[Federal Register Volume 80, Number 186 (Friday, September 25, 2015)]
[Proposed Rules]
[Pages 57768-57782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-23623]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 51 and 63

[GN Docket No. 13-5, RM-11358; WC Docket No. 05-25, RM-10593; FCC 15-
97]


Technology Transitions, Policies and Rules Governing Retirement 
of Copper Loops by Incumbent Local Exchange Carriers and Special Access 
for Price Cap Local Exchange Carriers

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Commission takes further action on a 
rulemaking it initiated in January 6, 2015, to help guide and 
accelerate the technological revolutions that are underway involving 
the transitions from networks based on TDM circuit-switched voice 
services running on copper loops to all-IP multi-media networks using 
copper, co-axial cable, wireless, and fiber as physical infrastructure. 
This Further Notice of Proposed Rulemaking (FNPRM) is only one of a 
series of Commission actions to protect core values and ensure the 
success of these technology transitions. In this FNPRM, we take steps 
to ensure that competition continues to thrive and to protect consumers 
during transitions. These steps will help to ensure that the technology 
transitions continue to succeed.

DATES: Submit comments on or before October 26, 2015. Submit reply 
comments on or before November 24, 2015.

ADDRESSES: You may submit comments, identified by GN Docket No. 13-5, 
RM-11358, WC Docket No. 05-25, RM-10593, by any of the following 
methods:
     Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     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.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Michele Levy Berlove, Wireline 
Competition Bureau, Competition Policy Division, (202) 418-1477, or 
send an email to [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking (FNPRM) in GN Docket No. 13-5, 
RM-11358, WC Docket No. 05-25, RM-10593, FCC 15-97, adopted August 6, 
2015 and released August 7, 2015. The full text of this document is 
available for public inspection during regular business hours in the 
FCC Reference Information Center, Portals II, 445 12th Street SW., Room 
CY-A257, Washington, DC 20554. It is available on the Commission's Web 
site at http://www.fcc.gov.

I. Introduction

    1. Communications networks are rapidly transitioning away from the 
historic provision of time-division multiplexed (TDM) services running 
on copper to new, all-Internet Protocol (IP) multimedia networks using 
copper, co-axial cable, wireless, and fiber as physical infrastructure. 
Our actions today further the technology transitions underway in our 
Nation's fixed communications networks that offer the prospect of 
innovative and improved services to consumers and businesses alike. The 
core goals of the January 2014 Technology Transitions Order frame our 
approach here. In the Technology Transitions Order, we emphasized the 
importance of speeding market-driven technological transitions and 
innovations while preserving the core statutory values as codified by 
Congress: competition, consumer protection, universal service, and 
public safety. Furthering these core values will accelerate customer 
adoption of technology transitions. Today, we take the next step in 
advancing longstanding competition and consumer protection policies on 
a technologically-neutral basis in order to ensure that the deployment 
of innovative and improved communications services can continue without 
delay.
    2. Industry is investing aggressively in modern telecommunications 
networks and services. Overall, according to data supplied by USTelecom 
and AT&T, capital expenditures by broadband providers topped $75 
billion in 2013 and continue to increase. AT&T recently announced that 
by the year 2020, 75 percent of its network will be controlled by 
software. To do this, AT&T is undergoing a massive effort to train 
about 130,000 of its employees on software-defined networking 
architecture and protocols. AT&T has also expanded its wireline IP 
broadband network to 57 million customer locations, as well as extended 
fiber to 725,000 business locations. Moreover, Verizon passes more than 
19.8 million premises with its all-fiber network--the largest such 
network in the country--and it projects that soon about 70 percent of 
the premises in its landline territory will have access to all-fiber 
facilities. Verizon too has announced an SDN-based strategy ``to 
introduce new operational efficiencies and allow for the enablement of 
rapid and flexible service delivery to Verizon's customers.'' And 
CenturyLink has announced the launch of 1 Gbps broadband service to 16 
cities. According to recent reports, CenturyLink's national fiber 
network upgrade has expanded availability of CenturyLink's gigabit 
broadband services to nearly 490,000 business locations. These are just 
a few of many examples in which industry is investing heavily to bring 
the benefits of new networks and services to customers of all sizes.
    3. We recognize that the success of the technology transitions is 
dependent, among other things, on clear and certain direction from the 
Commission that preserves the historic values that Congress has 
incorporated in the Communications Act of 1934, as amended (the Act). 
In the January 6, 2015 NPRM, 80 FR 450, we sought comment on limited 
oversight that

[[Page 57769]]

would encourage transitions that could otherwise be delayed if a 
portion of consumers were left behind or competition were allowed to 
diminish--recognizing that the transitions that are underway are 
organic processes without a single starting or stopping point. Building 
on that NPRM, in this item we support the transitions by adopting 
limited and targeted regulation to preserve competition and to protect 
consumers, especially those in vulnerable populations who have not yet 
voluntarily migrated from plain old telephone service (POTS) and other 
legacy services. In taking these steps, we seek to avoid the need for 
future regulation and dispute resolution that could cause delays down 
the road. Carriers involved in the historic transitions have made clear 
their intention to protect consumers and preserve a competitive 
marketplace going forward, and the pro-transition rules we adopt today 
are consistent with those mutually shared goals.
    4. Establishing Clear Standards to Streamline Transitions to an 
All-IP Environment. Having established that section 214's 
discontinuance provisions apply to a service based on a totality-of-
the-circumstances functional evaluation, we believe it is prudent to 
provide additional guidance so that consumers and providers are clear 
on the meaning of the section 214 standard. Building on the record 
developed in response to the -NPRM, in this FNPRM we propose specific 
criteria for the Commission to use in evaluating applications to 
discontinue retail services pursuant to section 214 of the Act. We 
believe all stakeholders will benefit from an additional round of 
focused comment on our specific proposals. As we stated previously, 
adopting specific criteria will enable the Commission to ensure that we 
can carry out our statutorily-mandated responsibilities in a 
technology-neutral manner and provide clear up-front guidance that will 
minimize complications when carriers seek approval for large-scale 
discontinuances. With clear standards in place, carriers will not have 
to guess as to how they can obtain approval to discontinue TDM services 
once they are ready to do so.

II. Further Notice Of Proposed Rulemaking

A. Establishing Clear Standards To Streamline Transitions to an All-IP 
Environment

    5. We seek comment on specific proposals for possible criteria 
against which to measure ``what would constitute an adequate substitute 
for retail services that a carrier seeks to discontinue, reduce, or 
impair in connection with a technology transition (e.g., TDM to IP, 
wireline to wireless).'' We sought comment on this topic in the Notice, 
asking wide-ranging questions, and believe that the specific proposals 
that we raise here will facilitate development of a sufficient record 
to allow us to fully establish highly effective, clear, and technology-
neutral criteria. The Commission remains dedicated to providing 
carriers the guidance and clarity they need to implement new 
technologies at scale as quickly as possible. We will benefit from more 
targeted input in order to adopt rules that are carefully tailored to 
address the issues presented by the ongoing technology transitions 
process and that will stand the test of time.
    6. Our purpose is to adopt clear criteria that will eliminate 
uncertainty that could potentially impede the industry from actuating a 
rapid and prompt transition to IP and wireless technology. We recognize 
that our existing case-by-case approach may not provide sufficient 
guidance as to what constitutes an adequate substitute with regard to 
cutting-edge technology transitions, and we recognize that as a result 
carriers may be more inclined to pursue half-measures that merely 
``test the water.'' Such outcomes reduce innovation and are 
inconsistent with our overarching goal of advancing the public interest 
and ensuring ``that we protect consumers, competition, and public 
safety.''
    7. The Commission always has applied certain criteria in evaluating 
the adequacy of alternative services in the context of section 214 
discontinuance applications. The Commission has engaged in a highly 
fact-specific analysis based on the situation presented and has not 
codified any specific criteria by which it evaluates the adequacy of 
substitute services. The record we received in response to questions in 
the NPRM about adequate substitutes included a range of public interest 
organizations, state utility commissions, competitive LECs, 
telecommunications service consumers, and others advocating that we 
should define attributes of an adequate substitute, and other 
commenters, particularly larger incumbent LECs, urging us not to do so. 
Incumbent LECs believe that defining the attributes of an adequate 
substitute service would discourage carriers from innovating. A number 
of these commenters argue that the Commission should encourage the 
development of industry best practices.
    8. Commenters have not swayed us from our belief that establishing 
criteria for evaluating the adequacy of replacement services will 
benefit industry and consumers alike by providing certainty. Indeed, we 
believe that by establishing and codifying such criteria, we provide 
transparency and certainty in an area that has been subject to case-by-
case evaluation without formal rule-based guidance. We believe that it 
is important to ensure that key aspects of service such as connection 
persistence and quality, 9-1-1 service, and service for individuals 
with disabilities remain available. We agree with Public Knowledge that 
establishing clear principles that ensure the availability of key 
functions post-transition will likely increase public acceptance of 
alternative technologies, thus decreasing resistance to services based 
on next-generation technologies.
    9. We agree with incumbent LECs that the Commission must evaluate 
the availability of alternative services from sources other than the 
carrier seeking section 214 discontinuance authority. Moreover, there 
seems to be a misplaced belief that the Commission will automatically 
categorize any change in underlying technology or facility as a 
discontinuance, reduction, or impairment of service for which a carrier 
must seek Commission authorization under section 214. It is important 
to note that the Commission must evaluate the adequacy of those 
alternative services using the same criteria as those applied to any 
replacement service offered by the discontinuing carrier. We also 
reiterate that the availability of adequate substitute services is just 
one of five factors the Commission looks at in evaluating section 214 
discontinuance applications under existing precedent, to be balanced 
against the other factors in determining whether the public convenience 
and necessity will be adversely affected by discontinuance of the 
service at issue. In evaluating an application for discontinuance 
authority under section 214(a), the Commission considers five factors 
that are intended to balance the interests of the carrier seeking 
discontinuance authority and the affected user community: (1) The 
financial impact on the common carrier of continuing to provide the 
service; (2) the need for the service in general; (3) the need for the 
particular facilities in question; (4) the existence, availability, and 
adequacy of alternatives; and (5) increased charges for alternative 
services, although this factor may be outweighed by other 
considerations. The reasonably comparable wholesale

[[Page 57770]]

access interim rule that we adopt in the Order applies as a condition 
on certain grants of discontinuance authority, and as such it applies 
separately from and subsequent to this balancing test. We therefore 
believe that adoption of criteria by which to measure the adequacy of 
available substitute services, which we will look to as part of a 
larger evaluation of the circumstances surrounding a proposed 
discontinuance, will not serve to discourage carriers from seeking to 
innovate and develop new communications technologies.
1. Proposed Criteria
    10. Consistent with the NPRM, we tentatively conclude that several 
of the criteria proposed by Public Knowledge, listed below, are the 
appropriate criteria for the Commission to consider in determining 
whether to authorize carriers to discontinue a legacy retail service in 
favor of a retail service based on a newer technology. These proposed 
criteria align the Commission's dual incentives of: (1) Meeting the 
statutory obligations to protect consumers, competition, and the public 
safety; and (2) resolving discontinuance applications as briskly as 
possible. As Public Knowledge et al. have noted, ``[w]hen a new 
technology can be trusted to offer the same or better service than what 
customers had before (at the same or better price), customers will have 
no reason to object to the transition.'' We find that having clear, 
established criteria is consistent with the Commission's obligations 
and also gives applicants the information they need to ultimately be 
more responsive to the Commission's concerns regarding adequate 
substitutes.
    11. Specifically, we propose that a carrier seeking to discontinue 
an existing retail service in favor of a retail service based on a 
newer technology must demonstrate that any substitute service offered 
by the carrier or alternative services available from other providers 
in the affected service area meet the following criteria in order for 
the section 214 application to be eligible for an automatic grant 
pursuant to Section 63.71(d) of the Commission's rules: (1) Network 
capacity and reliability; (2) service quality; (3) device and service 
interoperability, including interoperability with vital third-party 
services (through existing or new devices); (4) service for individuals 
with disabilities, including compatibility with assistive technologies; 
(5) PSAP and 9-1-1 service; (6) cybersecurity; (7) service 
functionality; and (8) coverage. Certain commenters support the ten 
attributes proposed by Public Knowledge. One of those supporters 
suggests reworking and combining those criteria to focus on retail 
services, consistent with the Commission's stated emphasis in the NPRM, 
as follows: ``(1) Reliable and accurate access to E911; (2) constant 
availability, including during storms and emergencies; (3) adequate 
call quality; (4) compatibility with health and safety services that 
use the network; (5) adequate data transmission capability; and (6) 
affordable to consumers.'' We seek detailed comment on these and other 
possible criteria below. Although much of the discussion on the 
proposed criteria focuses on residential end users, we also recognize 
that the perspective of commercial stakeholders, including enterprise 
end users, is vitally important. We therefore seek comment from these 
stakeholders regarding how and to what extent the proposed criteria 
inform their decision-making process. Are their service concerns 
identical to those of residential consumers? If not, should different 
or additional service metrics be considered for their purposes?
    12. As an initial matter, we seek comment on when any criteria that 
we adopt should apply. Should their application be dependent on the 
nature of the existing service and the newer service to which the 
carrier is transitioning? What should qualify as a ``service based on a 
newer technology''? Rather than framing the draft rule in terms of 
discontinuance of an ``existing'' service in favor of a ``service based 
on a newer technology,'' should we instead frame it in terms of 
discontinuance of ``legacy service,'' and if so how should the term 
``legacy service'' be defined? Should the criteria apply where the 
replacement service offered by the requesting carrier or the 
alternative services available from other providers in the relevant 
service area are IP-based or wireless? Should they apply where the 
replacement or alternative service is based on next-generation 
technologies? If so, how should we define next-generation technologies? 
For purposes of this FNPRM, we will simply refer to the relevant 
situations in which a carrier seeks to discontinue an existing retail 
service in favor of a next-generation service as ``technology 
transitions,'' but we do not intend to suggest that we have reached a 
conclusion on when any criteria that we have adopted will apply.
    13. We further tentatively conclude that if a carrier certifies in 
its application that it satisfies all of these criteria, then the 
application will be eligible for automatic grant pursuant to section 
63.71(d) of the Commission's rules as long as other already-adopted 
applicable requirements for automatic grant are satisfied. However, if 
the carrier discontinuing a service during a technology transition is 
unable to file such a certification, or if comments or objections call 
into question whether a substitute or alternative service satisfies all 
of the criteria we adopt, then we would not automatically grant the 
application. Instead, the carrier would be required to submit 
information demonstrating the degree to which it meets or does not meet 
each factor, and we would weigh this information in our evaluation of 
whether a replacement service offered by the applicant or an 
alternative service offered by another provider in the relevant service 
area qualifies as an adequate substitute for the existing service for 
which the carrier seeks discontinuance authorization. We propose that 
for applications not subject to automatic grant, the adequate 
substitute evaluation would retain its traditional role as a part of 
our multi-factor determination of whether to grant a discontinuance 
application. In other words, outside of the automatic grant context, we 
propose that we not alter the role that the existence, availability, 
and adequacy of alternatives plays in our analysis; rather, we propose 
to channel that analysis through the criteria that we will articulate. 
We seek comment on this proposed approach. We recognize that with 
respect to the question of whether automatic grant is available, this 
proposal affords the adequate substitute factor a new primacy in the 
section 214 analysis. However, we anticipate that this approach is 
necessary to ensure consumer protection as technologies transition by 
providing the Commission sufficient time to evaluate applications that 
may not provide a completely adequate substitute. Further, this 
approach permits industry to pursue transitions flexibly because it 
does not mandate that all criteria must be met and continues to 
evaluate the adequacy of substitutes as merely one factor in the 
overall discontinuance analysis.
    14. To the extent commenters believe a different approach is 
preferable, they should describe with specificity the alternative and 
address how it would adequately protect consumers while providing 
sufficient industry flexibility. To the extent commenters argue that 
not all of the criteria should be considered mandatory in order for an 
application to qualify for automatic granting, they should identify 
which factors would not be mandatory. If we remove an application from 
automatic grant, we propose weighing compliance with the criteria as a 
part of our overall multi-factor analysis of whether to approve a

[[Page 57771]]

discontinuance application, and we seek comment on this proposal. 
Should we require that one replacement or alternative service satisfy 
every criterion we adopt in order to qualify for automatic grant, or is 
it sufficient that multiple alternative services are available which 
collectively satisfy all of the adopted criteria? We also seek comment 
on the costs and benefits of adopting a rule consistent with our 
tentative conclusion and on any other proposals suggested in the 
record. We seek comment on whether requiring this multi-factored 
showing from the carrier will promote or deter innovation or 
competition.
    15. Where a carrier is seeking to establish the adequacy of 
alternative retail services in the context of a section 214 
discontinuance application by certifying its compliance will all of the 
criteria such that its application may be eligible for automatic grant, 
we further tentatively conclude that the certification should be 
executed by an officer or other authorized representative of the 
company and be accompanied by a detailed statement explaining the basis 
for such certification. The certification would be subject to the 
requirements of section 1.16 of the Commission's rules and be 
subscribed to as true under penalty of perjury in substantially the 
form set forth in the rule. We seek comment on whether such an approach 
would be consistent with the objectives of the revised service 
discontinuance process, particularly in evaluating the adequacy of 
alternative services in the context of Section 214 discontinuance 
applications.
    16. We tentatively conclude that in each case in which a carrier 
must demonstrate the existence of an adequate substitute service, the 
qualifying service can be a service the carrier offers, or can be an 
existing service offered by third parties. Under our proposal, 
references in this sub-section to ``demonstrating'' or otherwise 
showing that a criterion is met encompass demonstration via 
certification where the carrier is able to seek eligibility for 
automatic grant or, otherwise, demonstration via the submission of 
evidence and information. We also tentatively conclude that a showing 
as to a first-party or a third-party service will be treated equally, 
i.e., the criteria would not apply more stringently in one case than 
the other. We seek comment on these tentative conclusions and on 
possible alternatives. Would another approach be consistent with our 
precedent? Should a carrier be permitted to rely on one substitute 
service as to some factors and a different substitute service as to 
other factors, or should it be required to show that there is one 
service that is a fully adequate substitute for the discontinued 
service?
    17. We would prefer to adopt bright-line objective criteria that 
can be applied on a national basis instead of requiring localized 
testing of the service to be discontinued and/or the substitute 
service. We recognize that the criteria that we propose may not fully 
achieve this goal because of the lack of specific recommendations 
regarding objective metrics in the record. We further recognize that a 
localized testing-based approach may be incompatible with our proposal 
to allow parties to file a simple certification at the time of the 
application to allow potential automatic grant. We urge all interested 
parties to provide bright-line objective criteria to the maximum extent 
possible. For instance, what metrics or standards are incorporated into 
large commercial or governmental contracts regarding quality of 
service? However, we caution that we intend to adopt criteria and will 
adopt a localized testing-based regime if we deem it necessary in the 
absence of a workable national framework. We seek comment on the 
relative benefits of objective bright-line criteria and a localized 
testing approach in this context. If we do adopt a localized testing-
based approach, how long a period of testing should we require for the 
discontinued and/or substitute service?
    18. We also seek to further develop the record on whether the 
application of these criteria should be dependent on the nature of the 
legacy service and the newer service to which the carrier is 
transitioning, and specifically on what should qualify as a ``newer'' 
service. Should the criteria apply where the replacement service 
offered by the requesting carrier or the alternative services available 
from other providers in the relevant service area involve fixed, mobile 
wireless, or fixed wireless technologies that provide VoIP or other IP-
based services? Should they apply where the replacement or alternative 
service is based on next-generation services?
    19. Network Capacity and Reliability. Networks must have sufficient 
capacity to meet end user needs. Moreover, reliability has long been a 
hallmark of this country's communications network. During peak traffic 
periods, capacity is necessary to ensure reliability; without 
reliability, capacity is of limited use. Consistent with common usage, 
we use the term ``reliability'' to describe how often a service is 
available for the consumer. However, we recognize that technically what 
we are discussing is ``availability'' of a service, which is defined by 
the International Telecommunication Union (ITU) as follows: 
``Availability of an item to be in a state to perform a required 
function at a given instant of time or at any instant of time within a 
given time interval, assuming that the external resources, if required, 
are provided.'' Public Knowledge proposed that we evaluate availability 
separately from reliability, but because much of its proposal focused 
on service during power outages (which is being addressed by the 
Commission through separate means and because the reliability test that 
we propose based on its submission also addresses ``availability'' 
within its technical meaning, we do not propose a separate availability 
factor. Within a given time interval, assuming that the external 
resources, if required, are provided.'' We therefore tentatively 
conclude that any adequate substitute test that we adopt should 
evaluate whether the replacement or alternative service

will (a) afford the same or greater capacity as the existing service 
and (b) afford the same reliability as the existing service even 
when large numbers of communications, including but not limited to 
calls or other end-user initiated uses, take place simultaneously, 
and when large numbers of connections are initiated in or terminated 
at a communications hub, including but not limited to a wire center. 
This means that:
(1) Communications are routed to the correct location
(2) Connections are completed
(3) Connection quality does not deteriorate under stress
(4) Connection setup does not exhibit noticeable latency.

    20. We seek comment on this tentative conclusion. Should network 
capacity and reliability be a part of our adequate substitute 
evaluation? For purposes of implementing the Connect America Fund Phase 
II model-based support to price cap carriers, the Wireline Competition 
Bureau adopted a 100 millisecond latency metric to judge whether a 
service offering meets the Commission's requirement that service enable 
the use of real time applications. The Wireline Competition Bureau 
selected the 100 millisecond standard based on the International 
Telecommunication Union (ITU) standards. We seek comment on whether to 
adopt that same metric to judge whether ``noticeable latency'' occurs 
here and seek comment on that proposal. In addition, we propose to 
adopt metrics for jitter, packet loss, and through-put to provide a 
more complete and robust performance measurement of the service being 
offered to evaluate

[[Page 57772]]

successful routing, completion of connections, and quality 
deterioration and ask commenters to address what specific thresholds 
should be adopted. The term ``jitter'' is used herein to refer to 
encompass IPDV (IP Packet Delay Variation) or PDV (Packet Delay 
Variation) as those terms are defined by ITU and Internet Engineering 
Task Force (IETF) documents. The term ``packet loss'' used herein to 
encompass IPLR (IP packet Loss Ratio) as that term is defined by ITU 
and IETF documents. We also propose that the required metrics be based 
on the defined standards for various classes of service in ITU-T 
Y.1541, adjusted for the portion of the network that is the 
responsibility of the provider. We do not propose to include separate 
network capacity indicators as part of the adequate substitute test 
because measuring latency, jitter, packet loss, and speed through-put 
performance testing during network peak periods can demonstrate whether 
there is sufficient network capacity and quality. We ask how 
reliability (availability) can be measured by ``reachability'' tests 
conducted on a continuous basis. Such measures could include ping or 
other User Datagram Protocol (UDP)-based tests, such as the FCC 
Measuring Broadband America program. Other methodologies could also be 
employed, such as requiring an upper limit over-subscription ratio at 
defined points in the network, dual homing to at least two different 
upstream providers, multiple links to a single upstream provider, and a 
utilization limit above which additional ports and links would be 
required. We seek comment on this proposed approach and possible 
alternatives. CWA suggests that in the context of voice communications, 
``the ability to access a dial tone within three seconds 98% of the 
time during the busy season--busy hour should be the minimally 
acceptable level of service for a network,'' basing this suggestion on 
``the same, or substantially similar'' standards maintained by 18 state 
public utility commissions. We seek comment on whether we should adopt 
this standard as a part of our evaluation and on whether and how it can 
apply to non-dial tone services. Should we evaluate availability 
separately from reliability, and if so how should we evaluate each?
    21. Service Quality. As one commenter noted, ``[c]onsumers expect 
their voice communications to be clear, understandable, and free of 
distortion.'' We believe that this is a reasonable expectation that 
should not fall by the wayside when a carrier transitions its 
facilities from the traditional public switched telephone network to 
use of different technologies, and we do not believe that it should be 
limited to the quality of voice calls. We therefore tentatively 
conclude that one criterion in any adequate substitute test that we 
adopt should be that the carrier demonstrates in its section 214 
application that any replacement or alternative service meets the 
minimum service quality standards set by the state commission 
responsible for the relevant service area. We seek comment on this 
proposal. If the relevant state commission has not established such 
standards or lacks authority to do so, then we seek comment on what 
standards we should apply. In the Connect America Fund docket, parties 
have urged the Commission to adopt alternative measures of service 
quality for recipients of Connect America Fund support, such as 
requiring voice service to be provided with an ``R Factor'' score at or 
above a minimum threshold value. We note, however, that the R score is 
a network planning tool and is not designed to measure actual service 
quality. R scores ``are only made for transmission planning purposes 
and not for actual customer opinion prediction (for which there is no 
agreed-upon model recommended by the ITU-T).'' For data services, 
should internal network management system (NMS) tools be used to 
measure speed performance? Are external systems preferable, such as the 
Measuring Broadband America-based hardware approach? The Measuring 
Broadband America program is an ongoing nationwide study by the FCC of 
U.S. consumer broadband performance. The program's hardware approach 
involves connecting a measuring device to a broadband user's work 
station and periodically running speed tests to remote targets on the 
Internet. Are there additional performance metrics that should be 
considered? We also seek comment on TelePacific's suggestion that 
``[a]dditional metrics could include repeat trouble/repair reports, a 
key metric to determine whether incumbent LECs are fixing their plant, 
or compliance with [certain] Telcordia Standards . . .'' As an 
alternative to the approach we propose, can ``network capacity and 
reliability'' and ``service quality'' be measured by the same 
performance metrics (e.g., delay, jitter, packet loss, through-put, and 
availability) such that adopting them as distinct criteria is neither 
necessary nor desirable?
    22. Device and Service Interoperability. We tentatively conclude 
that one criterion in any adequate substitute test that we adopt should 
be that the carrier demonstrates that its replacement service or the 
alternative services available from other providers in the relevant 
service area allow for as much or more interoperability of both voice 
and non-voice devices, or newer technology-based equivalent devices, as 
the service to be retired. We seek comment on this tentative 
conclusion, as well as possible alternatives. To the extent commenters 
oppose adoption of such a requirement, they should identify with 
specificity their reasons and explain how we still can ensure that 
consumers are not harmed by the proposed discontinuance.
    23. Certain commenters profess to be confused about what 
functionalities consumers consider to be essential components of their 
legacy service. However, the record is already replete with examples of 
such devices and services. Indeed, AT&T acknowledged in its Proposal 
for Wire Center Trials that a variety of such third-party devices and 
services are ``vitally important to its customers.'' And consumer 
response to Verizon's attempts to use its VoiceLink service as a 
replacement service for its damaged wireline service in the wake of 
Super Storm Sandy can leave no doubt regarding what consumers believe 
to be essential service features. Moreover, the CTC Report contains a 
discussion regarding the use of various technology standards to allow 
for ongoing interoperability. According to CTC Technology and Energy 
(CTC): ``Despite this diversity, the majority of non-voice devices 
conform to a standard modem technology, such as v.32, v. 34, v.42bis, 
v.44, v.90, and v.92. Even where a truly proprietary device is used, 
the signaling and communications and protocol is similar enough to a 
standard modem that a test of a range of standards should be close 
enough to determine whether many devices will work on an IP-
transitioned line.'' CTC also notes that while older dial-up modems and 
fax machines fail to transmit properly over VoIP devices, this problem 
can be mitigated: ``Technology complying with the ITU T.38 standard can 
mitigate this issue by allowing the VoIP ATA [analog telephone adapter] 
to decode or `read the fax or modem signal, transmit the contents to 
the VoIP device at the far end as IP packets, and re-encode it for the 
fax or modem at the receiving location.''
    24. How should we measure the level of interoperability? Should we 
require that the service conform to standard modem technology and, if 
so, how should we define that phrase for

[[Page 57773]]

purposes of this criteria? Should we require that any VoIP device used 
by the network comply with the ITU T.38 standard, as proposed by CTC, 
or to some other standard? To what extent should we consider consumer 
trends in evaluating what third-party devices or services a substitute 
or alternative service should be required to support? Are there other 
ways in which to ensure the interoperability of third-party devices and 
services? ADT proposes that we adopt a rule governing the adoption of 
Managed Facilities-Based Voice Network (MFVN) standards, which it 
asserts have been used to ensure the continued interoperability of 
alarm monitoring systems during and after the transition to IP 
networks. We seek comment on whether the MFVN standards should play a 
role in our evaluation of the interoperability criteria or, in the 
alternative, on what role if any it should play in our legal framework 
for technology transitions. Lastly, we tentatively conclude that 
functionalities ``in development'' for a replacement service at the 
time a carrier submits a section 214(a) discontinuance application will 
not be considered in evaluating the adequacy of the replacement 
service. We seek comment on this tentative conclusion.
    25. Service for Individuals with Disabilities. The importance of 
ensuring that consumers with disabilities can utilize assistive 
technologies over communications networks is indisputable. There are 
several possible areas of impact of the transition on people with 
disabilities, such as (1) degradation of voice service quality that may 
compromise the ability of users who are hard of hearing to engage in a 
telephone conversation, and (2) incompatibility of remote transmission 
technologies over IP-based networks used for the provision of 
captioning on television or Internet-based video programming. As we 
noted above, one purpose of adopting criteria for evaluating the 
adequacy of substitute services is to ensure consumer protection. We 
tentatively conclude that one criterion in any adequate substitute test 
that we adopt should be that the carrier demonstrates that its 
replacement service or the alternative services available from other 
providers allow at least the same accessibility, usability, and 
compatibility with assistive technologies as the service being 
discontinued. We seek comment on this tentative conclusion, as well as 
possible alternatives. To the extent that people with disabilities must 
transition to new equipment, we seek comment on what is needed to 
reduce the burden of obtaining such equipment, particularly for those 
who do not qualify for existing state and federal equipment 
distribution programs and for those who are replacing devices not 
covered by equipment distribution programs (such as individuals with 
medical devices that are incompatible with IP service). Should we 
require carriers seeking to discontinue existing services in such 
contexts to include in their Section 214 applications information 
regarding the availability of IP-enabled devices that can also be 
distributed to selected and qualifying recipients under applicable 
state and federal programs? One commenter noted its ``understanding 
that technology transitions can be made to properly function with 
legacy assistive technology devices (e.g., TTY terminals) through 
appropriate network software modifications, and/or through the general 
availability of IP-enabled devices that can also be distributed to 
selected and qualifying recipients under applicable state and federal 
programs.'' Is this correct?
    26. We note that as TDM networks are discontinued in favor of IP-
based networks, there is an opportunity to implement IP-based real time 
text to replace TTY text services, as the key functionalities of both 
services are similar. We seek comment on whether we should require the 
implementation of real time text over IP networks and whether we should 
set an end date for the termination of TTY text services. We also seek 
comment on the appropriate length of a transition period during which 
both TTY text services and IP-based real time text would be available. 
We ask commenters to describe what IP-based real time text service 
would look like, including applicable standards, and to explain how it 
will be implemented. In response to the -NPRM, some commenters assert 
that accessibility is currently the subject of an industry-wide 
proceeding and thus should not be addressed ``ad hoc'' in this 
proceeding. We tentatively conclude, however, that we should adopt a 
standard regarding compatibility with assistive technologies for 
purposes of evaluating discontinuance applications. We seek comment on 
this tentative conclusion. We also seek comment on the appropriate 
timelines for issuing notices that existing services will be 
discontinued, and that new services may not be compatible with certain 
equipment. We further seek comment on the means of issuing such notices 
to ensure effective communication to the full community of people with 
disabilities.
    27. Although we acknowledge the possible impact that the transition 
to IP networks may have on people with disabilities, we also recognize 
an opportunity to implement high definition voice (HD voice) service 
over IP networks. HD voice would be especially beneficial for 
particular consumers who are hard of hearing to be able to better 
understand conversations over the telephone, thereby improving 
accessibility of the network to such consumers and potentially reducing 
their reliance on intermediary relay services such as captioned 
telephone service (CTS) and IP captioned telephone service (IP CTS) in 
favor of mainstream forms of communication. We therefore propose to 
require providers of IP networks to include HD voice as a feature for 
users with disabilities and seek comment on our proposal. We ask 
commenters to discuss timetables for the implementation of HD voice. 
Lastly, although speech recognition technologies that can accurately 
convert speech to text are still under development, we seek comment on 
the state of development of such technologies, which can also assist in 
the development of an all-inclusive network that will allow users to 
migrate away from the use of CTS and IP CTS in favor of mainstream 
forms of communication. In particular, we ask commenters to address the 
technical barriers to the development of accuracy for such technologies 
and the length of time that it is expected to take.
    28. PSAP and 9-1-1 Service. The ability of consumers to contact 9-
1-1 and reach the appropriate Public Safety Answering Point (PSAP) and 
for that PSAP to receive accurate location information for the caller 
is of the utmost importance. We therefore tentatively conclude that one 
criterion in any adequate substitute test that we adopt should be that 
the carrier demonstrates that a substitute service offered by the 
requesting carrier or alternative services available from other 
providers in the relevant service area complies with applicable state, 
Tribal, and federal regulations regarding the availability, 
reliability, and required functionality of 9-1-1 service. We seek 
comment on this tentative conclusion as well as any possible 
alternatives. Specifically, should we base our evaluation on whether 
substitute services merely comply with any 9-1-1 regulations applicable 
to such services, or whether they provide as good--or better--9-1-1 
functionality as the service(s) they replace? For example, would a 
fixed wireless service that complies with wireless 9-1-1 automatic

[[Page 57774]]

location information (ALI) requirements be an adequate substitute for a 
traditional landline service that provides ALI to PSAPs at the street-
address level, or would such a substitution be inadequate? Would a VoIP 
service that will not function during a loss of commercial power, or 
that provides only a limited amount of battery backup for CPE, serve as 
an adequate substitute to reach 9-1-1 in an emergency? What other 
factors should we consider for residential services? Further, what 
considerations should be applied to discontinuance of 9-1-1 network 
services and components, such as trunks and selective routers, that 
support the capability of individual consumers to effectively reach 9-
1-1? We observe that, without ensuring adequate service to PSAPs, 
residential 9-1-1 service could be negatively affected.
    29. Certain commenters expressed concern that questions regarding 
9-1-1 service are being addressed in other proceedings and thus should 
not be addressed here. We note, however, that our 2014 Policy Statement 
and Notice of Proposed Rulemaking on 9-1-1 governance and 
accountability proposed only that ``covered 911 service providers that 
seek to discontinue, reduce, or impair existing 911 service in a way 
that does not trigger already existing authorization requirements 
should be required to obtain Commission approval.'' The Commission 
further stated that ``[w]e do not . . . intend to create duplicative 
obligations for entities that are already subject to section 214(a) and 
associated authorization requirements'' and that any new requirement 
for covered 9-1-1 service providers ``would apply only when entities 
seeking to discontinue, reduce, or impair existing 911 service are not 
already required to obtain approval under other existing Commission 
rules.'' Accordingly, we disagree that our proposal here to consider 
access to 9-1-1 as a criterion in our section 214 analysis would 
duplicate or conflict with additional measures proposed in other 
proceedings. Although the issues are related and reflect our 
overarching goal of ensuring that all Americans have reliable access to 
9-1-1, we tentatively conclude that the issues raised here with respect 
to adequate substitution are separate from those under consideration in 
the 9-1-1 governance proceeding and should therefore proceed 
independently. We seek comment on this tentative conclusion.
    30. Communications Security. In the -NPRM, the Commission observed 
that IP technologies ``can create the potential for network security 
risks through the exposure of network monitoring and control systems to 
end users.'' We sought comment ``on whether the Commission should 
require demonstration, as part of the section 214 discontinuance 
process, that any IP-supported networks or network components offer 
comparable communications security, integrity, and reliability.'' 
Several commenters expressed support for our considering network 
security as part of this process. We now tentatively conclude that one 
criterion in any adequate substitute test that we adopt should be that 
the carrier demonstrates in its application that a substitute service 
offered by the requesting carrier or alternative services available 
from other providers in the relevant service area offer comparably 
effective protection from network security risks. We believe that this 
approach would adequately protect the interests of consumers, while 
preserving flexibility for providers to tailor security risk management 
practices to their unique needs and circumstances. We seek comment on 
this tentative conclusion, as well as possible alternatives. What 
factors should we consider in assessing whether a substitute service 
offers comparably effective protection from network security risks? How 
should we define the appropriate category of ``network security risks'' 
for this purpose? Should we consider factors such as those Public 
Knowledge identifies in its comments? For instance, should we consider 
the extent to which a proposed substitute service exposes users to a 
higher risk of spoofed calls or ``man-in-the-middle'' attacks (e.g., 
interception of fixed wireless calls using an ``IMSI catcher'') that 
compromise a user's ability to communicate or put personal information 
at risk? An ``IMSI catcher'' is an eavesdropping device, essentially a 
fake mobile tower that intercepts cellphone calls and can be used to 
listen to the cellphone owner's calls, read their texts, and track 
their movements. Should we consider the vulnerability of a proposed 
substitute service to physical risks (e.g., weather damage) or human 
risks (e.g., insider threats)?
    31. Would it be sufficient for an applicant to demonstrate that the 
provider of the substitute service has engaged in implementation of the 
National Institute for Standards and Technology (NIST) Cybersecurity 
Framework (NSF) or an equivalent risk management construct? Should an 
applicant also address the provider's participation in the 
Communications Sector Coordinating Council or other public-private 
initiatives to promote more secure communications networks? Should an 
applicant provide more detailed information regarding the provider's 
cyber risk management practices in general, its implementation of 
relevant industry best practices, or its engagement with fellow 
providers to address shared risks? To what extent may the Commission 
reasonably expect that applicants to discontinue service are in a 
position to provide information about the network security risks of an 
unaffiliated provider of a substitute service? Should the degree of 
detail required from an applicant depend on whether the provider of a 
proposed substitute service is affiliated with the applicant? What 
additional information, if any, would assist the Commission in 
evaluating the security protections afforded by a proposed substitute 
service?
    32. Service Functionality. Consumers have come to expect that they 
may use their phone service to make calls anywhere to anyone, 
regardless of the network used by the call recipient. This is not 
always the case with other types of voice service. They also have come 
to expect that their phone service provides certain functionalities, 
such as caller ID, transport of touch tones, and the ability to make 
calling card, dial-around, collect, or third-party number billed calls, 
as well as certain non-call functionalities. Enterprise customers also 
rely on the functionalities available from the services they purchase. 
We tentatively conclude that one criterion in any adequate substitute 
test that we adopt should be that the carrier must demonstrate in its 
Section 214 application that any replacement offered by the requesting 
carrier or alternative service available from other providers in the 
relevant service area permit similar service functionalities as the 
service for which the carrier seeks discontinuance authority. We seek 
comment on this tentative conclusion, as well as other possible 
alternatives. We seek comment as well on whether similar 
functionalities as those provided by legacy services, such as medical 
alert monitors and credit card processing, are feasible with new 
technologies and whether new end-user equipment would be required.
    33. How should ``service functionality'' be defined? We recognize 
that we need additional information on this issue. How can we ensure 
that it will be a technology neutral evaluation? Should we require that 
if, for instance, a voice service with caller ID is discontinued, a 
replacement service or alternative service offered by another provider 
in the relevant service area

[[Page 57775]]

must include the option of caller ID? Or if facsimile machines can be 
used over the existing service, a replacement or other alternative 
service must afford similar interoperability? Or if a data service is 
to be discontinued, such capability, or something that performs the 
same function, must be otherwise available? How do we measure the scope 
of ``service functionality''? How can carriers gather the information 
needed regarding functionalities consumers consider to be essential 
components of their service? How can they gather ``service 
availability'' information with respect to alternative services offered 
by other providers in the relevant service area? And how does this 
proposed criterion correlate to our statement in the Declaratory Ruling 
that the relevant task in defining the scope of a carrier's service 
``is to identify the service the carrier actually provides to end 
users'' and that ``[i]n doing so, the Commission takes a functional 
approach that evaluates the totality of the circumstances''?
    34. Coverage. Inherent in our longstanding evaluation of the 
existence, availability, and adequacy of alternative services is the 
question of whether the substitute service is available to the persons 
to whom the discontinued service has been available. Our evaluation of 
the nature of the substitute service is for naught if the service 
simply is not available to the affected customers. We therefore 
tentatively conclude that one criterion in any adequate substitute test 
that we adopt should be that the carrier demonstrates in its 
application that the substitute service will remain available in the 
affected service area to the persons to whom the discontinued service 
had been available. We seek comment on this tentative conclusion. 
Should we adopt a de minimis threshold by percentage of prior 
population or geographic area reached for which loss of coverage is 
tolerable?
    35. Public Knowledge suggests that we focus specifically on 
wireline coverage when evaluating the adequacy of the substitute 
service. We recognize that as illustrated by consumer response to 
Verizon's attempt to replace the wireline network destroyed by Super 
Storm Sandy with its wireless VoiceLink service, a significant portion 
of consumers view coverage equivalent to that traditionally found in 
wireline telephony as essential. And commenters noted the importance of 
the availability of wireline coverage to rural consumers, for whom 
there tend to be fewer available options. Should we look differently at 
technologies that offer the level of coverage traditionally afforded by 
wireline telephony from those that do not, and if so how?
2. Consumer Education
    36. As discussed in the Order above, we remain concerned about the 
level of consumer education and outreach around technology transitions 
generally. A discontinuance of an existing service on which customers 
presently rely creates an especially great need for customer education. 
It was for that reason that the January 2014 Technology Transitions 
Order, the Commission set forth an expectation that providers 
conducting any experiment would ``engage in customer outreach and 
education efforts.'' Accordingly, we propose to require that part of 
the evaluation of a section 214 application to discontinue a legacy 
retail service should include whether the carrier has an adequate 
customer education and outreach plan. We seek comment on this proposal, 
and also on whether there are particular metrics and guidance the 
Commission can and should provide concerning what would constitute an 
adequate education and outreach plan. We also seek comment on how best 
to work with the state commissions and Tribal governments on such 
education and outreach plans.
3. Other Issues
    37. Other Criteria. Based on the record received to date, we 
tentatively conclude that we should not adopt the following proposals 
by commenters to include the following criteria in the section 214 
process: (1) Operability during emergencies, including power outages, 
because this issue is being addressed by the Commission through 
separate means; (2) adequate transmission capability, because end users 
and carriers should be free to reach agreement on services at a wide 
range of transmission capacities; (3) affordability, because the 
evaluation process in this context should focus on the nature of the 
service and because cost is not part of the equation in determining 
whether an available alternative service constitutes an adequate 
substitute for the service sought to be discontinued; and (4) 
connection persistence, because the Commission today takes other action 
to address that issue. We recognize the concerns about the often 
increased costs associated with a transition from a TDM-based service 
to an IP-based service. And we take such concerns into account when 
evaluating section 214 applications for discontinuance authority. We 
seek comment on these tentative conclusions. Could any of these 
criteria be reformulated in such a way that would warrant adoption? 
Should we adopt any other criteria not listed above?
    38. Rural LEC Exemption. If we determine that it is appropriate to 
adopt any or all of the proposed criteria, should we include an 
exemption for some or all of them for rural LECs, as proposed by TCA? 
If so, should that exemption apply to all criteria? Or should the 
exemption apply to only certain criteria and, if so, which ones? And 
what criteria would a carrier have to meet to qualify for such an 
exemption? Would it be appropriate to apply it to LECs with fewer than 
two percent of the Nation's subscriber lines in the aggregate 
nationwide? Would some other measure be appropriate? We note that 
certain commenters assert that rural LECs should be exempt from any 
criteria for evaluating substitute services because of the often very 
limited options available in rural locales. Other commenters are 
concerned about any such exemption given the relative scarcity of 
alternatives available in many rural areas.
    39. Market Power Analysis. NASUCA proposes that, when determining 
the adequacy of substitutes, it would be appropriate to use the 
``traditional antitrust formula for determining substitutability, used 
in the Qwest Phoenix Forbearance Order.'' In the Qwest Phoenix 
Forbearance Order, the Commission evaluated Qwest's petition for 
forbearance using a market power analysis that is similar to that used 
by the Commission in many prior proceedings and by the Federal Trade 
Commission and the Department of Justice in antitrust reviews. Under 
this approach, the Commission ``separately evaluate[d] competition for 
distinct services, for example differentiating among the various retail 
services purchased by residential and small, medium, and large business 
customers, and the various wholesale services purchased by other 
carriers.'' The Commission also considered ``how competition varie[d] 
within localized areas in the [relevant market].'' To what extent would 
this market power analysis help inform an evaluation of whether 
adequate substitutes exist? What specific parts of the market power 
analysis would be beneficial when determining whether adequate 
substitutes exist?

B. Section 214(a) Discontinuance Process

    40. In the -NPRM, the Commission sought comment on whether it 
should revise section 63.71 of its rules, which establishes the 
procedures that carriers must follow to obtain section 214(a)

[[Page 57776]]

approval for discontinuances, including notification to affected 
customers. We noted our effort to strike the right balance between 
providing carriers the ability to schedule TDM discontinuance as part 
of their transition plans, and the need for carrier-customers to plan 
for the transition as well as prepare their end user customers for 
possible changes to offerings that depend on the discontinuing 
carrier's last-mile inputs. We received some comment in response to the 
NPRM regarding what parties believe is a sufficient notice period. In 
response to the NPRM, XO and Birch et al. recommend requiring that 
carriers provide advance notice of discontinuance before filing an 
application with the Commission, while the Competitive Carriers 
Association recommends a longer discontinuance process. AT&T 
alternatively argues that any expanded notice is not necessary because 
the Commission has the option to remove a section 214 application from 
streamlined processing.
    41. We find we need a more complete record on this issue before 
determining whether to adopt any additional modifications to Section 
63.71 of our rules. Accordingly, we seek further comment on whether we 
should update Section 63.71, including the costs and benefits of any 
changes. Section 63.71(b) states that a carrier shall file its 214 
application ``on or after the date on which notice has been given to 
all affected customers.'' Section 63.71(d) provides that applications 
shall be automatically granted on the 31st day after filing an 
application for non-dominant carriers and the 60th day for dominant 
carriers, unless the Commission notifies the applicant that the grant 
will not be automatically effective. Should we update the earliest date 
by which the Commission may grant approval, either for dominant or non-
dominant carriers or for both? We emphasize we wish to maintain a 
streamlined process for carriers that satisfy our existing criteria for 
such treatment and the adequate substitutes proposal discussed above if 
adopted. Should we require advance notice of discontinuance or are the 
existing procedures in section 63.71 sufficient? As noted above, 
parties recommend various revisions to the notice for discontinuance of 
TDM-based services used as wholesale inputs. While we seek comment on 
those proposals, we also seek comment on whether to align timing for 
notices of discontinuance with notices of copper retirement. In the 
Order, we extend the notice of copper retirement to interconnecting 
carriers and non-residential retail customers to at least 180 days and 
the notice period to residential retail customers to at least 90 days 
based upon our conclusion that these time periods strike the right 
balance between the planning needs of competitive carriers and 
customers and the need for incumbent LECs to be able to move forward in 
a timely fashion with their business plans. We seek comment on whether 
this same rationale applies for discontinuances of TDM-based service to 
carrier-customers that may need to modify their end-user contracts to 
accommodate the discontinuance. We also seek comment on whether 
modification of section 63.71 to extend notice would conflict with any 
other Commission rules and procedures.
    42. We also seek comment on whether we should revise our rules to 
explicitly allow email-based notice or other forms of electronic or 
other notice of discontinuance to customers. We recognize that email 
may be the preferred method of notice for both the carriers seeking 
discontinuance and consumers. We seek comment as to whether there are 
efficiencies of electronic distribution such that we should make a rule 
change to include it as a method of delivery. Would email or other 
electronic forms of notice harm or disadvantage any end users? Should 
alternative forms of notice be permissible only with customer consent, 
and if so what should be permissible methods to obtain consent? Are 
there factors the Commission should take into consideration for certain 
groups of customers, such as accessible formats? Are there any other 
issues we should consider to ensure all affected consumers receive 
adequate notice? For example, how should notice be provided when 
consumers lack access to broadband?

C. Section 214(a) Discontinuance Notice to Tribal Governments

    43. In the Order above, we extend notice of copper retirements to 
include notice to the public utility commission and the governor of the 
state in which the retirement will occur and to the Secretary of 
Defense, consistent with our current section 214 discontinuance rules. 
We also extend notice of copper retirements to affected Tribal 
governments so they may prepare for network changes affecting their 
communities. Here, we tentatively conclude that the same justification 
applies in the section 214 context of a discontinuance, reduction or 
impairment of a service. Tribal governments should be in a position to 
prepare and address any concerns from consumers in their Tribal 
communities. We also tentatively conclude that it is appropriate to 
make the notice requirements for section 214 discontinuance 
applications and copper retirement network changes consistent, as both 
involve changes to the Nation's communications networks and affect 
different groups of consumers. We therefore seek comment on including 
notice to Tribal governments as part of our section 214 discontinuance 
application process. Specifically, we seek comment on our tentative 
conclusion that we should revise rule 63.71(a) to include notice to 
Tribal governments in order to make our copper retirement and service 
discontinuance notice requirements consistent. Rule 63.71 requires that 
applications to discontinue, reduce or impair service to a community 
provide notice to the ``Governor of the State in which the 
discontinuance, reduction, or impairment of service is proposed, and 
also to the Secretary of Defense.'' We tentatively conclude that we 
should include any Tribal Nations in the state in which discontinuance, 
reduction, or impairment of service is proposed regardless of the 
reason for the discontinuance. To be clear, the proposed notice 
requirement would be permanent (barring future Commission action) and 
would not terminate with the reasonably comparable wholesale access 
condition at the conclusion of the Commission's special access 
proceeding. We seek comment on this proposal, including its costs and 
benefits. We seek comment on whether a different or limited scope of 
notice to Tribal governments would be appropriate. We seek comment on 
our proposal and if there are any legal, regulatory or procedural 
impairments to our extension of notice to Tribal governments. Are there 
any other issues of notice, such as form or content that are unique to 
Tribal governments the Commission should consider?

D. Copper Retirement Process--Good Faith Communication Requirement

    44. In the Order above, we eliminate the objection procedures 
previously available to interconnecting carriers upon receipt of a 
copper retirement notice and instead adopt a requirement that incumbent 
LECs work with interconnecting entities in good faith to ensure that 
those entities have the information needed to allow them to accommodate 
the transition with no disruption of service to their end user 
customers. Should we provide specific objective criteria by which to 
evaluate this good faith requirement to ensure that all parties are 
aware of their respective rights and obligations? And

[[Page 57777]]

what recourse should be available to an interconnecting entity who 
believes that an incumbent LEC is not acting in good faith? If the 
Commission finds an incumbent LEC has failed to fulfill the good faith 
communication requirement, should the retirement be postponed by an 
additional 90 days (beyond the 180-day mark)? Are there limitations on 
how much and what types of information an incumbent LEC should be 
required to provide to an interconnecting entity?

E. Termination of Interim Reasonably Comparable Wholesale Access 
Condition

    45. As discussed above, to support the current technology 
transitions, we seek to avoid delays due to diminished competition by 
imposing light-handed regulation through the interim reasonably 
comparable wholesale access condition. The Commission will have adopted 
and implemented the rules and policies that end the reasonably 
comparable wholesale access interim rule when: (1) It identifies a set 
of rules and/or policies that will ensure rates, terms, and conditions 
for special access services are just and reasonable; (2) it provides 
notice such rules are effective in the Federal Register; and (3) such 
rules and/or policies become effective. We recognize, however, that the 
special access proceeding will not address the status of commercial 
wholesale platform services such as AT&T's Local Service Complete and 
Verizon's Wholesale Advantage that include incumbent LEC loops, 
transport and local circuit switching.
    46. We accordingly seek comment on how to facilitate continuation 
of commercial wholesale platform services, which we believe serve an 
important business need for enterprises that seek, among other things, 
``the ability to obtain service from a single supplier at their 
disparate retail locations nationwide.'' Granite explains that it and 
other similarly-situated competitive carriers ``serve multi-location 
business customers that have modest demands for voice services at each 
location by combining value-added services with underlying TDM-based 
telephone services purchased at wholesale from incumbent LECs.'' 
Granite recently submitted a study prepared by Charles River Associates 
that finds, based on Granite's own estimate of the per-line added value 
that its service provides to customers, that loss of wholesale access 
to incumbents' voice services would result in customer harm of between 
$4.443 and 10.168 billion per year. We note that this study is 
additionally premised on the expectation that absent regulatory action 
by the Commission, wholesale arrangements between companies like 
Granite and incumbent providers will not occur. We seek comment on that 
underlying assumption and on the incentives of incumbents to enter 
into, or not enter into, IP-based wholesale arrangements for voice 
service. We recognize that incumbents are currently offering such 
commercial arrangements in TDM on a voluntary basis and we encourage 
such arrangements and hope they continue to be standard wholesale 
offerings, including in IP. Verizon, for example, points out that 
``[c]ommercial UNE-P replacement products are market-based responses to 
competitive pressures, and in the six wire centers that Verizon 
migrated to all-fiber facilities, Verizon provided Wholesale 
Advantage--[Verizon's] UNE-P commercial replacement product--onto the 
new fiber facilities with no change in rates, terms, or conditions.'' 
We further recognize the benefits of agreements reached through market 
negotiations.
    47. However, to the extent that the Commission finds that wholesale 
arrangements for voice service are unlikely to occur in the future on a 
marketplace basis, would it be appropriate for the Commission to 
require reasonably comparable wholesale access for commercial wholesale 
platform services for a further interim period beyond completion of the 
special access proceeding? If the Commission does extend this 
requirement, for how long should it be extended and should its 
substance be revised? Should the timeframe be connected to any pending 
Commission proceeding?

III. Procedural Matters

A. Ex Parte Presentations

    48. This proceeding shall continue to 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 rule 1.1206(b). In proceedings governed by 
rule 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.

B. Filing Instructions

    49. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 
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 by paper or by using the Commission's Electronic Comment Filing 
System (ECFS).
    [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. Because 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.
    [ssquf] 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 a.m. to 7 p.m. All hand deliveries must be held together with rubber 
bands or fasteners. Any envelopes and boxes

[[Page 57778]]

must be disposed of before entering the building.
    [ssquf] 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.
    [ssquf] 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).

C. Paperwork Reduction Act Analysis

    50. This document contains proposed new and modified 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.

D. Initial Regulatory Flexibility Analysis

    51. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared an Initial Regulatory Flexibility Analysis 
(IRFA) of the possible significant economic impact on small entities of 
the policies and rules proposed in the FNPRM contained herein. The 
analysis is found below. We request written public comment on the 
analysis. Comments must be filed in accordance with the same deadlines 
as comments filed in response to the FNPRM and must have a separate and 
distinct heading designating them as responses to the IRFA. The 
Commission's Consumer and Governmental Affairs Bureau, Reference 
Information Center, will send a copy of this FNPRM, including the IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration.

A. Need for, and Objectives of, the Proposed Rules

    52. Building on the record developed in response to the NPRM, in 
the FNPRM the Commission proposes specific criteria for the Commission 
to use in evaluating the adequacy of substitute services in connection 
with applications to discontinue retail services pursuant to section 
214 of the Communications Act of 1934, as amended. The Commission 
believes all stakeholders will benefit from an additional round of 
comments focused on its specific proposals. Adopting specific criteria 
will enable the Commission to ensure that it can carry out its 
statutorily-mandated responsibilities in a technology-neutral manner 
and provide clear up-front guidance that will minimize complications 
when carriers seek approval for large-scale discontinuances. The 
Commission also seeks further comment on what constitutes a sufficient 
notice period for affected customers in connection with a section 214 
discontinuance application and whether it should revise its rules to 
explicitly allow email-based notice or other forms of electronic or 
other notice of discontinuance to customers. And the Commission seeks 
comment on including notice to Tribal governments as part of the 
section 214 discontinuance application process. The Commission also 
seeks comment on defining what constitutes ``good faith'' in connection 
with the requirement adopted in the Order that incumbent LECs act in 
good faith to provide interconnecting entities with information needed 
in order to accommodate planned copper retirements. Finally, the 
Commission seeks comment on how to facilitate continuation of 
commercial wholesale platform services after technology transitions.
    53. First, the FNPRM seeks additional comment on possible criteria 
against which to measure ``what would constitute an adequate substitute 
for retail services that a carrier seeks to discontinue, reduce, or 
impair in connection with a technology transition (e.g., TDM to IP, 
wireline to wireless)'' in order ``to ensure that we protect consumers, 
competition, and public safety.'' The Commission continues to believe 
that establishing criteria for evaluating the adequacy of replacement 
services will benefit industry and consumers by providing certainty. 
Because the record as developed thus far does not provide sufficient 
clarity to allow the Commission to fully establish clear criteria, the 
Commission seeks additional comment on specific proposals so that it 
has the benefit of more targeted input in order to adopt rules that are 
carefully tailored to address the issues presented by the ongoing 
technology transitions process and that will stand the test of time. 
The FNPRM also seeks comment on effective ways to ensure compliance 
with the criteria and tentatively proposes requiring an officer or 
other authorized public representative to certify the accuracy of the 
statements in the application regarding the criteria. The availability 
of adequate substitute services is one of five factors the Commission 
looks at in evaluating section 214 discontinuance applications under 
existing precedent, to be balanced against the other factors in 
determining whether the public convenience and necessity will be 
adversely affected by discontinuance of the service at issue.
    54. Second, the FNPRM seeks additional comment on whether and how 
the Commission should adopt modifications to Section 63.71 of our 
rules, including the costs and benefits of any changes. In the NPRM, 
the Commission sought comment on whether it should revise section 63.71 
of its rules, which establishes the procedures that carriers must 
follow to obtain section 214(a) approval for discontinuances, including 
notification to affected customers and the earliest dates by the 
Commission may grant approval of discontinuance applications. Although 
some entities filed comments, in the FNPRM the Commission determines 
that we need a more complete record on this issue. The FNPRM also seeks 
more general comment on whether it should revise its rules to 
explicitly allow email-based notice or other forms of electronic or 
other notice of discontinuance to customers and on whether there are 
factors the Commission should take into consideration for certain 
groups of customers, such as accessibility formats, or any other issues 
that the Commission should consider to ensure that all affected 
consumers receive adequate notice.
    55. Third, the FNPRM tentatively concludes that the Commission 
should extend the notice requirements for discontinuances, reductions, 
or impairments of service to affected Tribal governments and seeks 
comment on including notice to Tribal governments as part of our 
section 214 discontinuance application process. Specifically, the FNPRM 
seeks comment on the tentative conclusion that the Commission should 
revise section 63.71(a) of its rules to include notice to Tribal 
governments in order to make its copper retirement and service 
discontinuance notice requirements consistent. The FNPRM tentatively 
concludes that the Commission should include any Tribal Nations in the 
state in which discontinuance, reduction, or

[[Page 57779]]

impairment of service is proposed regardless of the reason for the 
discontinuance, and seeks comment on this, including its costs and 
benefits. Finally, the FNPRM seeks comment on whether a different or 
limited scope of notice to Tribal governments would be appropriate and 
whether there are any other issues of notice, such as form or content, 
unique to Tribal governments that the Commission should consider.
    56. Fourth, the FNPRM notes that, in the attached Report and Order, 
the Commission eliminates the objection procedures previously available 
to interconnecting carriers upon receipt of a copper retirement notice 
and instead adopts a requirement that incumbent LECs work with 
interconnecting entities in good faith to ensure that those entities 
have the information needed to allow them to accommodate the transition 
with no disruption of service to their end user customers. The FNPRM 
seeks comment on whether the Commission should provide specific 
objective criteria by which to evaluate this good faith requirement to 
ensure that all parties are aware of their respective rights and 
obligations. The FNPRM also seeks comment on what recourse should be 
available to an interconnecting entity who believes that an incumbent 
LEC is not acting in good faith and whether there are limitations on 
how much and what types of information an incumbent LEC should be 
required to provide to an interconnecting entity.
    57. Finally, the FNPRM notes that to support the current technology 
transitions, we seek to avoid delays due to diminished competition by 
imposing light-handed regulation through the interim reasonably 
comparable wholesale access condition. The FNPRM seeks comment on how 
to facilitate continuation of commercial wholesale platform services, 
which the Commission believes serve an important business need for 
enterprises that seek, among other things, ``the ability to obtain 
service from a single supplier at their disparate retail locations 
nationwide.'' The Commission seeks comment on whether to the extent 
that the Commission finds that wholesale arrangements for voice service 
are unlikely to occur in the future on a marketplace basis, it would be 
appropriate for the Commission to require reasonably comparable 
wholesale access for commercial wholesale platform services for a 
further interim period beyond completion of the special access 
proceeding and, if so, for how long.

B. Legal Basis

    58. The proposed action is authorized under Sections 1, 2, 4(i), 
214, and 251 of the Communications Act of 1934, as amended; 47 U.S.C. 
151, 152, 154(i), 214, and 251.

C. Description and Estimate of the Number of Small Entities To Which 
the Proposed Rules Will Apply

    59. The RFA directs agencies to provide a description 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.
    60. The majority of our proposals in the FNPRM will affect 
obligations on incumbent LECs. Other entities, however, that choose to 
object to network change notification for copper retirement under our 
new proposed rules may be economically impacted by the proposals in 
this FNPRM.
1. Total Small Businesses
    61. A small business is an independent business having less than 
500 employees. Nationwide, there are a total of approximately 28.2 
million small businesses, according to the SBA. Affected small entities 
as defined by industry are as follows.
2. Wireline Providers
    62. 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. 
According to Census Bureau data for 2007, there were 3,188 firms in 
this category, total, that operated for the entire year. Of this total, 
3,144 firms had employment of 999 or fewer employees, and 44 firms had 
employment of 1000 employees or more. Thus, under this size standard, 
the majority of firms can be considered small.
    63. 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, 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 local exchange service are small 
entities that may be affected by rules adopted pursuant to the FNPRM.
    64. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent local exchange services. The closest 
applicable 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, 1,307 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 FNPRM.
    65. 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.
    66. 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

[[Page 57780]]

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 FNPRM.
    67. Interexchange Carriers. Neither the Commission nor the SBA has 
developed a small business size standard specifically for providers of 
interexchange services. 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, 359 carriers have reported that they are 
engaged in the provision of interexchange service. Of these, 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 
IXCs are small entities that may be affected by rules adopted pursuant 
to the FNPRM.
    68. 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. 
According to Commission data, 284 companies reported that their primary 
telecommunications service activity was 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 rules adopted pursuant to the FNPRM.
3. Wireless Providers
    69. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the Census Bureau has placed wireless firms within this new, 
broad, economic census category. 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 the category of Wireless 
Telecommunications Carriers (except Satellite), census data for 2007 
show that there were 1,383 firms that operated for the entire year. Of 
this total, 1,368 firms had employment of 999 or fewer employees and 15 
had employment of 1000 employees or more. Since all firms with fewer 
than 1,500 employees are considered small, given the total employment 
in the sector, we estimate that the vast majority of wireless firms are 
small.
    70. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. The SBA has developed a small business size 
standard for Wireless Telecommunications Carriers (except Satellite). 
Under the SBA small business size standard, a business is small if it 
has 1,500 or fewer employees. According to Commission data, 413 
carriers reported that they were engaged in wireless telephony. 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.
4. Cable Service Providers
    71. Cable and Other Program Distributors. 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. To gauge small business prevalence for these cable services 
we must, however, use current census data that are based on the 
previous category of Cable and Other Program Distribution and its 
associated size standard; that size standard was all such firms having 
$13.5 million or less in annual receipts. According to Census Bureau 
data for 2007, there were a total of 3,188 firms in this category that 
operated for the entire year. Of this total, 2,694 firms had annual 
receipts of under $10 million, and 504 firms had receipts of $10 
million or more. Thus, the majority of these firms can be considered 
small and may be affected by rules adopted pursuant to the FNPRM.
    72. Cable Companies and Systems. The Commission has also 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 
shows that there are 660 cable operators in the country. Of this total, 
all but eleven cable operators nationwide 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. Current 
Commission records show 4,945 cable systems nationwide. Of this total, 
4,380 cable systems have less than 20,000 subscribers, and 565 systems 
have 20,000 or more subscribers, based on the same records. Thus, under 
this standard, we estimate that most cable systems are small entities.
5. All Other Telecommunications
    73. 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 
$32.5 million or less in average annual receipts. According to Census 
Bureau data for 2007, there were 2,383 firms in this category that 
operated for the entire year. Of these, 2,346 firms had annual

[[Page 57781]]

receipts of under $25 million and 37 firms had annual receipts of $25 
million or more. Consequently, we estimate that the majority of these 
firms are small entities that may be affected by rules adopted pursuant 
to the FNPRM.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    74. The FNPRM proposes a number of rule changes that will affect 
reporting, recordkeeping, and other compliance requirements. Each of 
these changes is described below.
    75. The FNPRM seeks comment on specific criteria for the Commission 
to use in evaluating the adequacy of substitute services in connection 
with applications to discontinue service pursuant to section 214, 
specifically seeking comment on possible criteria for evaluating the 
adequacy of replacement services. The FNPRM also seeks comment on 
effective ways to ensure compliance with the criteria and tentatively 
proposes requiring an officer or other authorized public representative 
to certify the accuracy of the statements in the application regarding 
the criteria. The FNPRM also seeks comment on whether and how the 
Commission should adopt modifications to section 63.71 of our rules, 
including notification to affected customers, and tentatively concludes 
that the Commission should extend the notice requirements for 
discontinuances, reductions, or impairments of service to affected 
Tribal entities. Further, the FNPRM seeks general comment on whether it 
should revise its rules to allow email-based notice or other forms of 
electronic or other notice of discontinuance to customers and on 
whether there are factors the Commission should take into consideration 
for certain groups of customers, such as accessibility formats, or any 
other issues that the Commission should consider to ensure that all 
affected consumers receive adequate notice. Additionally, the FNPRM 
eliminates the objection procedures previously available to 
interconnecting carriers upon receipt of a copper retirement notice and 
instead adopts a requirement that incumbent LECs work with 
interconnecting entities in good faith to ensure that those entities 
have the information needed to allow them to accommodate the transition 
with no disruption of service to their end user customers. The FNPRM 
seeks comment on what recourse should be available to an 
interconnecting entity who believes that an incumbent LEC is not acting 
in good faith and whether there are limitations on how much and what 
types of information an incumbent LEC should be required to provide to 
an interconnecting entity. Finally, the Commission seeks comment on how 
to facilitate continuation of commercial wholesale platform services 
after technology transitions.

E. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    76. The RFA requires an agency to describe any significant 
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 or reporting requirements under the rule for 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 small 
entities.
    77. The FNPRM seeks comment on each of its proposed approaches and 
specifically seeks additional proposals of possible criteria for 
evaluating the adequacy of replacement services, input on effective 
ways to ensure compliance with proposed criteria, and comment on 
whether and how the Commission should adopt modifications to section 
63.71 of our rules, including notification to affected customers. The 
FNPRM also seeks general comment on whether: (1) It should revise its 
rules to allow email-based notice or other forms of electronic or other 
notice of discontinuance to customers; (2) there are factors the 
Commission should take into consideration for certain groups of 
customers, such as accessibility formats; and (3) there are any other 
issues that the Commission should consider to ensure that all affected 
consumers receive adequate notice. And the FNPRM seeks comment on 
whether it should include Tribal governments in its notice requirements 
for section 214(a) discontinuance applications. The FNPRM also seeks 
comment on what recourse should be available to an interconnecting 
entity who believes that an incumbent LEC that is retiring copper is 
not acting in good faith to ensure that interconnecting carriers have 
the information they need, and whether there are limitations on how 
much and what types of information an incumbent LEC should be required 
to provide to an interconnecting entity. Finally, the Commission seeks 
comment on how to facilitate continuation of commercial wholesale 
platform services after technology transitions.

F. Federal Rules that May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    78. None.

IV. Ordering Clauses

    79. Accordingly, it is ordered that, pursuant to Sections 1-4, 201, 
214, 251, and 303(r), of the Communications Act of 1934, as amended, 47 
U.S.C. 151-154, 201, 214, 251, 303(r), this Report and Order, Order on 
Reconsideration, and FNPRM of Proposed Rulemaking are adopted.
    80. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order and FNPRM of Proposed Rulemaking, 
including the Final and Initial Regulatory Flexibility Analyses, and 
this Order on Reconsideration to the Chief Counsel for Advocacy of the 
Small Business Administration.

List of Subjects

 47 CFR Part 51

    Communications, Communications common carriers, Defense 
communications, Telecommunications, Telephone.

 47 CFR Part 63

    Cable television, Communications common carriers, Radio, Reporting 
and recordkeeping requirements, Telegraph, Telephone.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 63 as follows:

PART 63--EXTENSION OF LINES, NEW LINES, AND DISCONTINUANCE, 
REDUCTION, OUTAGE AND IMPAIRMENT OF SERVICE BY COMMON CARRIERS; AND 
GRANTS OF RECOGNIZED PRIVATE OPERATING AGENCY STATUS

0
1. The authority citation for part 63 continues to read as follows:

    Authority:  Sections 1, 4(i), 4(j), 10, 11, 201-205, 214, 218, 
403 and 651 of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 154(i), 154(j), 160, 201-205, 214, 218, 403, and 571, unless 
otherwise noted.

0
2. Amend Sec.  63.71 by revising paragraph (a) introductory text and 
(d), to read as follows:

[[Page 57782]]

Sec.  63.71  Procedures for discontinuance, reduction or impairment of 
service by domestic carriers.

* * * * *
    (a) The carrier shall notify all affected customers of the planned 
discontinuance, reduction, or impairment of service and shall notify 
and submit a copy of its application to the public utility commission 
and to the Governor of the State in which the discontinuance, 
reduction, or impairment of service is proposed, to any federally 
recognized Tribal Nations with authority over the Tribal lands in which 
the discontinuance, reduction, or impairment of service is proposed, 
and also to the Secretary of Defense, Attn. Special Assistant for 
Telecommunications, Pentagon, Washington, DC 20301. Notice shall be in 
writing to each affected customer unless the Commission authorizes in 
advance, for good cause shown, another form of notice. Notice shall 
include the following:
* * * * *
    (d) The application to discontinue, reduce, or impair service, if 
filed by a domestic, non-dominant carrier, shall be automatically 
granted on the 31st day after its filing with the Commission without 
any Commission notification to the applicant unless either:
    (1) The Commission has notified the applicant that the grant will 
not be automatically effective, or
    (2) The applicant is subject to Sec.  63.602 of this chapter and 
does not include with its application the certification specified in 
Sec.  63.602(a) of this chapter. The application to discontinue, reduce 
or impair service, if filed by a domestic, dominant carrier, shall be 
automatically granted on the 60th day after its filing with the 
Commission without any Commission notification to the applicant unless 
either
    (3) The Commission has notified the applicant that the grant will 
not be automatically effective, or
    (4) The applicant is subject to Sec.  63.602 of this chapter and 
does not include with its application the certification specified in 
Sec.  63.602(a) of this chapter. For purposes of this section, an 
application will be deemed filed on the date the Commission releases 
public notice of the filing.
* * * * *
0
3. Add Sec.  63.602 to read as follows:


Sec.  63.602  Additional contents of applications to discontinue, 
reduce, or impair an existing retail service in favor of a retail 
service based on a newer technology.

    (a) In order to remain eligible for automatic grant, any domestic 
carrier that seeks to discontinue, reduce, or impair an existing retail 
service in favor of a retail service based on a newer technology shall 
include with its application, in addition to any other information 
required, a certification that there is an adequate substitute service 
available for the service to be discontinued, reduced, or impaired and 
that the substitute service provides adequate:
    (1) Network capacity and reliability;
    (2) Service quality;
    (3) Device and service interoperability, including interoperability 
with vital third-party services and devices;
    (4) Service for individuals with disabilities, including 
compatibility with assistive technologies;
    (5) PSAP and 9-1-1 service;
    (6) Cybersecurity;
    (7) Service functionality; and
    (8) Coverage.
    (b) Any domestic carrier that seeks to discontinue, reduce, or 
impair an existing retail service in favor of a retail service based on 
a newer technology that does not file the certification described in 
paragraph (a) of this section shall include with its application, in 
addition to any other information required, supporting evidence 
regarding the degree to which there is an adequate substitute or 
substitutes available for the service to be discontinued, reduced, or 
impaired, and supporting evidence regarding the degree to which the 
substitute service(s) provide adequate:
    (1) Network capacity and reliability;
    (2) Service quality;
    (3) Device and service interoperability, including interoperability 
with vital third-party services and devices;
    (4) Service for individuals with disabilities, including 
compatibility with assistive technologies;
    (5) PSAP and 9-1-1 service;
    (6) Cybersecurity;
    (7) Service functionality; and
    (8) Coverage.
    (c) A certification pursuant to paragraph (a) of this section must:
    (1) -Set forth a detailed statement explaining the basis for such 
certification;
    (2) Be executed by an officer or other authorized representative of 
the applicant; and
    (3) Meet the requirements of Sec.  1.16 of this chapter.

[FR Doc. 2015-23623 Filed 9-24-15; 8:45 am]
 BILLING CODE 6712-01-P