[Federal Register Volume 78, Number 71 (Friday, April 12, 2013)]
[Proposed Rules]
[Pages 21891-21904]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08527]
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 64
[WC Docket No. 13-39; FCC 13-18]
Rural Call Completion
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Communications Commission proposes to adopt rules
requiring facilities-based originating long distance providers to
record and retain data on call completion rates to rural areas, and to
report this data to the Commission on a quarterly basis. We propose to
reduce or eliminate a provider's retention and reporting obligations if
that provider certifies that it qualifies for one of two proposed safe
harbor provisions. We also propose to prohibit both originating and
intermediate providers from causing audible ringing to be sent to the
caller before the terminating provider has signaled that the called
party is being alerted. These changes will allow the Commission to more
effectively determine the causes of call completion problems to rural
areas and take action to cure them, and will also prevent consumer
confusion caused by the injection of false ringtones before the called
party has been alerted.
DATES: Submit comments on or before May 13, 2013.
Submit reply comments on or before May 28, 2013.
Written comments on the Paperwork Reduction Act proposed
information collection requirements must be submitted by the public,
Office of Management and Budget (OMB), and other interested parties on
or before June 11, 2013.
ADDRESSES: You may submit comments, identified by WC Docket No. 13-39,
by any of the following methods:
[ssquf] Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
[ssquf] People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
In addition to filing comments with the Secretary, a copy of any
comments on the Paperwork Reduction Act information collection
requirements contained herein should be submitted to the Federal
Communications Commission via email to [email protected] and to Nicholas A.
Fraser, Office of Management and Budget, via email to [email protected] or via fax at 202-395-5167.
FOR FURTHER INFORMATION CONTACT: Steven Rowings, Competition Policy
Division, Wireline Competition Bureau, at (202) 418-1033 or by email at
[email protected]. To submit Paperwork Reduction Act (PRA)
comments, send an email to [email protected]. For further information
concerning the Paperwork Reduction Act information collection
requirements contained in this document, contact Judith B. Herman, 202-
418-0214.
SUPPLEMENTARY INFORMATION: Pursuant to Sec. Sec. 1.415 and 1.419 of
the Commission's rules, 47 CFR 1.415, 1.419, interested parties may
file comments and reply comments on or before the dates indicated on
the first page of this document. Comments may be filed using the
Commission's Electronic Comment Filing System (ECFS). See Electronic
Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
[ssquf] Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
[ssquf] Paper Filers: Parties who choose to file by paper must file
an original and one copy of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together
with rubber bands or fasteners. Any envelopes and boxes must be
disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street SW., Washington DC 20554.
People with Disabilities: To request materials in
accessible formats for people with disabilities (braille, large print,
electronic files, audio format), send an email to [email protected] or
call the Consumer & Governmental Affairs Bureau at 202-418-0530
(voice), 202-418-0432 (TTY).
This document contains proposed information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. Public and agency comments
are due June 11, 2013.
PRA comments should address whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; the accuracy of the Commission's burden estimates; ways to
enhance the quality, utility, and clarity of the information collected;
and ways to minimize the burden of the collection of
[[Page 21892]]
information on the respondents, including the use of automated
collection techniques or other forms of information technology; and
ways to further reduce the information burden for small business
concerns with fewer than 25 employees.
OMB Control Number: 3060-XXXX.
Title: Rural Call Completion Recordkeeping and Reporting.
Form No.: Not applicable.
Type of Review: New Collection.
Respondents: Business or other for-profit; not-for-profit
institutions; and State, Local or Tribal governments.
Number of Respondents and Responses: 90 respondents, 360 annual
responses.
Estimated Time per Response: 16 hours.
Frequency of Response: Quarterly reporting requirement and
recordkeeping requirement.
Obligation To Respond: Mandatory. Statutory authority is contained
in sections 1, 2, 4(i), 201, 202, 218, 220(a), and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
201, 202, 218, 220(a), and 403.
Total Annual Burden: 5,760 hours.
Total Annual Costs: $393,750.
Privacy Act Impact Assessment: N/A.
Nature and Extent of Confidentiality: The Commission gives no
assurances that information submitted in response to these proposed
rules will be treated as confidential. Any information provided by
parties to comply with these proposed rules may be submitted pursuant
to a request for confidentiality under Sec. 0.459 of the Commission's
rules. See 47 CFR 0.459.
Needs and Uses: These proposed rules would require facilities-based
originating long-distance voice service providers to collect data on
call answer rates, and to report those data to the Commission on a
quarterly basis. The information obtained through this collection will
allow the Commission to monitor the performance of long-distance
telephone service providers in order to more fully investigate the
disparity in performance levels between long-distance calls to rural
areas and those to nonrural areas, as well as to ensure that long-
distance providers are complying with their statutory obligations to
provide just, reasonable, and nondiscriminatory service throughout the
nation.
To request materials in accessible formats for people with
disabilities (Braille, large print, electronic files, audio format) or
to request reasonable accommodations for filing comments (accessible
format documents, sign language interpreters, CART, etc.), send an
email to [email protected] or call the Consumer & Governmental Affairs
Bureau at 202-418-0530 (voice) or 202-418-0432 (TTY).
Synopsis of Notice of Proposed Rulemaking
In this Notice of Proposed Rulemaking (NPRM), we seek comment on
rules to help address problems in the completion of long-distance
telephone calls to rural customers.
I. Introduction
1. Retail long-distance providers, such as wireless providers,
cable companies, interexchange carriers (IXCs), local exchange carriers
(LECs), and providers of Voice over Internet Protocol (VoIP) services,
often employ intermediate providers to carry long-distance calls to
their destination. Some of these intermediate providers offering
wholesale call delivery services may be failing to deliver a
significant number of calls to rural telephone company customers, and
evidence indicates that the retail long-distance providers may not be
adequately examining the resultant rural call completion performance.
2. Completion rates of long-distance calls to rural telephone
company service areas are frequently poor, even where overall
performance of the intermediate provider appears acceptable. The
problems manifest themselves in lengthy periods of dead air on the
calling party's end after dialing a number, audible ringing tones on
the calling party's end when the called party's telephone never rings
at all, false busy signals, inaccurate intercept messages, and the
inability of one or both parties to hear the other when the call does
go through. This causes rural businesses to lose customers, cuts
families off from their relatives in rural areas, and creates potential
for dangerous delays in public safety communications in rural areas.
3. In this proceeding, we will consider measures to improve the
Commission's ability to monitor the delivery of long-distance calls to
rural areas and aid enforcement action in connection with providers'
call-completion practices as necessary. We seek comment on reporting
and data retention requirements that would allow the Commission to
review a long distance provider's call performance to specific areas.
These measures would strengthen the Commission's ability to ensure a
reasonable and nondiscriminatory level of service to rural areas. We
also seek comment on how to minimize the burden of compliance with
these proposed rules, particularly for originating providers whose
call-routing practices do not appear to cause significant call-
completion problems.
II. Background
4. In filings with the Commission and in presentations at the
Commission's October 18, 2011 workshop on rural call routing and
termination problems, several entities identified a number of rural
call completion issues and asked the Commission to address them
promptly. Trade associations that represent rate-of-return carriers
(collectively, ``rural associations'') and several state utility
commissions describe the call-termination issues affecting rural areas
as serious and widespread. They emphasize that the inability of
businesses, consumers, and government officials to receive calls
compromises the integrity and reliability of the public switched
telephone network (PSTN) and threatens the public safety, homeland
security, consumer welfare, and economic well-being of rural America.
These entities claim that call-termination problems continue to
increase and that the result is the ``effective disconnection of rural
consumers from many other parts of the PSTN.''
5. As evidence of the problem, rural associations report that rate-
of-return carriers serving rural areas are reporting an alarming
increase in complaints from their customers stating that long-distance
calls and faxes are not reaching them or that call quality is poor.
Indeed, these rural associations state that 80 percent of rural
carriers responding to one survey reported problems, and rural customer
reports of problems receiving calls increased by more than 2000 percent
in the twelve-month period from April 2010 to March 2011. In May 2012,
the rural associations conducted a second call-completion study based
on over 7400 call attempts and reported that, while there was some
improvement in rural areas from 2011 to 2012, the incompletion rate in
rural areas was still 13 times higher in rural areas than in nonrural
areas. In November 2012, a third survey of rural carriers indicated
that the problems with completing calls to rural areas were continuing
at an alarming rate.
6. Call completion problems appear to occur particularly in rural
areas served by rate-of-return carriers, where the costs that long-
distance providers incur to complete calls are generally higher than in
nonrural areas. To minimize call termination charges, long-distance
providers often use intermediate providers that offer to deliver calls
to specified terminating providers at comparatively low cost, usually
within
[[Page 21893]]
defined service quality parameters. Rural associations suggest that the
call-completion problems may arise from the manner in which originating
providers set up the signaling and routing of their calls, and that
many of these call routing and termination problems can be attributed
to intermediate providers.
7. Previous Commission Actions. The Commission has stated that
carriers are prohibited from blocking, choking, reducing, or
restricting traffic in any way, including to avoid termination charges.
Noting that the ubiquity and reliability of the nation's
telecommunications network is of paramount importance to the explicit
goals of the Act, the Wireline Competition Bureau (Bureau) issued a
declaratory ruling in 2007 to clarify that no carriers, including
interexchange carriers, may block, choke, reduce, or restrict traffic
in any way.
8. In September 2011, the Commission created the Rural Call
Completion Task Force to address and investigate the growing problems
associated with calls to rural customers. On October 18, 2011, the Task
Force held a workshop to identify specific causes of the problem and
discuss potential solutions with key stakeholders.
9. In its November 2011 Order reforming intercarrier compensation
and the Universal Service Fund, the Commission again emphasized its
longstanding prohibition on call blocking. The Commission reiterated
that call blocking has the potential to degrade the reliability of the
nation's telecommunications network and that call blocking harms
consumers. The Commission also made clear that the general prohibition
on call blocking by carriers applies to VoIP-PSTN traffic. Finally, the
Commission prohibited call blocking by providers of interconnected VoIP
services and providers of ``one-way'' VoIP services.
10. In February 2012, the Wireline Competition Bureau issued a
declaratory ruling to clarify the scope of the Commission's prohibition
on blocking, choking, reducing, or restricting telephone traffic in
response to continued complaints about rural call completion issues
from rural associations, state utility commissions, and consumers. The
2012 Declaratory Ruling made clear that rural call routing practices
that lead to call termination and quality problems may violate the
prohibition against unjust and unreasonable practices in section 201 of
the Communications Act of 1934, as amended (the Act) or may violate the
carriers' section 202 duty to refrain from unjust or unreasonable
discrimination in practices, facilities, or services. The 2012
Declaratory Ruling also noted that carriers may be subject to liability
under section 217 of the Act for the actions of their agents or other
persons acting for or employed by the carriers. The Bureau stated that
the practices causing rural call completion problems ``adversely affect
the ubiquity and reliability of the nation's telecommunications network
and threaten commerce, public safety, and the ability of consumers,
businesses, and public health and safety officials in rural America to
access and use a reliable network.''
11. In addition to conducting ongoing investigations of several
long-distance providers, the Commission has also been addressing daily
operational problems reported by rural customers and carriers so that
incoming long-distance calling to rural telephone company customers is
promptly restored. We have established dedicated avenues for rural
customers and carriers to inform the Commission about these call
completion problems. A web-based complaint intake focuses on the rural
call completion problems of residential and business customers,
instructs them on how to file complaints with the Commission, and links
to the Commission's standard 2000B complaint form. A dedicated email
intake expedites the ability of rural telephone companies to alert the
Commission of systemic problems receiving the calls from a particular
originating long-distance provider and facilitates provider-to-provider
resolution.
12. Other Actions. In December 2012, the Oregon Public Utilities
Commission adopted additional Conditions of Certificates of Authority
requiring a certificate holder to take reasonable steps to ensure that
it does not adopt or perpetuate intrastate routing practices that
result in lower-quality service to an exchange with higher terminating
access rates.
III. Discussion
13. There is ample evidence that rural call completion problems are
widespread and serious. We are dedicated to ensuring that all Americans
receive high-quality telephone service. Although the Commission has
stated unequivocally that traffic may not be blocked, choked, reduced,
or restricted, we have learned that carriers often do not retain
records that permit the Commission to determine compliance with these
prohibitions. To that end, in this NPRM we propose rules that would
help the Commission monitor originating providers' call-completion
performance and ensure that telephone service to rural consumers is as
reliable as service to the rest of the country. In essence, these
proposed rules would require facilities-based originating long-distance
voice service providers to collect and report to the Commission data on
call answer rates. For purposes of this Notice, originating long-
distance voice service providers include local exchange carriers,
interexchange carriers, commercial mobile radio service (CMRS)
providers, and interconnected VoIP service providers. We seek comment
on whether these proposed rules should apply to other categories of
providers as well, such as one-way VoIP service providers, and on the
Commission's authority to extend these proposed rules to such
providers. We also welcome data explaining why call answer rates might
differ between rural and nonrural areas and why any differential may be
reasonable.
14. We also propose a rule that would prohibit both originating
providers and intermediate providers from causing audible ringing to be
sent to the caller before the terminating provider has signaled that
the called party is being alerted. We seek comment on whether these
proposed rules will help alleviate rural call completion problems, or
whether the Commission should consider different approaches, and, if
so, what those approaches are.
15. We recognize that even when calls to rural areas in particular
do get answered, the communications quality of the call may be so poor
as to render the communication between the calling and called parties
unsuccessful. While we do not propose call communications quality
standards at this time, we will continue to monitor the problem, and we
may revisit the issue in the future if improvements in call answer
rates and signaling integrity do not result in concomitant improvements
in call communications quality.
A. Data Reporting, Recordkeeping, and Retention
16. Our processing of informal complaints that have been filed with
the Commission concerning rural call completion problems indicates that
some originating long-distance providers collect and retain the call
history data that support detection of problems with calls to rural
areas. However, we have also found that some long-distance providers do
not collect and retain information on failed call attempts that is
necessary for segregating the percentage of calls failing to complete
to rural areas from all calls being carried to all destinations. As a
result, some long-distance providers appear unable to analyze rural
[[Page 21894]]
call performance relative to overall performance or to distinguish the
performance of intermediate providers in delivering calls to rural
areas. Additionally, this lack of data has impeded Enforcement Bureau
investigations.
17. Consequently, subject to certain limitations and safe harbors
discussed below, we propose to adopt rules that would require
facilities-based originating long-distance voice service providers to
collect and retain basic information on call attempts and to
periodically undertake a basic call completion summary analysis and
report the results to the Commission. If the originating long-distance
voice service provider is not facilities based, we propose to apply
these obligations to the first facilities-based provider in the call-
delivery chain, because the facilities-based provider will have access
to the inaugural call detail information.
18. Below, we seek comment on our proposed rules, the types of
carriers and providers to be covered by these rules, the general
categories of call attempts covered, the types of calls that should be
excluded, the information to be collected on each call attempt covered,
and the length of time such information should be retained. We also
seek comment on possible safe harbors that would relieve providers of
reporting obligations and reduce their record retention requirements.
19. Our authority for these reporting, record keeping, and
retention rules lies in sections 201(b) and 202(a) of the Act: call
routing practices that lead to rural call termination and quality
problems may violate the prohibition against unjust and unreasonable
practices in section 201(b), or may violate carriers' duty under
section 202(a) to refrain from unjust or unreasonable discrimination in
practices, facilities, or services. Sections 218, 220(a), and 403 of
the Act provide additional authority for these proposed rules with
regard to carriers. To the extent that these proposed rules would apply
to VoIP providers, we propose to exercise our ancillary authority to
the extent that VoIP services are information services, on the ground
that such requirements would be necessary for the Commission to carry
out its section 201(b) and 202(a) obligations with regard to carriers.
We seek comment on this analysis and any additional sources of possible
authority, such as section 403.
1. Proposed Reporting, Recordkeeping, and Retention Requirements
20. Reporting Requirements. We propose to adopt a rule requiring
that facilities-based originating long-distance providers measure the
call answer rate for each rural operating company number (OCN) to which
100 or more calls were attempted during the calendar month for the
categories of call attempts identified below, and that originating
long-distance providers also measure the overall call answer rate for
nonrural call attempts. We propose to adopt a rule requiring that
originating long-distance providers submit in electronic form the
monthly call answer rate for rural OCNs with 100 attempts or more and
the nonrural monthly overall average to the Commission once per
calendar quarter. The data collection and reporting requirements that
we propose would allow the Commission to compare an originating
provider's performance in delivering interstate and intrastate long-
distance calls to rural local exchanges versus nonrural local
exchanges. We believe that it is necessary to measure performance at
the individual rural telephone company level, as identified by the OCN,
to ensure that poor performance to any individual rural telephone
company is not masked, as it otherwise would be by averaging together
calls to all rural telephone companies or averaging call data for rural
and nonrural areas.
21. We seek comment on our proposed reporting requirements. Is the
proposed 100 call per month threshold appropriate or, for example,
should the threshold be tied to a provider's overall number of call
attempts, such as a percentage of overall call attempts? Should all
call attempts be included, or just those attempted in some peak period
such as between noon and 6:00 p.m. Eastern time? Are the proposed
monthly measurement and quarterly reporting intervals appropriate? For
example, is the nature of chronic call routing failures such that
measurement data analyzed monthly masks problems that a weekly
measurement would capture? If the Commission adopts quarterly reporting
requirements, on what dates should they be filed? We seek comment on
the benefits and burdens associated with our proposed reporting
requirements. We seek comment on whether the information that will be
provided should be treated as confidential or be open to public
inspection.
22. Record Keeping and Retention. We propose to adopt a rule
requiring that providers record information for each long-distance call
attempt they handle. We propose that, in addition to calling party
number, called party number, and date and time, the information
recorded on each call attempt include: (1) Whether the call attempt was
handed off to an intermediate provider and, if so, which intermediate
provider; (2) whether the call attempt was going to a rural carrier
and, if so, which rural carrier as identified by its OCN; (3) whether
the call attempt was interstate; and (4) whether the call attempt was
answered. We propose that providers be required to retain these call
attempt records in a readily retrievable form for a period that
includes the six most recent complete calendar months.
23. We seek comment on our proposed record-keeping and record-
retention requirements. We also seek comment generally on the long-
distance records and data that originating providers currently collect
in the normal course of business, and to what extent they already (1)
capture and (2) retain the information proposed. For example, do
originating providers typically retain the information we propose to be
retained on each call attempt, including on failed attempts? We seek
comment on the benefits and burdens associated with collecting and
retaining information as described above that is additional to
currently collected information. We seek comment on whether recording
and retaining a statistically valid sample of data could fulfill the
purposes of data retention and provide the basis for the required
reporting while being less burdensome. Would a statistical sample
support enforcement action in connection with a provider's call-
completion practices?
24. Entities Covered By Proposed Rules. As noted above, we propose
to adopt a rule requiring that if the originating provider is not
facilities based, the record-keeping, retention, and reporting
requirements proposed in this NPRM would apply to the first facilities-
based provider that is involved in handling the call. In cases where
the first facilities-based provider serves multiple non-facilities-
based originating providers, the facilities-based provider should
aggregate the call attempt information for all such non-facilities-
based providers into a single report. We seek comment on this proposal.
Does limiting these proposed requirements to facilities-based providers
ensure that the rules apply to the entity with the most direct access
to call records, thus minimizing the burden of compliance? Should the
Commission also impose record-keeping and reporting requirements on
intermediate providers? If so, what types of record-keeping and
reporting requirements? Would the burden of compliance be lower for
intermediate providers that also provide originating service to end
users? We seek comment generally on
[[Page 21895]]
the benefits and burdens associated with limiting our proposed
requirements to facilities-based providers.
25. Categories of Call Attempts. For purposes of this rulemaking,
we propose to categorize long-distance call attempts according to call
source type and terminating provider type. With respect to call source
type, the provider subject to these proposed rules will be either a
facilities-based originating long-distance voice service provider or,
if the originating provider is not facilities based, the first
facilities-based long distance service provider in the call-completion
chain. We propose that data collection requirements cover, at a
minimum, the following source-termination categories of long-distance
call traffic: originating provider to rural telephone company
(including rural CLEC), originating provider to nonrural LEC (including
nonrural CLEC), first facilities-based provider to rural telephone
company (including rural CLEC), and first facilities-based provider to
nonrural LEC (including nonrural CLEC). We seek comment on whether
other categories of calls should also be covered, such as calls to CMRS
subscribers, which do not normally incur high termination access
charges on termination in rural areas and have not been the subject of
the same types of complaints as calls to rural telephone companies.
26. We seek comment on whether these proposed categories are both
necessary and sufficient for purposes of the data retention and
reporting described above. For example, should some subcategories, such
as traffic to nonrural CLECs, be excluded? We note that some providers
may handle substantial amounts of auto-dialer traffic on behalf of
retail business customers who may have call completion expectations and
capacity requirements that are different from those of residential and
business callers. Can such auto-dialer traffic sources be reliably
identified, and if so, should auto-dialer call attempts be excluded
from traffic sources? Our principal objective is to compare a
provider's rural and nonrural performance. Is it thus reasonable to
require providers that can identify and exclude auto-dialer traffic to
do so, even if other providers may not be able to do so? We are aware
that auto-dialers are also used to distribute emergency alert
notifications, including across some rural areas. Can emergency auto-
dialer sources be reliably identified, and if so, can and should
emergency auto-dialer traffic be included even if other auto-dialer
traffic is excluded?
27. Call Attempts That Can Be Excluded. We propose to use a ``call
answer rate'' as the basic measure of call completion performance. An
``answered call attempt'' means a call attempt that is answered by the
called party, including, for example, by voicemail, answering machine,
or fax machine. We calculate a call answer rate as ``the number of call
attempts that result in an answer divided by the total number of calls
attempted, expressed as a percentage.'' In the following paragraphs, we
propose the types of call attempts to be included and excluded when
calculating the call answer rate.
28. In the typical arrangement, an intermediate provider must hand
a call back to the upstream provider if it cannot expeditiously hand
off the call attempt downstream, e.g., to the terminating provider.
This is so the upstream provider can attempt to complete the call using
another intermediate provider or over its own facilities. In order to
avoid double-counting such multiple attempts for the same call, we
propose that call attempts that are handed back to the upstream
provider should be excluded from data collection and reporting
requirements. We seek comment on whether it is feasible and appropriate
to exclude such call attempts in view of the reporting objective.
29. When a terminating provider is successful or unsuccessful in
completing a call, it signals a ``cause value'' giving a precise
indication of the event. Cause values can be classified into three
general categories indicating the nature or origin of the event: Call
Completed, User, and Network. One commonly occurring ``User'' cause is
``unallocated number'' (cause value 0), which indicates that the caller
has dialed a properly formatted telephone number, but that number
itself is not assigned. Excluding all call attempts indicating that the
user apparently misdialed could mask call attempts that actually failed
or were dropped within an intermediate provider's network, because
there is anecdotal evidence to suggest that calling parties sometimes
receive intercept messages that wrongly indicate, for example, that the
call cannot be completed as dialed. We thus propose that all call
attempts to an ``unallocated number'' be retained. We seek comment on
this proposal. Similarly, we have anecdotal evidence that other
``User'' events, such as ``user busy,'' ``no user responding'' (i.e.,
ring no answer) or ``number changed,'' which should be signaled only by
the terminating provider, are sometimes being signaled by intermediate
providers. Consequently, the most reliable measure is whether the call
attempt is actually answered (``call completed'' cause values 16 and
31); excluding call attempts indicating apparent user behavior such as
``user busy'' or ``user not responding'' could mask call attempts that
actually failed or were dropped within an intermediate provider's
network. Thus we propose that any call attempt not answered and showing
a ``User'' category release cause code should be included in the total
of call attempts. We seek comment on this proposal.
30. We seek comment on other types of long-distance call attempts
that should be excluded from the categories of call attempts covered.
For example, can calls to toll-free numbers be reliably excluded?
Should answered calls of very short duration, such as less than two
seconds, be excluded? Are there internal network test calls that are
readily identifiable and easily excluded?
2. Proposed Limitations on Application of Reporting and Retention Rules
31. In order to lessen the burden of compliance with these proposed
rules, we propose to require only those originating long-distance
providers and other covered providers with more than 100,000 retail
long-distance subscribers (business or residential) to retain the basic
information on call attempts and to periodically report the summary
analysis of that information to the Commission. We seek comment on this
proposal. Would the exclusion of smaller providers compromise the
Commission's ability to monitor rural call completion problems
effectively?
32. We also propose two safe harbors by which providers can avoid
or reduce their obligations under the data reporting and retention
obligations that we propose in this NPRM. The purpose of these safe
harbors is to minimize the burden of compliance without compromising
the goals of these rules. We seek comment on the proposed safe harbors,
and whether they should include safeguards to ensure that providers'
call-completion performance does not suffer. For example, should we
delegate to the Wireline Competition Bureau authority to revoke a
provider's eligibility for these safe harbors if the Commission
receives a certain number of complaints about that provider's call-
completion performance? If so, what would be an appropriate number of
complaints or other trigger to justify revoking eligibility for the
safe harbors?
33. Managing Intermediate Provider Safe Harbor. Our first proposed
safe harbor would relieve a provider of all call completion data
retention and reporting obligations proposed in this
[[Page 21896]]
NPRM. To qualify for this safe harbor, a provider must certify on an
annual basis that it restricts by contract directly connected
intermediate providers to no more than one additional intermediate
provider in the call path before the call reaches the terminating
provider. The provider must further certify that any nondisclosure
agreement with an intermediate provider permits the originating
provider to reveal the identity of the intermediate provider to the
Commission and to the rural carrier(s) whose incoming long-distance
calls are affected by the intermediate provider's performance. Finally,
the provider must certify that it has a process in place to monitor the
performance of its intermediate providers in completing calls to
individual rural telephone companies as identified by Operating Carrier
Number.
34. We seek comment on this proposed safe harbor. For example, will
restricting the number of intermediate providers in the call path from
a retail customer improve the originating provider's control
sufficiently to maintain rural call answer rates that are on par with
nonrural rates? Is the restriction to no more than two intermediate
providers between the originating provider and the terminating provider
the appropriate number? Will providing the identity of the intermediate
provider that is affecting the incoming long-distance calls assist the
terminating rural provider in troubleshooting with other originating
providers?
35. Monitoring Performance Safe Harbor. Our second proposed safe
harbor would subject a provider to a reduced call-completion data
retention obligation and relieve the provider of all reporting
obligations proposed in this Notice. To qualify for this safe harbor, a
provider must certify on an annual basis that for each of the previous
12 months, it has met the following performance standard: the average
call answer rate for all rural carriers to which the provider attempted
more than 100 calls in a month was no more than 2 percent less than the
average call answer rate for all calls it placed to nonrural carriers
in the same month, and the call answer rates for 95 percent of those
rural carriers to which the provider attempted more than 100 calls were
no more than 3 percent below the average rural call answer rate.
Finally, the provider must certify that it has a process in place to
investigate its performance in completing calls to individual rural
telephone companies (as identified by Operating Carrier Number) for
which the call answer rate is more than 3 percent below the average of
the rural call answer rate for all rural telephone companies to which
it attempted more than 100 calls. Providers that certify compliance
with this safe harbor would be relieved of any quarterly reporting
obligation and would be required to retain call attempt data in readily
retrievable form for a reduced period of three months.
36. We seek comment on this proposed safe harbor. Are these
proposed thresholds reasonable and appropriate? Are calls to business
customers more likely to be answered than calls to residential
customers, and is the percentage of calls to business customers in
nonrural area higher than in rural areas such that a call answer rate
differential is appropriate, and if so, are the differentials proposed
above reasonable? Is the nature of chronic call routing failures such
that measurement data analyzed monthly masks significant problems?
Would it be more appropriate to set a threshold based on weekly or
other measurements? Is three months of past information sufficient if
any investigation of rural call completion or service quality issues is
deemed necessary, notwithstanding that a particular type of safe harbor
certification has been made?
3. Duration of Proposed Reporting and Retention Rules
37. In the USF/ICC Transformation Order, the Commission adopted
rules that may ultimately address the root causes of many rural call
completion problems. In particular, in comprehensively reforming
intercarrier compensation, the Commission adopted a bill-and-keep
methodology for all intercarrier traffic, and adopted a transition plan
to gradually reduce most termination charges, which, at the end of the
transition, should eliminate the primary incentives for cost-saving
practices that appear to be undermining the reliability of rural
telephone service.
38. NARUC has argued, and we agree, that there is a need to limit
the harmful effect of these rural call completion problems on consumers
in the near term. Accordingly, we propose these rules to provide prompt
relief to rural consumers who are receiving inferior telephone service.
We seek comment, however, on whether the rules we propose today should
expire at the end of the intercarrier compensation reform transition
period or some other point. Would a sunset provision reduce the burden
of compliance? Would rural consumers be sufficiently protected from
call completion problems if the rules expire at that time? If not, we
seek comment on alternative sunset dates, or whether the requirements
should remain in effect until the Commission modifies the relevant
rules.
B. Proposed Ring Signaling Integrity Requirements
39. A major complaint by rural representatives regarding call
termination problems is ``false audible ringing,'' in which the long-
distance caller hears prolonged ringing--and so finally hangs up--
before the rural phone he called has rung at all. This appears to be
relatively new as a widespread phenomenon, and is brought about when
the originating provider or an intermediate provider prematurely
triggers the audible ring tone to the caller before the call setup
request has actually reached the terminating rural provider. An
originating provider or intermediate provider may do this to mask the
silence that would otherwise be heard by the caller during excessive
call setup time. Moreover, once an intermediate provider provides a
ringing indication to an originating provider while still processing
the call, the call cannot be handed back to the preceding provider for
an alternate route.
40. This premature audible ringing departs from the long-
established telephony signaling practice (and end-user expectation) of
audible ringing indication being provided to the caller only after the
terminating provider affirmatively signals that the called line is free
and the called party is being alerted. The net effect of this practice
is to unfairly make it appear to the caller that the terminating rural
provider is responsible for the call failure, instead of the
originating provider. Complaints filed with the Commission indicate
that this misperception is often shared by the rural called party, who
may eventually hear his phone ringing and answer after the calling
party has finally hung up.
41. The decision by some providers to deviate from traditional
industry practice is likely to harm consumers in rural areas. We
therefore propose a new rule that would prohibit both originating
providers and intermediate providers from causing audible ringing to be
sent to the caller before the terminating provider has signaled that
the called party is being alerted. Originating providers and
intermediate providers must also convey audio tones and announcements
sent by the terminating provider to the calling party. This proposal
would codify a widely accepted industry practice that has in the past
proven effective. We expect that the proposed rule will improve the
ability to identify the provider responsible for service failures,
[[Page 21897]]
without imposing unduly burdensome costs.
42. Our authority for this ring signaling integrity rule lies in
section 201(b) of the Act: it is an unreasonable practice to send
misleading ring sounds to customers making long-distance phone calls,
as it may cause them to believe that the called party is not answering
when in fact the call has not yet been connected or has been connected
for a shorter time than the ring sounds would lead the calling party to
believe. To the extent that this proposed rule would apply to VoIP
providers, we propose to exercise our ancillary authority to the extent
that VoIP services are information services, on the ground that such
requirements would be necessary for the Commission to carry out its
section 201(b) obligations with regard to carriers. We seek comment on
this analysis and any additional sources of possible authority.
43. We invite comment on this proposed rule and on whether it is
consistent with prior telephony industry practice and telephone user
expectation with respect to the meaning of audible ringing. We seek
comment on whether the proposed rule is consistent with recommended
industry practice for TDM- and IP-based telephony interworking. We seek
comment on the benefits and burdens associated with this proposed rule.
We also seek comment on the need to extend these requirements to non-
interconnected VoIP providers and on the Commission's authority to do
so. Finally, we seek comment on whether, for technical reasons, any
aspect of this proposed rule should be applied differently to
originating CMRS carriers.
IV. Procedural Matters
A. Paperwork Reduction Act
44. This document contains proposed new information collection
requirements. The Commission, as part of its continuing effort to
reduce paperwork burdens, invites the general public and the Office of
Management and Budget (OMB) to comment on the information collection
requirements contained in this document, as required by the Paperwork
Reduction Act of 1995, Public Law 104-13. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), we seek specific comment on how we might ``further
reduce the information collection burden for small business concerns
with fewer than 25 employees.''
B. Regulatory Flexibility
45. As required by the Regulatory Flexibility Act of 1980, as
amended, the Commission has prepared an Initial Regulatory Flexibility
Analysis (IRFA) for this notice of proposed rulemaking, of the possible
significant economic impact on a substantial number of small entities
by the policies and rules proposed in this notice of proposed
rulemaking. Written public comments are requested on this IRFA.
Comments must be identified as responses to the IRFA and must be filed
by the deadlines for comments on the notice of proposed rulemaking. The
Commission will send a copy of the notice of proposed rulemaking,
including this IRFA, to the Chief Counsel for Advocacy of the SBA. In
addition, the notice of proposed rulemaking and IRFA (or summaries
thereof) will be published in the Federal Register.
C. Ex Parte Presentations
46. The proceeding this NPRM initiates shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Sec. 1.1206(b). In proceedings governed by
Sec. 1.49(f) or for which the Commission has made available a method
of electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
Initial Regulatory Flexibility Analysis
1. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this Notice of Proposed Rulemaking (NPRM). Written comments
are requested on this IRFA. Comments must be identified as responses to
the IRFA and must be filed by the deadlines for comments on the NPRM.
The Commission will send a copy of the NPRM, including this IRFA, to
the Chief Counsel for Advocacy of the Small Business Administration
(SBA). In addition, the NPRM and IRFA (or summaries thereof) will be
published in the Federal Register.
A. Need for, and Objectives of, the Proposed Rules
2. The NPRM seeks comment on a variety of issues relating to
possible remedies for the problem of low call completion rates and poor
overall call quality to rural America. As discussed in the NPRM, the
proposed rules will provide an incentive for originating long distance
providers to more closely monitor their call completion performance in
rural areas and more actively manage their dealings with intermediate
providers, while also providing more clarity to consumers in
identifying the carriers responsible for call completion and quality
problems. The ubiquity and reliability of the nation's
telecommunications network are of paramount importance to the
Communications Act of 1934, as amended, and problems adversely
affecting that ubiquity and reliability threaten commerce, public
safety, and the ability of consumers, businesses, and public health and
safety officials in rural America to access and use a reliable network.
In order to confront these challenges, the NPRM asks for comment in a
number of specific areas.
1. Data Reporting and Retention Requirements
3. The NPRM first proposes that facilities-based originating long-
distance voice service providers collect and
[[Page 21898]]
retain basic information on call attempts and report to the Commission
data on call answer rates. The NPRM proposes that originating long-
distance voice service providers include local exchange carriers,
interexchange carriers, commercial mobile radio service (CMRS)
providers, and interconnected VoIP service providers, and seeks comment
on whether these proposed requirements should apply to other categories
of providers, such as one-way VoIP service providers, and on the
Commission's authority to extend the proposed rules to such providers.
The NPRM proposes to apply these obligations to the first facilities-
based provider in the call-delivery chain when the originating long-
distance voice service provider is not facilities based. The NPRM also
seeks comment offering data to explain any differential in call answer
rates between rural and nonrural areas, and why such a differential may
be reasonable.
4. Specifically, the NPRM proposes to adopt a rule requiring that
facilities-based originating long-distance providers measure the call
answer rate for each rural operating company number (OCN) to which 100
or more calls are attempted in a calendar month, as well as the overall
call answer rate for nonrural call attempts, and to retain those
records for a period including the six most recent complete calendar
months. The NPRM seeks comment on these proposed requirements,
including whether and to what extent originating providers collect and
retain these sorts of call attempt records in the ordinary course of
business, as well as on the benefits and burdens these data collection
and retention requirements might produce.
5. The NPRM further proposes to adopt a rule requiring that
originating long-distance providers report to the Commission the
monthly call answer rate for rural OCNs with 100 attempts or more and
the nonrural monthly overall average call answer rate once per calendar
quarter in order that the Commission can compare an originating
provider's performance in delivering interstate and intrastate long-
distance calls to rural local exchanges versus nonrural local
exchanges. The NPRM seeks comment on this reporting requirement,
including whether the 100-call per month threshold is appropriate and
whether a weekly reporting requirement would provide more useful data
than the proposed monthly requirement, the benefits and burdens the
proposed reporting requirements might produce, and whether the
information reported should be treated as confidential or open to
public inspection.
6. The NPRM also seeks comment on application of the proposed
rules, if the originating provider is not facilities based, to the
first facilities-based provider in the call chain. The NPRM seeks
comment on whether limiting the proposed requirements to facilities-
based providers ensures that the entities collecting and reporting this
data are those with the most direct access to call records, thus
minimizing the burden of compliance. The NPRM also seeks comment on
whether the proposed rules, or some variation thereof, should also be
applied to intermediate providers and whether the burden of compliance
would be lower for intermediate providers that also provide originating
service to end users. The NPRM seeks comment on the burdens and
benefits associated with limiting the application of the proposed rules
to facilities-based providers.
7. The NPRM proposes to adopt a rule requiring that providers
record information for each long-distance call attempt they handle. In
addition to calling party number, called party number, date and time,
the NPRM proposes that the information recorded on each call attempt
include: (1) Whether the call attempt was handed off to an intermediate
provider and, if so, which intermediate provider; (2) whether the call
attempt was going to a rural carrier and, if so, which rural carrier as
identified by its OCN; (3) whether the call attempt was interstate; and
(4) whether the call attempt was answered. The NPRM proposes that
providers be required to retain these call attempt records in a readily
retrievable form for a period that includes the six most recent
complete calendar months. The NPRM seeks comment on these proposed
record-keeping and record retention requirements, on what long-distance
records and data that originating providers currently collect in the
normal course of business, and on the benefits and burdens associated
with collecting and retaining the information proposed.
8. The NPRM proposes to categorize long-distance call attempts
according to call source type and terminating provider type. These
proposed source-termination categories of long-distance call traffic
include, at a minimum: originating provider to rural telephone company
(including rural CLEC), originating provider to nonrural LEC (including
nonrural CLEC), first facilities-based provider to rural telephone
company (including rural CLEC), and first facilities-based provider to
nonrural LEC (including nonrural CLEC). The NPRM seeks comment on
whether these categories of call attempts are sufficient for the
proposed rules, and also asks whether other categories of calls should
be included, such as calls to CMRS subscribers.
9. The NRPM proposes to exclude from the proposed data collection
and reporting requirements call attempts that are handed back to an
upstream provider for further attempts at completion in order to avoid
double-counting such multiple attempts for the same call. The NPRM
seeks comment on this proposal. The NPRM also proposed to include in
the data collection and reporting requirements all call attempts not
answered that show a ``User'' category release cause code in response
to concerns that excluding such call attempts could mask call attempts
that actually failed or were dropped within an intermediate provider's
network. The NPRM seeks comment on the appropriateness and efficacy of
these proposals, and on whether other types of long-distance call
attempts should be excluded.
2. Proposed Limitations on Application of Reporting and Retention Rules
10. The NPRM proposes to apply these reporting and retention
requirements only to covered providers with more than 100,000 retail
long-distance subscribers (business or residential) in order to reduce
the burden of compliance with the proposed rules. It seeks comment on
this proposal, and on whether the exclusion of smaller providers would
compromise the Commission's ability to effectively monitor rural call
completion problems.
11. The NPRM also proposes two safe harbors by which covered
providers can avoid or reduce their reporting and retention obligations
under the proposed rules in order to minimize the burden of compliance
without compromising the goals of the proposed rules. The NPRM seeks
comment on the proposed safe harbors, whether the proposed safe harbors
will achieve that purpose, and whether the safe harbors should include
safeguards to ensure that providers' call-completion performance does
not suffer. The NPRM seeks comment on whether the Commission should
delegate authority to the Wireline Competition Bureau to revoke a
provider's eligibility for these safe harbors if the Commission
receives a certain number of complaints about that provider's call-
completion performance.
12. The NPRM proposes in the first safe harbor to relieve a covered
provider of the proposed reporting and data retention requirements if
it certifies
[[Page 21899]]
annually that it restricts by contract directly connected intermediate
providers to no more than one additional intermediate provider in the
call path before the call reaches the terminating provider. This
proposed safe harbor also requires a provider to certify that any
nondisclosure agreement with an intermediate provider permits the
originating provider to reveal the intermediate provider's identity to
the Commission and to any rural carrier whose incoming long-distance
traffic is affected by the intermediate provider's performance.
Finally, the first proposed safe harbor requires the covered provider
to certify that it has a process in place to monitor the performance of
its intermediate providers in completing calls to individual rural
telephone companies as identified by Operating Carrier Number.
13. The NRPM seeks comment on this proposed safe harbor, including
whether restricting the number of intermediate providers in the call
path from a retail customer will improve the originating provider's
control sufficiently to maintain rural call answer rates that are on
par with nonrural rates, whether the restriction to no more than two
intermediate providers between the originating provider and the
terminating provider is the appropriate number, and whether disclosing
the identity of the intermediate provider will allow originating and
terminating providers to troubleshoot more effectively.
14. The NRPM proposes in the second safe harbor to reduce to three
months a covered provider's record retention obligations and eliminate
its reporting obligations if it certifies annually that for each of the
preceding 12 months: (1) its average call answer rate for all rural
carriers to which the provider attempted more than 100 calls in a month
was no more than 2 percent less than the average call answer rate for
all calls it placed to nonrural carriers in the same month; and (2) the
call answer rates for 95 percent of those rural carriers to which it
attempted more than 100 calls were no more than 3 percent below the
average rural call answer rate. The provider must also certify that it
has a process in place to investigate its performance in completing
calls to individual rural telephone companies (as identified by
Operating Carrier Number) for which the call answer rate is more than 3
percent below the average of the rural call answer rate for all rural
telephone companies to which it attempted more than 100 calls.
15. The NPRM seeks comment on this second proposed safe harbor,
including whether the second proposed safe harbor's proposed thresholds
are reasonable and appropriate, whether the safe harbor should make
some allowance for any potential difference in call answer rates
between residential and business customers, whether a weekly
measurement requirement would reveal call-completion problems that a
monthly measurement would mask, and whether three months of past
information is sufficient if any investigation of rural call completion
or service quality issues is deemed necessary.
16. The NPRM also seeks comment on whether the rules proposed
should expire at the end of the intercarrier compensation reform
transition period or some other point in view of the possibility that
intercarrier compensation reform should eliminate the primary
incentives for cost-saving practices that appear to be undermining the
reliability of rural telephone service. The NPRM seeks comment on
whether a sunset provision would reduce the burden of compliance,
whether rural consumers would be sufficiently protected from call
completion problems if the rules expire at that time, alternative
sunset dates, and whether the proposed requirements should remain in
effect until the Commission modifies the relevant rules.
3. Proposed Ring Signaling Integrity Requirements
17. The NPRM proposes a new rule that would prohibit both
originating and intermediate providers from causing audible ringing to
be sent to the caller before the terminating provider has signaled that
the called party is being alerted. The proposed rule also requires
originating providers to convey audio tones and announcements sent by
the terminating provider to the calling party. The NPRM seeks comment
on this proposed rule, including whether it is consistent with prior
telephony industry practice, telephone user expectation with respect to
the meaning of audible ringing, and recommended industry practice for
TDM- and IP-based telephony interworking. The NPRM also seeks comment
on the benefits and burdens associated with this proposed rule.
Finally, the NPRM seeks comment on the need to extend these
requirements to non-interconnected VoIP providers, including the
Commission's authority to do so, and on whether, for technical reasons,
any aspect of this proposed rule should be applied differently to
originating CMRS carriers.
B. Legal Basis
18. The legal basis for any action that may be taken pursuant to
the NPRM is contained in sections 1, 2, 4(i), 201, 202, 218, 220(a),
and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151,
152, 154(i), 201, 202, 218, 220(a), 403.
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
19. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act. A small-business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
20. Small Businesses. Nationwide, there are a total of
approximately 27.9 million small businesses, according to the SBA.
21. Wired Telecommunications Carriers. The SBA has developed a
small business size standard for Wired Telecommunications Carriers,
which consists of all such companies having 1,500 or fewer employees
Census data for 2007 shows that there were 31,996 establishments that
operated that year. Of those 31,996, 1,818 operated with more than 100
employees, and 30,178 operated with fewer than 100 employees. Thus,
under this size standard, the majority of firms can be considered
small.
22. Local Exchange Carriers (LECs). Neither the Commission nor the
SBA has developed a size standard for small businesses specifically
applicable to local exchange services. The closest applicable size
standard under SBA rules is for Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has 1,500 or
fewer employees. According to Commission data, Census data for 2007
shows that there were 31,996 establishments that operated that year. Of
those 31,996, 1,818 operated with more than 100 employees, and 30,178
operated with fewer than 100 employees. Consequently, the Commission
estimates that most providers of local exchange service are small
entities that may be affected by the rules and policies proposed in the
NPRM.
23. Incumbent Local Exchange Carriers (incumbent LECs). Neither the
[[Page 21900]]
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to incumbent local exchange
services. The closest applicable size standard under SBA rules is for
Wired Telecommunications Carriers. Under that size standard, such a
business is small if it has 1,500 or fewer employees. According to
Commission data, 1,307 carriers reported that they were incumbent local
exchange service providers. Of these 1,307 carriers, an estimated 1,006
have 1,500 or fewer employees and 301 have more than 1,500 employees.
Consequently, the Commission estimates that most providers of incumbent
local exchange service are small businesses that may be affected by
rules adopted pursuant to the NPRM.
24. We have included small incumbent LECs in this present RFA
analysis. As noted above, a ``small business'' under the RFA is one
that, inter alia, meets the pertinent small business size standard
(e.g., a telephone communications business having 1,500 or fewer
employees), and ``is not dominant in its field of operation.'' The
SBA's Office of Advocacy contends that, for RFA purposes, small
incumbent LECs are not dominant in their field of operation because any
such dominance is not ``national'' in scope. We have therefore included
small incumbent LECs in this RFA analysis, although we emphasize that
this RFA action has no effect on Commission analyses and determinations
in other, non-RFA contexts.
25. Competitive Local Exchange Carriers (competitive LECs),
Competitive Access Providers (CAPs), Shared-Tenant Service Providers,
and Other Local Service Providers. Neither the Commission nor the SBA
has developed a small business size standard specifically for these
service providers. The appropriate size standard under SBA rules is for
the category Wired Telecommunications Carriers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
According to Commission data, 1,442 carriers reported that they were
engaged in the provision of either competitive local exchange services
or competitive access provider services. Of these 1,442 carriers, an
estimated 1,256 have 1,500 or fewer employees and 186 have more than
1,500 employees. In addition, 17 carriers have reported that they are
Shared-Tenant Service Providers, and all 17 are estimated to have 1,500
or fewer employees. In addition, 72 carriers have reported that they
are Other Local Service Providers. Of the 72, seventy have 1,500 or
fewer employees and two have more than 1,500 employees. Consequently,
the Commission estimates that most providers of competitive local
exchange service, competitive access providers, Shared-Tenant Service
Providers, and Other Local Service Providers are small entities that
may be affected by rules adopted pursuant to the NPRM.
26. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA has developed a size standard for small businesses specifically
applicable to interexchange services. The closest applicable size
standard under SBA rules is for Wired Telecommunications Carriers.
Under that size standard, such a business is small if it has 1,500 or
fewer employees. According to Commission data, 359 companies reported
that their primary telecommunications service activity was the
provision of interexchange services. Of these 359 companies, an
estimated 317 have 1,500 or fewer employees and 42 have more than 1,500
employees. Consequently, the Commission estimates that the majority of
interexchange service providers are small entities that may be affected
by rules adopted pursuant to the NPRM.
27. Prepaid Calling Card Providers. Neither the Commission nor the
SBA has developed a small business size standard specifically for
prepaid calling card providers. The appropriate size standard under SBA
rules is for the category Telecommunications Resellers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
Census data for 2007 show that 1,523 firms provided resale services
during that year. Of that number, 1,522 operated with fewer than 1000
employees and one operated with more than 1,000. Thus, under this
category and the associated small business size standard, the majority
of these prepaid calling card providers can be considered small
entities. According to Commission data, 193 carriers have reported that
they are engaged in the provision of prepaid calling cards. Of these,
an estimated all 193 have 1,500 or fewer employees and none have more
than 1,500 employees. Consequently, the Commission estimates that the
majority of prepaid calling card providers are small entities that may
be affected by rules adopted pursuant to the NPRM.
28. Local Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. Census data for 2007 show that 1,523 firms provided resale
services during that year. Of that number, 1,522 operated with fewer
than 1000 employees and one operated with more than 1,000. Thus, under
this category and the associated small business size standard, the
majority of these local resale providers can be considered small
entities. According to Commission data, 213 carriers have reported that
they are engaged in the provision of local resale services. Of these,
an estimated 211 have 1,500 or fewer employees and two have more than
1,500 employees. Consequently, the Commission estimates that the
majority of local resellers are small entities that may be affected by
rules adopted pursuant to the NPRM.
29. Toll Resellers. The SBA has developed a small business size
standard for the category of Telecommunications Resellers. Under that
size standard, such a business is small if it has 1,500 or fewer
employees. Census data for 2007 show that 1,523 firms provided resale
services during that year. Of that number, 1,522 operated with fewer
than 1000 employees and one operated with more than 1,000. Thus, under
this category and the associated small business size standard, the
majority of these toll resale providers can be considered small
entities. According to Commission data, 881 carriers have reported that
they are engaged in the provision of toll resale services. Of these, an
estimated 857 have 1,500 or fewer employees and 24 have more than 1,500
employees. Consequently, the Commission estimates that the majority of
toll resellers are small entities that may be affected by rules adopted
pursuant to the NPRM.
30. Other Toll Carriers. Neither the Commission nor the SBA has
developed a size standard for small businesses specifically applicable
to Other Toll Carriers. This category includes toll carriers that do
not fall within the categories of interexchange carriers, operator
service providers, prepaid calling card providers, satellite service
carriers, or toll resellers. The closest applicable size standard under
SBA rules is for Wired Telecommunications Carriers. Under that size
standard, such a business is small if it has 1,500 or fewer employees.
Census data for 2007 shows that there were 31,996 establishments that
operated that year. Of those 31,996, 1,818 operated with more than 100
employees, and 30,178 operated with fewer than 100 employees. Thus,
under this category and the associated small business size standard,
the majority of Other Toll Carriers can be considered small. According
to Commission data, 284 companies reported that their primary
telecommunications service activity was
[[Page 21901]]
the provision of other toll carriage. Of these, an estimated 279 have
1,500 or fewer employees and five have more than 1,500 employees.
Consequently, the Commission estimates that most Other Toll Carriers
are small entities that may be affected by the rules and policies
adopted pursuant to the NPRM.
31. Wireless Telecommunications Carriers (except Satellite). Since
2007, the SBA has recognized wireless firms within this new, broad,
economic census category. Prior to that time, such firms were within
the now-superseded categories of Paging and Cellular and Other Wireless
Telecommunications. Under the present and prior categories, the SBA has
deemed a wireless business to be small if it has 1,500 or fewer
employees. For this category, census data for 2007 show that there were
11,163 establishments that operated for the entire year. Of this total,
10,791 establishments had employment of 999 or fewer employees and 372
had employment of 1000 employees or more. Thus, under this category and
the associated small business size standard, the Commission estimates
that the majority of wireless telecommunications carriers (except
satellite) are small entities that may be affected by our proposed
action.
32. Similarly, according to Commission data, 413 carriers reported
that they were engaged in the provision of wireless telephony,
including cellular service, Personal Communications Service (PCS), and
Specialized Mobile Radio (SMR) Telephony services. Of these, an
estimated 261 have 1,500 or fewer employees and 152 have more than
1,500 employees. Consequently, the Commission estimates that
approximately half or more of these firms can be considered small.
Thus, using available data, we estimate that the majority of wireless
firms can be considered small.
33. Cable and Other Program Distribution. Since 2007, these
services have been defined within the broad economic census category of
Wired Telecommunications Carriers; that category is defined as follows:
``This industry comprises establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired telecommunications networks. Transmission
facilities may be based on a single technology or a combination of
technologies.'' The SBA has developed a small business size standard
for this category, which is: All such firms having 1,500 or fewer
employees. Census data for 2007 shows that there were 31,996
establishments that operated that year. Of those 31,996, 1,818 operated
with more than 100 employees, and 30,178 operated with fewer than 100
employees. Thus, under this size standard, the majority of firms
offering cable and other program distribution services can be
considered small and may be affected by rules adopted pursuant to the
NPRM.
34. Cable Companies and Systems. The Commission has developed its
own small business size standards, for the purpose of cable rate
regulation. Under the Commission's rules, a ``small cable company'' is
one serving 400,000 or fewer subscribers, nationwide. Industry data
indicate that, of 1,076 cable operators nationwide, all but eleven are
small under this size standard. In addition, under the Commission's
rules, a ``small system'' is a cable system serving 15,000 or fewer
subscribers. Industry data indicate that, of 6,635 systems nationwide,
5,802 systems have under 10,000 subscribers, and an additional 302
systems have 10,000-19,999 subscribers. Thus, under this second size
standard, most cable systems are small and may be affected by rules
adopted pursuant to the NPRM.
35. All Other Telecommunications. The Census Bureau defines this
industry as including ``establishments primarily engaged in providing
specialized telecommunications services, such as satellite tracking,
communications telemetry, and radar station operation. This industry
also includes establishments primarily engaged in providing satellite
terminal stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems.
Establishments providing Internet services or Voice over Internet
Protocol (VoIP) services via client-supplied telecommunications
connections are also included in this industry.'' The SBA has developed
a small business size standard for this category; that size standard is
$30.0 million or less in average annual receipts. According to Census
Bureau data for 2007, there were 2,623 firms in this category that
operated for the entire year. Of these, 2478 establishments had annual
receipts of under $10 million and 145 establishments had annual
receipts of $10 million or more. Consequently, we estimate that the
majority of these firms are small entities that may be affected by our
action.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
36. In the NPRM, the Commission proposes to require covered
providers to report to the Commission the monthly call answer rate to
each rural OCN to which 100 or more calls were attempted during the
calendar month and the nonrural monthly overall average once per
calendar quarter. Compliance with these reporting obligations may
affect small entities, and may include new administrative processes.
37. In the NPRM, the Commission also proposes a rule requiring that
an originating facilities-based provider or the first facilities-based
provider in the call path record for each long-distance call it
attempts, in addition to calling party number, called party number,
date and time: (1) Whether the call attempt was handed off to an
intermediate provider and, if so, which intermediate provider; (2)
whether the call attempt was going to a rural carrier and, if so, which
rural carrier as identified by its OCN; (3) whether the call attempt
was interstate; and (4) whether the call attempt was answered. The
Commission also proposes to require these providers to retain these
records for a period including the six most recent calendar months.
Compliance with these reporting obligations may affect small entities,
and may include new administrative processes. We note parenthetically
that in the NPRM, the Commission seeks comment on the benefits and
burdens of these proposals, and on whether the categories of records to
be retained are normally collected in the ordinary course of business.
E. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
38. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) The establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rules for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
39. The Commission is aware that some of the proposals under
[[Page 21902]]
consideration will impact small entities by imposing costs and
administrative burdens. For this reason, the NPRM proposes a number of
measures to minimize or eliminate the costs and burdens generated by
compliance with the proposed rules.
40. First, The NPRM proposes to require only those originating
long-distance providers and other covered providers with more than
100,000 retail long-distance subscribers (business or residential) to
retain the basic information on call attempts and to periodically
report the summary analysis of that information to the Commission.
41. The NPRM proposes two safe harbor provisions that could reduce
the economic impact on small entities. In the first safe harbor, the
NPRM proposes to relieve covered providers of their reporting and
retention obligations if they certify that: They restrict by contract
directly connected intermediate providers to no more than one
additional intermediate provider in the call path before the call
reaches the terminating provider; any nondisclosure agreement with an
intermediate provider permits the originating provider to reveal the
intermediate provider's identity to the Commission and to any rural
carrier whose incoming long-distance traffic is affected by the
intermediate provider's performance; and they have a process in place
to monitor the performance of their intermediate providers in
completing calls to individual rural telephone companies as identified
by Operating Carrier Number.
42. In the second safe harbor, the NPRM also proposes to reduce to
three months a covered provider's record retention obligations and
eliminate its reporting obligations if it certifies annually that for
each of the preceding 12 months: (1) Its average call answer rate for
all rural carriers to which the provider attempted more than 100 calls
in a month was no more than 2 percent less than the average call answer
rate for all calls it placed to nonrural carriers in the same month;
and (2) the call answer rates for 95 percent of those rural carriers to
which it attempted more than 100 calls were no more than 3 percent
below the average rural call answer rate. A covered provider must also
certify that it has a process in place to investigate its performance
in completing calls to individual rural telephone companies (as
identified by Operating Carrier Number) for which the call answer rate
is more than 3 percent below the average of the rural call answer rate
for all rural telephone companies to which it attempted more than 100
calls.
43. In the NPRM, the Commission also seeks comment on whether the
proposed rules should include a sunset provision to account for the
possibility that reforms to the intercarrier compensation rules may
alleviate many of the rural call completion problems addressed in the
NPRM. Such a sunset provision could limit the costs and burdens of
compliance with the proposed rules by establishing an end date for
those costs and burdens.
44. The Commission expects to consider the economic impact on small
entities, as identified in comments filed in response to the NPRM, in
reaching its final conclusions and taking action in this proceeding.
The proposed ring signaling integrity requirements in the NPRM could
have an economic impact on both small and large entities. However, the
Commission believes that any impact of such requirements is outweighed
by the accompanying benefits to the public and to the operation and
efficiency of the long distance industry.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
None.
V. Ordering Clauses
45. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1, 2, 4(i), 201, 202, 218, 220(a), and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i),
201, 202, 218, 220(a), 403, this Notice of Proposed Rulemaking is
adopted.
46. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, SHALL SEND a
copy of this Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
List of Subjects in 47 CFR Part 64
Communications common carriers, Reporting and recordkeeping
requirements, Telecommunications, Telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 64 as follows:
PART 64-- MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
0
1. The authority citation for part 64 continues to read as follows:
Authority: 47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L.
104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222,
225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax
Relief and Job Creation Act of 2012, Pub. L. 112-96, unless
otherwise noted.
0
2. Add subpart V to part 64 to read as follows:
Subpart V--Data Retention and Reporting of Call Answer Rates
Affecting Long Distance Telephone Calls to Rural Areas
Sec.
64.2101 Definitions.
64.2103 Retention of call attempt records.
64.2105 Report of call answer rates.
64.2107 Exceptions from retention and reporting requirements.
Authority: 47 U.S.C. 151, 152, 154(i), 202(a), 220(a), 403.
Sec. 64.2101 Definitions.
(a) Answered call. The term ``answered call'' means a call that is
answered by the called party, including by voicemail service, facsimile
machine or answering machine.
(b) Attempted call. The term ``attempted call'' means a call that
results in transmission by the reporting entity toward the terminating
provider of the initial call setup message, regardless of the voice
call signaling and transmission technology used.
(c) Call answer rate. The term ``call answer rate'' means the
number of attempted calls that result in an answered call divided by
the total number of attempted calls, expressed as a percentage.
(d) Facilities-based provider. The term ``facilities-based
provider'' excludes providers that do not originate long distance calls
using their own equipment and includes interconnected VoIP providers,
for purposes of this part.
(e) Intermediate provider. The term ``intermediate provider'' has
the same meaning as in Sec. 64.1600(f).
(f) Long distance voice service. The term ``long distance voice
service'' includes interstate inter-LATA, intrastate inter-LATA,
interstate interexchange, intrastate interexchange, inter-MTA
interstate and inter-MTA intrastate voice services.
(g) Operating company number (OCN). The term ``operating company
number'' means a four-place alphanumeric code that uniquely
[[Page 21903]]
identifies a provider of local telecommunications service.
(h) Originating long distance voice service provider (originating
provider). The term ``originating long distance voice service
provider'' or ``originating provider'' includes a local exchange
carrier as defined in Sec. 64.4001(d), an interexchange carrier as
defined in Sec. 64.4001(e), a commercial mobile radio service provider
as defined in Sec. 20.3 of this chapter, and an interconnected voice
over Internet Protocol (VoIP) provider as defined in 47 U.S.C. 153(25).
(i) Rural CLEC. The term ``rural CLEC'' has the same meaning as in
Sec. 61.26(a)(6) of this chapter.
(j) Rural OCN. The term ``rural OCN'' means an operating carrier
number that uniquely identifies a rural telephone company. The term
``nonrural OCN'' means an operating carrier number that does not
identify a rural telephone company.
(k) Rural telephone company. The term ``rural telephone company''
has the same meaning as in Sec. 51.5 of this chapter.
Sec. 64.2103 Retention of call attempt records.
Except as described in Sec. 64.2107, an originating long distance
voice service provider (or first facilities-based provider when the
originating provider is not facilities-based) shall retain records of
attempted calls in a readily retrievable form for a period that
includes the six (6) most recent complete calendar months:
(a) Information shall be retained for each attempted call to a
rural telephone company (including rural CLEC) and nonrural LEC
(including nonrural CLEC). An attempted call that is returned by an
intermediate provider to the originating provider and re-assigned shall
count as a single attempted call.
(b) The information contained in each ``record'' of an attempted
call shall include:
(1) Calling party number;
(2) Called party number;
(3) Date;
(4) Time;
(5) An indication whether the call was handed off to an
intermediate provider or not and, if so, which intermediate provider;
(6) An indication whether the called party number was assigned to a
rural telephone company or not and, if so, the OCN of the rural
telephone company;
(7) An indication whether the call was interstate or intrastate;
and
(8) An indication whether the call was answered or not.
Sec. 64.2105 Report of call answer rates.
Except as described in Sec. 64.2107, each originating long
distance voice service provider (or its first facilities-based provider
when the originating provider is not facilities-based) shall submit a
report to the Commission in electronic form not later than the 15th day
of the first month following the end of each calendar quarter. The
information contained in the report shall include for each month in
that quarter:
(a) For each rural OCN to which more than 100 calls were attempted
during the month, the OCN, the state, the number of attempted calls,
the number of attempted calls that were answered, and the call answer
rate;
(b) For rural OCNs to which more than 100 calls were attempted
during the month (all such OCNs in the aggregate), the total number of
attempted calls, the total number of attempted calls that were
answered, and the call answer rate; and
(c) For nonrural OCNs (in the aggregate), the total number of
attempted calls, the total number of attempted calls that were
answered, and the call answer rate.
Sec. 64.2107 Exceptions from retention and reporting requirements.
(a) An originating long distance voice service provider with
100,000 or fewer total retail long distance subscribers (business and
residential combined) is not required to retain records of attempted
calls or to report call answer rates as provided in this subpart. A
first facilities-based provider for originating long distance service
providers that do not report, and that provides service directly or
indirectly to 100,000 or fewer retail long distance subscribers, is not
required to retain records and to report as provided in this subpart.
(b) An originating provider or a first facilities-based provider
that makes one of the following annual certifications is not required
to report rural call completion rates to the Commission for one year
following such certification. Providers filing Certification in
paragraph (b)(1) of this section are not required to retain records of
attempted calls, and providers filing Certification in paragraph (b)(2)
of this section are required to retain records of attempted calls for
only the three (3) most recent complete calendar months.
(1) Certification of Intermediate Provider Management. The chief
executive officer (CEO), chief financial officer (CFO), or other senior
executive of an originating long distance voice service provider or
first facilities-based provider with first-hand knowledge of the
accuracy and completeness of the information provided, certifies as
follows: I -------- (name) -------- (title), an officer of --------
(entity), certify that ------------ (entity) restricts by contract any
intermediate provider to which a call is directed by (entity) from
permitting more than one additional intermediate provider in the call
path before the call reaches the terminating provider. I certify that
any nondisclosure agreement with an intermediate provider permits ----
---- (entity) to reveal the identity of the intermediate provider to
the Commission and to the rural telephone company(ies) whose incoming
long-distance calls are affected by the intermediate provider's
performance. I certify that -------- (entity) has a process in place to
monitor the performance of its intermediate providers in completing
calls to individual rural telephone companies as identified by
Operating Carrier Number.
(2) Certification of Rural Call Performance. The chief executive
officer (CEO), chief financial officer (CFO), or other senior executive
of an originating long distance voice service provider or first
facilities-based provider with first-hand knowledge of the accuracy and
completeness of the information provided, certifies as follows:
I -------- (name) -------- (title), an officer of --------
(entity), certify that for each of the previous 12 full calendar
months, -------- (entity) has met the following performance standard:
the average of the call answer rates for all rural telephone companies
as identified by Operating Carrier Number to which -------- (entity)
attempted more than 100 calls in a month was no more than 2 percent
less than the average call answer rate for all calls -------- (entity)
placed to nonrural LECs in the same month, and the call answer rates
for 95 percent of those rural telephone companies to which --------
(entity) attempted more than 100 calls were no more than 3 percent
below the average rural call answer rate. I certify that --------
(entity) has a process in place to investigate its performance in
completing calls to individual rural telephone companies as identified
by Operating Carrier Number for which the call answer rate is more than
3 percent below the average of the rural call answer rate for all rural
telephone companies to which -------- (entity) attempted more than 100
calls.
0
3. Add subpart W to part 64 to read as follows:
Subpart W--Ring Signaling Integrity
Sec.
64.2201 Ringing indication requirements.
[[Page 21904]]
Authority: 47 U.S.C. 151, 152, 154(i), 201(b).
Sec. 64.2201 Ringing indication requirements.
(a) Telecommunications carriers and providers of interconnected
Voice over Internet Protocol (VoIP) services, when originating
interstate or intrastate traffic on the public switched telephone
network (PSTN) or originating interstate or intrastate traffic that is
destined for the PSTN, shall not generate a ringing indication locally
that is conveyed to the calling party until the terminating provider
has signaled that the called party is being alerted to an incoming
call, such as by ringing. If the terminating provider signals that the
called party is being alerted and provides an audio tone or
announcement, originating providers are required to cease any locally-
generated audible tone or announcement and convey the terminating
provider's tone or announcement to the calling party. The scope of this
provision includes any voice call signaling and transmission
technologies.
(b) Intermediate providers within an interstate or intrastate call
path that originates and/or terminates on the PSTN must return
unaltered to providers in the call path any signaling information that
indicates that the terminating provider is alerting the called party,
such as by ringing. An intermediate provider may not generate signaling
information that indicates the terminating provider is alerting the
called party unless it has received such an indication from the
terminating provider. Intermediate providers must also return unaltered
any audio tone or announcement provided by the terminating provider.
The scope of this provision includes any voice call signaling and
transmission technologies.
[FR Doc. 2013-08527 Filed 4-11-13; 8:45 am]
BILLING CODE 6712-01-P