC capex study postulated that the presence of wetlands
would increase construction costs because of need for additional
``approvals and specialized techniques.'' It found that wetlands were
positively correlated with increased predicted construction costs. As
NRIC points out, however, wetlands data are not available for Colorado,
Wisconsin and Montana. Since the Bureau's objective is to develop a
methodology that applies equally to all cost carriers, the Bureau could
not include wetlands data in the updated methodology.
110. Similarly, commenters suggested the following additional
variables that, if not already proxied in the model, could not be used
because they were unavailable to the Commission, nonpublic, or data
could not be generated at the study area level: Age of investment;
broadband speed capability; cable route miles or cable sheath miles;
status as carrier of last resort; copper versus fiber networks; cost of
living and labor costs; environmental; legal and regulatory costs; loop
length/average loop length; right of way costs and vacant lots; and
weather patterns.
111. One commenter argues that the Bureau's methodology should
include variables that are not universally available and that it is
better to comprehensively study a representative sample of study areas
and apply the results to the wider population of study areas. The
commenter does not specify, however, how the Bureau could apply that
knowledge to study areas for which the information is unavailable.
112. Implementation. For each study area, the regressions will be
used to generate the 90th percentile predicted values for both the
natural log of capex and the natural log of opex. These values will
then be converted back to ``levels'' by using the inverse of the
natural log function.
113. The lower of the study area's original algorithm step 25A and
the level of the predicted 90th percentile capex value will be retained
in algorithm step 25A. Similarly, the lower of the study area's
original algorithm step 25B and level of the predicted 90th percentile
opex value will be retained in algorithm step 25B. These values will
then be summed in algorithm step 25C, which will feed into algorithm
step 26.
V. Ordering Clauses
114. Accordingly, it is ordered, that pursuant to the authority
contained in sections 1, 2, 4(i), 201-206, 214, 218-220, 251, 254, and
303(r), and of the Communications Act of 1934, as amended, and section
706 of the Telecommunications Act of 1996, 47 U.S.C. 151, 152, 154(i),
201-206, 214, 218-220, 251, 254, 303(r), 1302, and pursuant to
Sec. Sec. 0.91, 0.131, 0.201(d), 0.291, 0.331, 1.3, and 1.427 of the
Commission's rules, 47 CFR 0.91, 0.131, 0.201(d), 0.291, 0.331, 1.3,
1.427 and pursuant to the delegations of authority in paragraphs 210,
217, 226 and 1404 of USF/ICC Transformation Order, 26 FCC Rcd 17663
(2011), 76 FR 73830, November 29, 2011, that this Order is adopted,
effective June 22, 2012.
115. It is further ordered, that the Commission shall send a copy
of this Order to Congress and the Government Accountability Office
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).
116. It is further ordered, that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Order, including the Final Regulatory Flexibility
Certification, to the Chief Counsel for Advocacy of the Small Business
Administration.
Federal Communications Commission.
Sharon E. Gillett,
Chief, Wireline Competition Bureau.
[FR Doc. 2012-12539 Filed 5-22-12; 8:45 am]
BILLING CODE 6712-01-P