FCC Special Access Order Would Delegate Data Request to Wireline Bureau

The order is not the data request itself, but sets the parameters for the Wireline Bureau to write the request. So far, the three Democratic commissioners have voted to approve the order, but Republican commissioners Robert McDowell and Ajit Pai are holding off, FCC officials said. Officials said staff for McDowell and Pai have been talking with the office of Chairman Julius Genachowski, suggesting changes to a complicated, lengthy item -- a half-inch thick with more than 600 footnotes. FCC officials noted that the item circulated Oct. 9 and work has taken time, since both the McDowell and Pai offices want to ensure that the request doesn’t exclude any relevant data. “We want to get it out as soon as possible, but without sacrificing quality,” McDowell told us Thursday. The data request must still be cleared by the Office of Management and Budget as part of the Paperwork Reduction Act analysis.

With three yes votes, the “must vote” date is in the middle of November, but a non-voting office could get an automatic one-week extension, an FCC official said. That official thinks it’s unlikely the order will be released in the next few days. Until McDowell and Pai vote, their offices can make suggestions about what the circulating order should say, an agency official said. “It’s not set in stone until the fifth vote is cast.”

Ex parte filings show that the Republican offices are meeting regularly with telecom providers to flesh out details of the request. USTelecom, Verizon, AT&T and CenturyLink executives met separately with aides to McDowell and Pai Tuesday to emphasize that the commission should take a “forward-looking view of the market to evaluate contestability,” said a USTelecom filing (http://xrl.us/bnv2m8). The commission should mandate data collection on where providers have the ability to compete or provide retail or wholesale high-capacity services, with maps if possible, the association said.

USTelecom also reiterated its opposition to a “de minimis” exemption, proposed by CLECs to ease the burden on small companies whose data might be of little use to the commission (CD Sept 27 p4). “Such an approach would exclude significant amounts of competitive facilities from the Commission’s ultimate data base,” with no “economically or statistically valid basis” for establishing the exemption without first identifying the size of the geographic market, USTelecom said. “Any attempt to establish a de minimis exception would necessarily require the Commission to pre-judge” one of the principal questions for which it is gathering data in the first place, the association said.

NCTA and Comcast executives met with Pai and McDowell staffers this week to discuss their “overall concern” about the “substantial burdens” the request could pose on competitive providers (http://xrl.us/bnv2px). “We understand that the Bureau is contemplating requiring competitive providers to submit information on every building and every customer they serve anywhere in the nation, the price of every service offered to those customers, and significant detail regarding pricing strategies and future deployment plans, all of which would be made available to consultants and attorneys employed by the incumbent local exchange carriers,” the company and association said. “Such information regarding the inner workings of competitive businesses that are investing private capital in fiber-based networks is far more than is needed for the Commission to establish regulatory policy in this area and cannot be reconciled with the letter or spirit of the Paperwork Reduction Act or the President’s Executive Order 13563.” That 2011 executive order on “improving regulation and regulatory review” requires regulators to use the “best, most innovative and least burdensome tools for achieving regulatory ends,” said NCTA and Comcast.

NCTA said its concerns could be “mitigated” if the commission directs the bureau to permit CLECs to submit a list of street addresses they serve, rather than latitude and longitude data for those buildings, and makes clear that there is no obligation to submit internal documents on pricing decisions, or data on future deployment plans that hasn’t already been made available to the public. NCTA wants the commission to preclude third parties from reviewing data that’s not publicly available, until the commission determines it will rely on the data for new rules. NCTA and Comcast also discussed their concerns with Wireline Bureau Chief Julie Veach and a Genachowski aide.

A Wireline Bureau official asked Bright House Networks about the possibility of providing addresses of commercial customers, latitude and longitude information, whether there’s a fiber connection to the customer, the amount of sold bandwidth, and whether the service is being provided to a cell site, according to the company’s ex parte on its Wednesday meeting with bureau officials. The staffer suggested the bureau could collect the information “in the form of copies of BHN’s billing data, which would be subject to a second level Protective Order,” the filing said. BHN responded by noting that that customer data is “among the most competitively sensitive of all of BHN’s records.” Providing that pricing information would “stray far from the goal of this proceeding,” which is to establish a new pricing flexibility test for ILECs, BHN said. CenturyLink officials also spoke with bureau staff Wednesday to discuss the feasibility of providing 2010 data on special access, they said (http://xrl.us/bnv2oo).