[Federal Register Volume 63, Number 205 (Friday, October 23, 1998)]
[Proposed Rules]
[Pages 56892-56900]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28477]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[CC Docket No. 96-61; FCC 98-258]


Policy and Rules Concerning the Interstate, Interexchange 
Marketplace

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: The Further Notice of Proposed Rulemaking examines 
restrictions that limit a common carrier's ability to bundle certain 
goods and services together and offer such bundles to the public. The 
goods and services at issue include telecommunications services, 
enhanced services, and customer premises equipment (CPE). Our rules 
currently prohibit telecommunications carriers from bundling 
telecommunications services with CPE, and place restrictions on the 
bundling of telecommunications services with enhanced services. Our 
current restrictions not only prevent carriers from offering distinct 
goods and/or services only on a bundled basis, but also prohibit 
carriers from offering ``package discounts,'' which enable customers to 
purchase an array of products in a package at a lower price than the 
individual products could be purchased separately. In this proceeding, 
we examine whether market conditions have changed sufficient to warrant 
lifting our restrictions on the bundling of CPE and enhanced services 
with basic telecommunications services.

DATES: Comments are due on or before November 23, 1998 and reply 
comments are due on or before December 23, 1998.

ADDRESSES: Comments and reply comments should be sent to Office of the 
Secretary, Federal Communications Commission, 1919 M Street, NW, Room 
222, Washington, DC 20554, with a copy to Janice Myles of the Common 
Carrier Bureau, 1919 M Street, NW, Room 544, Washington, DC 20554. 
Parties should also file one copy of any documents filed in this docket 
with the Commission's copy contractor, International Transcription 
Services, Inc., 1231 20th St., NW, Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT: Michael Pryor, Deputy Chief, Policy 
and Program Planning Division, Common Carrier Bureau, (202) 418-1580. 
Further information may also be obtained by calling the Common Carrier 
Bureau's TTY number: 202-418-0484.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking adopted October 1, 1998 and 
released October 9, 1998 (FCC 99-258). The full text of this Notice of 
Proposed Rulemaking is available for inspection and copying during 
normal business hours in the FCC Reference Center, 1919 M St., NW, Room 
239, Washington, DC. The complete text also may be obtained through the 
World Wide Web, at http://www.fcc.gov/Bureaus/Common Carrier/Orders/
fcc9735.wp, or may be purchased from the Commission's copy contractor, 
International Transcription Service, Inc., (202) 857-3800, 1231 20th 
St., NW, Washington, DC 20036.
    Initial Regulatory Flexibility Act Analysis: Pursuant to 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 
in this Further NPRM of Proposed Rulemaking (Further NPRM). Written 
public comments are requested on the IRFA. These comments must be filed 
in accordance with the same filing deadlines as comments on the rest of 
the Further NPRM, and should have a separate and distinct heading 
designating them as responses to the IRFA. The Commission shall send a 
copy of this Further NPRM, including the IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration in accordance with the 
RFA, 5 U.S.C. 603(a).

Synopsis of Notice of Proposed Rulemaking

I. Introduction

    1. In this Further Notice of Proposed Rulemaking (Further NPRM), we 
examine restrictions that limit a common carrier's ability to bundle 
certain goods and services together and offer such bundles to the 
public. The goods and services at issue include telecommunications 
services, enhanced services, and customer premises equipment (CPE). 
Bundling means selling different goods and/or services together in a 
single package. Our rules currently prohibit telecommunications 
carriers from bundling telecommunications services with CPE, and place 
restrictions on the bundling of telecommunications services with 
enhanced services. Our current restrictions not only prevent carriers 
from offering distinct goods and/or services only on a bundled basis, 
but also prohibit carriers from offering ``package discounts,'' which 
enable ``customers [to] purchase an array of products in a package at a 
lower price than the individual products could be purchased 
separately.''
    2. In this proceeding, we examine whether market conditions have 
changed sufficiently to warrant lifting our restrictions on the 
bundling of CPE and enhanced services with basic telecommunications 
services. At the time the Commission adopted the CPE and enhanced 
services bundling restrictions, the Commission recognized, ``[i]f the 
markets for components of [a] commodity bundle are workably 
competitive, bundling may present no major societal problems so long as 
the consumer is not deceived concerning the content and quality of the 
bundle.''
    3. This review is consistent with our overall effort to reduce 
regulation wherever conditions warrant. The review we take in this 
notice is also consistent with our statutory obligation, as part of our 
biennial review of regulations, to eliminate or modify regulations that 
``are no longer necessary in the public interest as the result of 
meaningful economic competition.''

II. Background

    4. In light of changes in the interexchange market over the past 
decade and the passage of the Telecommunications Act of 1996 (1996 
Act), the Commission issued a Notice of Proposed Rulemaking, 61 FR 
14717,

[[Page 56893]]

April 3, 1996, (Interexchange NPRM) on March 25, 1996, initiating a 
review of the Commission's regulation of interstate, domestic, 
interexchange services. The Interexchange NPRM, inter alia, sought 
comment on the Commission's tentative conclusion to revise its rule 
against bundling of common carrier communications services and CPE by 
allowing nondominant interexchange carriers to bundle CPE with 
interstate, domestic, interexchange telecommunications services.
    5. In the Interexchange Second Report and Order, 61 FR 59340, 
November 22, 1996, the Commission deferred action on its tentative 
conclusion to modify the CPE bundling restriction. The Commission noted 
that AT&T, in its comments on the Commission's tentative conclusions 
regarding CPE bundling, raised the issue of whether the Commission 
should also eliminate the restrictions on bundled packages of enhanced 
and interexchange services offered by nondominant interexchange 
carriers. The enhanced services restriction (which is not codified in 
the Commission's rules) was adopted by the Commission in the Computer 
II proceeding. In the Interexchange Second Report and Order, the 
Commission stated that it would issue a Further NPRM addressing the 
continued application of both the CPE and enhanced services bundling 
restrictions.
    6. We note, in addition, that Congress required the Commission to 
conduct a biennial review of regulations that apply to operations or 
activities of any provider of telecommunications service and to repeal 
or modify any regulation it determines to be ``no longer necessary in 
the public interest.'' Accordingly, the Commission has begun a 
comprehensive 1998 biennial review of telecommunications and other 
regulations to promote ``meaningful deregulation and streamlining where 
competition or other considerations warrant such action.'' In this 
Further NPRM, therefore, we seek comment on the extent to which the 
continued application of both the CPE and enhanced services bundling 
restrictions is ``no longer necessary in the public interest.''
    7. In order to develop a more detailed and complete record than was 
possible in the context of the much larger Interexchange Proceeding, we 
issue this Further NPRM focused solely on the bundling and package 
discount issues. In addition to developing a more complete record on 
the issues surrounding bundling and discounts on packages of CPE and 
interstate, domestic, interexchange services offered by nondominant 
interexchange carriers, we seek further comment on the issues raised by 
commenters. We believe that developing a more complete record on our 
previous tentative conclusions, and the issues raised by the parties, 
will facilitate more informed decision-making. We therefore ask 
interested parties to respond to the issues raised in this Further 
NPRM. To the extent that parties want any arguments made in response to 
the Interexchange NPRM to be made part of the record for this Further 
NPRM, we ask them to restate those arguments in their comments.

III. Discussion

A. CPE Unbundling
    8. In the Computer II proceeding, the Commission adopted a rule 
requiring all common carriers to sell or lease CPE separate and apart 
from such carriers' regulated communications services, and to offer CPE 
solely on a deregulated, non-tariffed basis. Section 64.702(e) of our 
rules provides:

    Except as otherwise ordered by the Commission, after March 1, 
1982, the carrier provision of customer-premises equipment used in 
conjunction with the interstate telecommunications network shall be 
separate and distinct from provision of common carrier 
communications services and not offered on a tariffed basis.

Carriers previously had provided CPE to customers as part of a bundled 
package of services. The Commission required carriers to separate the 
provision of CPE from the provision of telecommunications services 
because it found that continued bundling of telecommunications services 
with CPE could force customers to purchase unwanted CPE in order to 
obtain necessary transmission services, thus restricting customer 
choice and retarding the development of a competitive CPE market. The 
Commission recognized, however, that there may not be any 
anticompetitive effects of bundling ``[i]f the markets for components 
of [a] commodity bundle are workably competitive.''
    9. In the Interexchange NPRM, the Commission tentatively concluded 
that it should modify the CPE bundling restriction codified in section 
64.702(e) to allow nondominant interexchange carriers to bundle CPE 
with their interstate, domestic, interexchange services. The Commission 
noted that bundling may benefit consumers and promote competition, as 
long as the markets for the components of the bundle are substantially 
competitive so that carriers could not engage in anticompetitive 
conduct. The Commission tentatively concluded that, in light of the 
development of substantial competition in the markets for CPE and 
interstate, interexchange services, it was unlikely that nondominant 
interexchange carriers could engage in the type of anticompetitive 
conduct that led the Commission to prohibit the bundling of CPE with 
the provision, inter alia, of interstate, domestic, interexchange 
services. In support of this tentative conclusion, we note that the 
Commission has previously determined that the CPE market is 
competitive, and that the interstate, domestic, interexchange market is 
substantially competitive.
    10. We seek comment on whether the restriction against bundling CPE 
with interstate, domestic, interexchange services ``is no longer 
necessary in the public interest due to meaningful economic 
competition'' in both the CPE and interstate, domestic, interexchange 
markets. In particular, we seek further comment on our tentative 
conclusion that both the CPE market and the interstate, domestic, 
interexchange services market demonstrate sufficient competition that 
it is unlikely that nondominant interexchange carriers could engage in 
anticompetitive behavior should the Commission allow the bundling of 
CPE with interstate, domestic, interexchange services. Commenters 
should provide empirical data on the level of competition in the 
interexchange and CPE markets to support their comments on these 
issues. We note that IDCMA previously submitted comments arguing that 
an interexchange carrier, even if lacking market power, nevertheless 
might have the ability to force consumers of their interstate, 
interexchange service offerings to purchase CPE from that same 
interexchange carrier. We seek comment on IDCMA's argument. We also 
seek comment on whether interexchange carriers that lack market power 
could ``lock in'' customers, through the use of long-term contracts and 
early termination penalties, and thus impede competition in the CPE 
market.
    11. The Commission has previously found that bundling may be used 
as an ``efficient distribution mechanism'' and an ``efficient 
promotional device'' that may allow consumers to obtain goods and 
services ``more economically than if it were prohibited.'' We seek 
comment on whether we would benefit consumers and foster increased 
competition in the CPE and interexchange services markets by 
eliminating the CPE unbundling rule for nondominant interexchange 
carriers. We also seek comment on whether other

[[Page 56894]]

benefits or costs would result from modifying the CPE unbundling rule 
as it applies to these carriers. Parties should address whether 
amending the CPE unbundling rule for nondominant interexchange carriers 
would benefit consumers, by enabling carriers as well as CPE vendors to 
offer consumers innovative packages at prices that reflect reduced 
transaction costs. Parties should also address the contention raised by 
IDCMA, CERC, and ITAA in their previous comments that allowing 
nondominant interexchange carriers to bundle CPE and interstate, 
domestic, interexchange services would not benefit consumers, because 
the unbundling rule does not preclude interexchange carriers from 
offering one-stop shopping and creating service/equipment packages; it 
only requires them to charge separately for each component. We also 
seek comment on whether the Commission should adopt transition 
mechanisms if we were to permit bundling of CPE and interstate, 
domestic, interexchange services, and if so, what transition mechanisms 
should be adopted.
    12. In the Interexchange NPRM, the Commission also sought comment 
on the effect that the proposed amendment of Sec. 64.702(e) would have 
on the Commission's other policies or rules. We seek comment on whether 
the proposal to allow bundling and discounts for packages of CPE with 
interstate, domestic, interexchange service is consistent with the 
purposes of the Act. In particular, we seek further comment on whether 
there are any other provisions of the Act or the Commission's rules and 
regulations that are relevant to our analysis. For example, IDCMA and 
CERC assert in their prior comments that the Commission's proposal is 
inconsistent with the intent of Congress, as demonstrated by section 
629 of the Act, which prohibits the bundling of multichannel video 
programming service with the equipment used by consumers to access 
multichannel video programming service.
    13. In addition, we seek comment on whether or under what 
conditions bundling of CPE with interstate, domestic, interexchange 
services would violate the requirements in sections 201 and 202 of the 
Act that rates, practices, and classifications be just, reasonable, and 
not unjustly or unreasonably discriminatory. Parties should address 
whether, as IDCMA contends, an interexchange carrier that provides 
transmission service at a lower price to customers that agree to use 
carrier-provided CPE would violate sections 201 and 202. Parties should 
also address whether an interexchange carrier that provides CPE at a 
discount to customers that agree to use that carrier's interstate, 
domestic, interexchange services would violate sections 201 and 202. 
Parties should further address IDCMA's assertion that an interexchange 
carrier ``could choose to make transmission service available only to 
customers that agreed to obtain carrier-provided CPE,'' in violation of 
the nondiscrimination requirements found in section 202 of the Act.
    14. We also seek further comment on IDCMA's assertion that allowing 
interexchange carriers to bundle CPE with interstate, domestic, 
interexchange services would cause the Commission to reregulate CPE 
because interexchange carriers could offer CPE as a part of their 
regulated transmission offering. Parties should address IDCMA's 
contention that, because the Commission would have to ensure that a 
bundle of CPE and the regulated transmission offering comply with Title 
II pricing requirements, the Commission would necessarily need to 
impose Title II regulation on CPE. Parties should further address 
whether such concerns about reregulation of CPE would apply if the CPE 
and the interstate, domestic, interexchange services are priced 
separately, but a package discount is given for customers that purchase 
both products. U S West, citing the Cellular Bundling Order, 57 FR 
28466, June 25, 1992, suggests that the Commission could avoid the 
regulation of CPE by permitting packaging of CPE and transmission 
services, but continuing to require that CPE and common carrier 
services be treated, for regulatory purposes, as different products 
subject to different regulatory regimes (i.e. that CPE remain 
unregulated). We seek comment on whether such an approach is 
appropriate in this instance. We further seek comment on any other 
issues that may arise when CPE is packaged with a telecommunications 
service that is regulated under Title II of the Act.
    15. We further seek comment on the contention raised by IDCMA, 
CERC, and ITAA that permitting nondominant interexchange carriers to 
bundle CPE and interstate, domestic, interexchange services would allow 
such carriers to subsidize the provision of equipment from the charges 
for service. In addition, we seek comment on the basis upon which to 
allocate revenue between telecommunications services and CPE when 
priced as a package for purposes of calculating a carrier's universal 
service contribution.
    16. Moreover, we seek comment on whether and how the CPE bundling 
proposal would affect the Commission's Part 68 rules. Specifically, 
although we have not proposed modifications to the Commission's Part 68 
registration program in this Further NPRM, we seek comment on whether 
the ``demarcation point'' between telephone company communications 
facilities and terminal equipment, as defined in section 68.3 of the 
Commissions rules, would change if CPE and interexchange carriers 
network offerings were bundled or packaged together at a discount, and 
what effect, if any, this would have on the Commission's Part 68 
program.
    17. We further seek comment on whether and how the CPE bundling 
proposal would affect a carrier's disclosure obligation under 
Sec. 64.702(d)(2), the ``all-carrier rule.'' Section 64.702(d)(2) 
requires that all carriers owning basic transmission facilities 
disclose to the public all information relating to network design 
``insofar as such information affects either intercarrier 
interconnection or the manner in which interconnected CPE operates.'' 
We seek comment on the concern expressed by IDCMA and CERC that 
carriers that offer bundled CPE and service packages will not provide 
independent or unaffiliated equipment manufacturers with the necessary 
technical interface information. In particular, we seek comment on 
whether we need to require public disclosure of network interfaces 
beyond what is already required in section 64.702(d)(2) of our rules 
should we remove the CPE bundling restriction.
    18. In the Interexchange NPRM we also asked parties to comment on 
whether we should require interexchange carriers offering packages of 
CPE and interstate, domestic, interexchange services to continue to 
offer separately unbundled, interstate, domestic, interexchange 
services. We seek further comment on this issue. In particular, we seek 
further comment on whether this ``unbundled option'' requirement would 
benefit consumers by ensuring that those consumers that do not wish to 
purchase carrier-provided CPE may obtain transmission services only. 
For example, as U S West notes, the Commission allows bundling of 
cellular CPE and cellular service, provided that the cellular service 
is also offered separately. We also seek comment on whether any 
additional safeguards are necessary to protect consumers and how any 
such safeguards should be structured. We seek further comment on CERC's 
proposal that the Commission should require carriers that offer 
packages of CPE and interexchange services to state separately the 
charges for CPE and

[[Page 56895]]

service in both advertising materials and bills, even when the bundled 
service is being sold at a single price. We also seek comment on CERC's 
further suggestion that the Commission permit the customer to obtain 
the service separately at a price which, when added to the CPE price, 
does not exceed the price for obtaining CPE and the telecommunications 
service jointly. Parties should address whether adopting this proposal 
would undermine the benefits to consumers of allowing package discounts 
for bundles of CPE and interstate, domestic, interexchange services.
    19. In a related vein, we sought comment in the Interexchange NPRM 
on whether the U.S. Government's obligations under the General 
Agreement on Trade in Services (GATS) to ensure that ``service 
suppliers'' are permitted ``to purchase or lease and attach terminal or 
other equipment which interfaces with the [public telecommunications 
transport] network and which is necessary to supply [their] services'' 
implies that interexchange carriers should be required to offer 
separately unbundled, interstate, domestic, interexchange services on a 
nondiscriminatory basis if they are permitted to bundle CPE with the 
provision of such services. We seek further comment on whether amending 
the unbundling rule is consistent with U.S. international obligations 
under both the GATS and the North American Free Trade Agreement 
(NAFTA), and whether such obligations require that interexchange 
carriers bundling CPE and interstate, domestic, interexchange services 
also continue to offer such services separately and unbundled from CPE.
    20. We also seek comment on whether eliminating the prohibition 
against bundling CPE with interstate, domestic, interexchange services 
offered by nondominant interexchange carriers would adversely affect 
competition in the international market. The impact on the 
international market may arise because many carriers currently offer 
bundled interstate, domestic, interexchange, and international 
services. Nondominant interexchange carriers would thus be able to 
offer packages that include CPE, international services, and 
interstate, domestic, interexchange services. We therefore seek comment 
on whether there are any anticompetitive effects of allowing 
nondominant interexchange carriers to bundle CPE with interstate, 
domestic, interexchange services, when such services, in turn, are 
packaged with international services. Parties should address whether 
any anticompetitive effects they identify should preclude a nondominant 
interexchange carrier from bundling CPE with interstate, domestic, 
interexchange services, when such services, in turn, are packaged with 
international services. Parties should also address whether there are 
any safeguards to prevent anticompetitive conduct that are less 
restrictive than prohibiting such bundles.
    21. Furthermore, the Interexchange NPRM sought comment on whether 
and how the entry of incumbent local exchange carriers (LECs), 
including the Bell Operating Companies (BOCs), into the market for 
interstate, domestic, interexchange services should affect our 
analysis. After the Interexchange NPRM was issued, the Commission, in 
the LEC Classification Order, 62 FR 35974, July 3, 1997, classified the 
BOCs' section 272 affiliates as nondominant in the provision of in-
region, interstate, interLATA services. The Commission also classified 
the BOCs and their affiliates as non-dominant in the provision of out-
of-region interstate, domestic, interexchange services. The Commission 
concluded that the requirements established by, and the rules 
implemented pursuant to, sections 271 and 272 of the Act, together with 
other existing Commission rules, sufficiently limit the ability of a 
BOC and its section 272 affiliate to use the BOC's market power in the 
local exchange or exchange access markets to raise and sustain prices 
of interstate, interLATA services above competitive levels. In 
addition, the Commission classified independent incumbent LECs and 
their affiliates as nondominant in the provision of interstate, 
interexchange services. The Commission further required these 
independent LECs to provide in-region, interexchange services through 
separate affiliates that satisfy the requirements established in the 
Competitive Carrier Fifth Report and Order, 49 FR 34824, September 4, 
1984, but did not require such separation in order to be classified as 
nondominant in the provision of out-of-region interstate, interexchange 
services.
    22. Based on the safeguards imposed by the Act and the Commission's 
rules thereunder, we tentatively conclude that, to the extent the BOCs 
and their section 272 affiliates, as well as independent LECs and their 
affiliates, are classified as nondominant in the provision of 
interstate, domestic, interexchange services, these carriers may bundle 
CPE with such services to the same extent as other nondominant 
interexchange carriers. We seek comment on this tentative conclusion.
    23. We also seek comment on whether there are any anticompetitive 
effects of allowing any nondominant interexchange carrier to bundle CPE 
with interstate, domestic, interexchange services, when such services, 
in turn, are packaged with local exchange services. Parties should 
address whether any anticompetitive effects they identify should 
preclude a nondominant interexchange carrier from bundling CPE with 
interstate, domestic, interexchange services, when such services, in 
turn, are packaged with local exchange services. Parties should also 
address whether there are any safeguards to prevent anticompetitive 
conduct that are less restrictive than prohibiting such bundles.
    24. Furthermore, we seek comment on the broader question raised by 
SBC in previous comments in this proceeding of whether to continue the 
prohibition on bundling interstate CPE with local exchange or exchange 
access services. We recognize that nondominant interexchange carriers 
are entering the local exchange and exchange access markets. As they do 
so, they may be able to offer local exchange and exchange access 
services in conjunction with the bundled offering of CPE and 
interstate, domestic, interexchange services. Nondominant interexchange 
carriers may thus be able to offer a package that includes CPE, local 
exchange services, and interstate, domestic, interexchange services. 
SBC argues that local exchange carriers would be at a disadvantage, 
because they would be unable to offer packages that included CPE. In 
this Further NPRM, we seek comment on the issues raised by SBC as to 
whether to allow bundling of CPE with local exchange and exchange 
access services.
    25. We note that the basis for the Commission's tentative 
conclusion in the Interexchange NPRM to allow nondominant interexchange 
carriers to bundle CPE with interstate, domestic, interexchange 
services is that both the CPE and interstate, domestic, interexchange 
markets are substantially competitive and that nondominant 
interexchange carriers do not possess market power in the interstate, 
interexchange market. Thus, the Commission tentatively concluded in the 
Interexchange NPRM that allowing such carriers to bundle CPE with 
interstate, domestic, interexchange services is unlikely to lead to the 
anticompetitive conduct that led the Commission to prohibit the 
bundling of CPE with telecommunications services.
    26. We seek comment on whether a similar analysis should be adopted 
in assessing whether to allow the bundling of CPE with local exchange 
and

[[Page 56896]]

exchange access services. The analysis, as noted, contains two parts. 
The first part of the analysis focuses on the nature of the component 
markets. We seek comment on whether the differences in the structures 
of and the market conditions in the local exchange, exchange access, 
and interexchange markets warrant continued applicability of the CPE 
bundling restrictions to local exchange and exchange access markets. 
The second part of the analysis in the Interexchange NPRM concludes 
that allowing nondominant interexchange carriers to bundle CPE and 
interstate, domestic, interexchange services would be unlikely to lead 
to anticompetitive conduct, because such carriers do not have market 
power. We seek comment on whether there are carriers in the local 
exchange or exchange access markets that would similarly not raise 
anticompetitive concerns if allowed to bundle CPE with local exchange 
and exchange access services. In this regard, parties should address 
what role market power should play in the analysis and whether carriers 
that do not possess market power in the local exchange and exchange 
access markets would be able to engage in the anticompetitive conduct 
which led the Commission to prohibit such bundling. Parties should also 
address whether lifting the CPE bundling restrictions on only certain 
categories of carriers in the local exchange and exchange access 
markets would promote competition and the provision of innovative 
services and packages, thereby benefiting consumers.
    27. Finally, we seek comment on the jurisdictional issues that may 
arise if we allow bundling of CPE and local exchange services. We note 
that, although the Commission has deregulated CPE, the Commission has 
the authority, under Title I of the Communications Act, to regulate CPE 
that is used for both interstate and intrastate communications and to 
preempt inconsistent regulation on the part of the states. States have 
the authority to regulate the provision of local exchange services. As 
discussed above, an issue regarding the regulation of CPE may arise if 
CPE, which was deregulated by the Commission, is bundled or packaged 
with a regulated service. Moreover, jurisdictional questions may arise 
if CPE is bundled with local exchange services, because states have the 
authority to regulate local exchange services, while the Commission has 
the authority to regulate CPE. We therefore seek comment on what, if 
any, impact allowing the bundling or packaging of CPE with local 
exchange service may have on the states' regulation of local exchange 
service or on the Commission's regulation of CPE. We note that similar 
jurisdictional issues may arise with bundles or packages of 
interexchange and local exchange services, although we do not consider 
such jurisdictional issues in this proceeding.
B. Enhanced Services
    28. In the Computer II proceeding, the Commission adopted a 
regulatory scheme that distinguished between the common carrier 
offering of basic transmission services and the offering of enhanced 
services. The Commission defined a ``basic transmission service'' as 
the common carrier offering of ``pure transmission capability'' for the 
movement of information ``over a communications path that is virtually 
transparent in terms of its interaction with customer-supplied 
information.'' The Commission further stated that a basic transmission 
service should be limited to the offering of transmission capacity 
between two or more points suitable for a user's transmission needs. 
The common carrier offering of basic services is regulated under Title 
II of the Communications Act. In contrast, the Commission defined 
enhanced services as:

services, offered over common carrier transmission facilities used 
in interstate communications, which employ computer processing 
applications that act on the format, content, code, protocol or 
similar aspects of the subscriber's transmitted information; provide 
the subscriber additional, different, or restructured information; 
or involve subscriber interaction with stored information.

Enhanced services are not regulated under Title II of the 
Communications Act.
    29. We note that the 1996 Act does not utilize the Commission's 
basic/enhanced terminology, but instead refers to ``telecommunications 
services'' and ``information services.'' We concluded in the Non-
Accounting Safeguards Order, 62 FR 2927, January 21, 1997, that, 
although the text of the Commission's definition of ``enhanced 
services'' differs from the 1996 Act's definition of ``information 
services,'' the two terms should be interpreted to extend to the same 
functions. We recently issued a report reviewing the Commission's 
interpretation of the terms ``telecommunications services'' and 
``information services.'' In that report, we concluded that, in the 
1996 Act, Congress intended these terms to refer to distinct categories 
of services and that Congress sought ``to maintain the Computer II 
framework'' and the basic/enhanced distinction in its definition of 
``telecommunications services'' and ``information services.'' To avoid 
confusion in this Further NPRM, we will continue to use the terms 
``basic services'' and ``enhanced services'' to refer to the 
restrictions adopted in the Computer II proceeding.
    30. In the Computer II proceeding, the Commission required common 
carriers that own transmission facilities and provide enhanced services 
to ``acquire transmission capacity pursuant to the same prices, terms, 
and conditions reflected in their tariffs when their own facilities are 
utilized.'' This requirement has been interpreted in decisions since 
Computer II to mean that ``carriers that own common carrier 
transmission facilities and provide enhanced services must unbundle 
basic from enhanced services and offer transmission capacity to other 
enhanced service providers under the same tariffed terms and conditions 
under which they provide such services to their own enhanced service 
operations.''
    31. Although the Commission did not specifically seek comment in 
the Interexchange NPRM on the restriction against bundling of enhanced 
and basic telecommunications services, AT&T urged the Commission, in 
its comments, to issue a further notice of proposed rulemaking on this 
issue. Specifically, AT&T proposes that the Commission eliminate the 
prohibition on bundled packages of enhanced services and interstate, 
interexchange services offered by nondominant interexchange carriers. 
The Commission declined in the Interexchange Second Report and Order, 
61 FR 59340, November 22, 1996, to determine whether it should 
eliminate the CPE unbundling rule because it found, in part, that 
AT&T's request presented issues similar to those raised in the 
Interexchange NPRM relating to bundling of CPE with interstate, 
domestic, interexchange services by nondominant interexchange carriers. 
The Commission found in the Interexchange Second Report and Order that 
it did not have a sufficient record to address AT&T's proposal to 
remove the restriction on bundling enhanced services with interstate, 
domestic, interexchange services.
    32. We thus seek comment in this Further NPRM on whether we should 
remove the restrictions on the bundling of enhanced services with 
interstate, domestic, interexchange services offered by nondominant 
interexchange carriers. We also seek comment on whether the 
restrictions against bundling enhanced services with interstate, 
domestic, interexchange services offered by nondominant interexchange 
carriers is

[[Page 56897]]

no longer necessary in the public interest.
    33. As we noted above, the Commission found that BOC section 272 
affiliates would be classified as nondominant interexchange carriers. 
We note that, in the Non-Accounting Safeguards Order, the Commission 
allowed the BOCs' section 272 affiliates to bundle interLATA 
telecommunications service with interLATA information services, as long 
as the affiliate provided interLATA telecommunications services on a 
resale basis. The Commission noted that if ``a BOC's section 272 
affiliate were classified as a facilities-based telecommunications 
carrier (i.e., it did not provide interLATA telecommunications services 
solely through resale), the affiliate would be subject to a Computer II 
obligation to unbundle and tariff the underlying telecommunications 
services used to furnish any bundled service offering.'' In its 
discussion of this issue in the Non-Accounting Safeguards Order, the 
Commission noted that the market for interLATA information services 
``is fully competitive'' and the market for interLATA 
telecommunications services is ``substantially competitive.'' Because 
of these market conditions, the Commission stated that there was ``no 
basis for concern that a section 272 affiliate providing an information 
service bundled with an interLATA telecommunications service would be 
able to exercise market power.'' We seek comment on the effect on this 
proceeding of the decision in the Non-Accounting Safeguards Order to 
permit BOC section 272 affiliates that provide interLATA 
telecommunications services solely on a resale basis to bundle such 
telecommunications services and interLATA information services. 
Specifically, we seek comment on whether the enhanced services market 
and the interstate, domestic, interexchange services market are 
sufficiently competitive so that it is unlikely that nondominant 
interexchange carriers could engage in anticompetitive behavior should 
the Commission eliminate the restrictions on bundling of enhanced 
services with interstate, domestic, interexchange services. Commenters 
should provide empirical data on the level of competition in the 
interexchange and enhanced services markets to support their comments 
on these issues. We also seek comment on whether, as claimed by ITAA, 
AT&T or any other nondominant interexchange carriers have the ability, 
to discriminate in favor of their own enhanced service offerings.
    34. Commenters should also address AT&T's assertion that the 
rationale underlying the elimination of the CPE bundling restriction 
applies with equal force to the enhanced services bundling restriction, 
and therefore, that the Commission must lift the restriction on 
bundling enhanced services with interexchange services if the CPE 
bundling restriction is lifted. Commenters should explain how the 
similarities or differences between the CPE and enhanced services 
markets should affect our analysis. Commenters should address not only 
whether the issues raised in the CPE discussion above apply to the 
proposal to remove the enhanced services bundling restriction, but also 
whether additional issues are raised. Commenters should also discuss 
whether any transition mechanisms or safeguards, such as those 
discussed with respect to modifying the CPE unbundling rule, would be 
necessary or sufficient to protect against anticompetitive behavior if 
the Commission were to permit interexchange carriers to bundle enhanced 
services with interstate, domestic, interexchange services.
    35. As in the CPE bundling discussion above, we also seek comment 
on whether there are any anticompetitive effects of allowing 
nondominant interexchange carriers to bundle enhanced services with 
interstate, domestic, interexchange services, when such services, in 
turn, are packaged with international services.
    36. We seek comment on whether there are any anticompetitive 
effects of allowing nondominant interexchange carriers to bundle, or 
provide discounts on packages of, enhanced services and interstate, 
domestic, interexchange services, when such services, in turn, are 
packaged with local exchange services. Parties should further address 
whether any effects they identify should preclude a nondominant 
interexchange carrier from bundling, or offering discounts on packages 
of, enhanced services and interstate, domestic, interexchange services, 
when such services, in turn, are packaged with local exchange services. 
Parties should also address whether there are any safeguards to prevent 
anticompetitive conduct that are less restrictive than prohibiting such 
bundles.
    37. In addition, as in the CPE discussion above, we seek comment on 
the broader question of whether to amend the enhanced services bundling 
restriction to allow any carrier to bundle enhanced services with local 
exchange and exchange access services. Commenters should address not 
only whether the issues raised in the CPE discussion above apply to the 
elimination of the enhanced services bundling restriction, but also 
whether additional issues are raised. We note, as discussed below, that 
we consider in this Further NPRM only those services that are within 
the scope of the Commission's recognized jurisdiction. We recognize 
that states have authority to regulate local exchange services and 
enhanced services that are offered purely on an intrastate basis. Thus, 
in this Further NPRM, we do not consider the bundling of local exchange 
services and purely intrastate enhanced services.
    38. As noted above, the basis for the Commission's tentative 
conclusion in the Interexchange NPRM to allow nondominant interexchange 
carriers to bundle CPE with interstate, domestic, interexchange 
services is that both the CPE and interstate, domestic, interexchange 
markets are substantially competitive and that nondominant 
interexchange carriers do not possess market power in the interstate, 
interexchange market. We seek comment on whether a similar analysis 
should be adopted in assessing whether to allow the bundling of 
enhanced services with local exchange and exchange access services. We 
also seek comment on whether the differences in the structures of and 
the market conditions in the local exchange, exchange access, and 
interexchange markets warrant continued applicability of the enhanced 
services bundling restrictions to the local exchange and exchange 
access markets. We further seek comment on whether there are carriers 
in the local exchange or exchange access markets that would not raise 
anticompetitive concerns if allowed to bundle enhanced services with 
local exchange and exchange access services. In this regard, parties 
should address what role market power should play in the analysis and 
whether carriers that do not possess market power in the local exchange 
and exchange access markets would be able to engage in the 
anticompetitive conduct which led the Commission to prohibit such 
bundling. Parties should also address whether lifting the enhanced 
services bundling restrictions on only certain categories of carriers 
in the local exchange and exchange access markets would promote 
competition and the provision of innovative services and packages, 
thereby benefitting consumers. In addition, as in the CPE discussion 
above, we seek comment on what, if any, impact allowing the bundling of 
enhanced services with local exchange service may have on the states' 
regulation of local exchange

[[Page 56898]]

service and intrastate enhanced services, or on the Commission's 
regulation of enhanced services.
    39. We note that the Commission has authority to regulate 
interstate enhanced services. We also have authority to regulate 
jurisdictionally mixed enhanced services where it is ``not possible to 
separate the interstate and intrastate components'' and to preempt 
inconsistent regulations on the part of the states for the intrastate 
portion of those services where ``state regulations would negate valid 
FCC regulatory goals.'' Thus, we tentatively conclude that the 
questions upon which we seek comment in this Further NPRM fall within 
the scope of our authority.

IV. Procedural Matters

A. Ex Parte Presentations
    40. This matter shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's revised ex parte rules, 
which became effective June 2, 1997. Persons making oral ex parte 
presentations are reminded that memoranda summarizing the presentations 
must contain summaries of the substance of the presentations and not 
merely a listing of the subjects discussed. More than a one or two 
sentence description of the views and arguments presented is generally 
required. Other rules pertaining to oral and written presentations are 
set forth in Section 1.1206(b) as well.
B. Initial Regulatory Flexibility Act Analysis
    41. Pursuant to the Regulatory Flexibility Act (RFA), the 
Commission has prepared the following Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities of the policies and rules in this Further NPRM of Proposed 
Rulemaking (Further NPRM). Written public comments are requested on the 
IRFA. These comments must be filed in accordance with the same filing 
deadlines as comments on the rest of the Further NPRM, and should have 
a separate and distinct heading designating them as responses to the 
IRFA.
    42. Need for and Objectives of the Proposed Rules. The Commission 
is issuing this Further NPRM to review our regulatory framework for 
interstate, domestic, interexchange telecommunications services with 
regard to the bundling of customer premises equipment (CPE) and 
enhanced services. The Commission seeks comment on amending the 
Commission's rules and regulations restricting the bundling of CPE and 
enhanced services, respectively, with interexchange services, in our 
continuing effort to establish a pro-competitive, de-regulatory 
national policy framework. The Commission also seeks comment on the 
impact that amending these rules and regulations may have on the local 
market and on local exchange carriers, and whether the Commission 
should amend these rules and regulations for carriers in the local 
exchange or exchange access markets.
    43. Legal Basis. The proposed action is authorized under sections 
1, 2, 4, 10, 11 201-205, 215, 218, 220, 303 of the Communications Act 
of 1934, as amended, 47 U.S.C. 151, 152, 154, 160, 161, 201-205, 215, 
218, 220, 303.
    44. Description and Estimate of the Number of Small Entities To 
Which the Proposed Rules Will Apply. Under the RFA, small entities 
include small organizations, small businesses, and small governmental 
jurisdictions. 5 U.S.C. 601(6). The RFA generally defines the term 
``small business'' as having the same meaning as the term ``small 
business concern'' under the Small Business Act, 15 U.S.C. 632. A small 
business concern is one that: (1) is independently owned and operated; 
(2) is not dominant in its field of operation; and (3) meets any 
additional criteria established by the Small Business Administration 
(SBA). SBA has defined a small business for Standard Industrial 
Classification (SIC) category 4813 (Telephone Communications, Except 
Radiotelephone) to be a small entity when it has no more than 1,500 
employees.
    45. In this IRFA, we consider the potential impact of this Further 
NPRM on three categories of entities, ``small interexchange carriers,'' 
``small incumbent LECs,'' and ``small non-incumbent LECs.'' Consistent 
with our prior practice, we shall continue to exclude small incumbent 
LECs from the definition of a small entity for the purpose of this 
IRFA. Accordingly, our use of the terms ``small entities'' and ``small 
businesses'' does not encompass ``small incumbent LECs.'' Out of an 
abundance of caution, however, for regulatory flexibility analysis 
purposes, we will separately consider small incumbent LECs within this 
analysis and use the term ``small incumbent LECs'' to refer to any 
incumbent LECs that arguably might be defined by SBA as ``small 
business concerns.'' Finally, we note that our analysis below includes 
the description of those small entities that might be directly affected 
by this Further NPRM. We also recognize, however, that this Further 
NPRM may have an indirect effect on small CPE and enhanced services 
providers.
    46. Interexchange Carriers. The proposals in this Further NPRM 
would affect all interexchange carriers that meet the definition of a 
``small business concern.'' Neither the Commission nor the SBA has 
developed a definition of small entities specifically applicable to 
providers of interstate, domestic, interexchange services. The SBA, 
however, has defined small businesses for Standard Industrial 
Classification (SIC) category 4813 (Telephone Communications, Except 
Radiotelephone) to be small entities when they have no more than 1,500 
employees. According to our most recent data, 143 companies are engaged 
in the provision of interexchange services. Several of these carriers 
have more than 1,500 employees, and it seems certain that some of these 
carriers are not independently owned and operated. Because we cannot 
estimate with greater precision the number of interexchange carriers 
that would qualify as small business concerns under the SBA definition, 
we estimate that there are fewer than 143 small entity interexchange 
carriers that may be affected by the proposed decisions in this Further 
NPRM. We seek comment on this estimate.
    47. Incumbent LECs. SBA has not developed a definition of small 
incumbent LECs. The closest applicable definition under SBA rules is 
for telephone communications companies other than radiotelephone 
(wireless) companies. The most reliable source of information regarding 
the number of LECs nationwide of which we are aware appears to be the 
data that we collect annually in connection with the Telecommunications 
Relay Service (TRS). According to our most recent data, 1,371 companies 
reported that they were engaged in the provision of local exchange 
services. Although it seems certain that some of these carriers are not 
independently owned and operated, or have more than 1,500 employees, we 
are unable at this time to estimate with greater precision the number 
of LECs that would qualify as small business concerns under SBA's 
definition. Consequently, we estimate that there are fewer than 1,371 
small incumbent LECs that may be affected by the decisions and 
regulations adopted in this Further NPRM. We seek comment on this 
estimate.
    48. Non-Incumbent LECs. SBA has not developed a definition of small 
non-incumbent LECs. For purposes of this Further NPRM, we define the 
category of ``small non-incumbent LECs'' to include small entities 
providing local

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exchange services which do not fall within the statutory definition in 
section 251(h), including potential LECs, LECs which have entered the 
market since the 1996 Act was passed, and LECs which were not members 
of the exchange carrier association pursuant to Sec. 69.601(b) of the 
Commission's regulations. We believe it is impracticable to estimate 
the number of small entities in this category. We are unaware of any 
data on the number of LECs which have entered the market since the 1996 
Act was passed, and we believe it is impossible to estimate the number 
of entities which may enter the local exchange market in the near 
future. Nonetheless, we will estimate the number of small entities in a 
subgroup of the category of ``small non-incumbent LECs.'' According to 
our most recent data, 109 companies identify themselves in the category 
``Competitive Access Providers (CAPs) & Competitive LECs (CLECs).'' A 
CLEC is a provider of local exchange services which does not fall 
within the definition of ``incumbent LEC'' in section 251(h). Although 
it seems certain that some of the carriers in this category are CAPs, 
are not independently owned and operated, or have more than 1,500 
employees, we are unable at this time to estimate with greater 
precision the number of non-incumbent LECs that would qualify as small 
business concerns under SBA's definition. We seek comment on this 
estimate.
    49. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements. The Further NPRM does not place any reporting, 
record keeping, or other compliance requirements on small interexchange 
carriers or on small local exchange carriers. The Further NPRM does 
seek comment on what, if any, safeguards are necessary to guard against 
potential competitive abuses by interexchange carriers, or local 
exchange carriers, should the Commission amend its rules restricting 
bundling of CPE and enhanced services. If any such safeguards are 
adopted, they may have an impact on interexchange carriers and local 
exchange carriers that qualify as small business concerns.
    50. Steps Taken to Minimize Any Significant Economic Impact on 
Small Entities, and Significant Alternatives Considered. As mentioned 
above, the Commission believes that our proposed rules may have a 
significant economic impact on interexchange carriers and local 
exchange carriers insofar as they are small businesses. The rules we 
propose in this Further NPRM are designed to have a positive impact on 
interexchange carriers, including small interexchange carriers, and 
local exchange carriers, including small local exchange carriers, 
because such rules would remove restrictions from their operations. 
Such carriers would then be able to create and offer service and 
equipment packages that, under the current rules, cannot be bundled and 
offered. We seek comment on these tentative determinations, and on 
additional actions we might take in this regard to relieve burdens on 
small interexchange and local exchange carriers.
    51. Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules. The Commission is proposing to amend Sec. 64.702(e) of 
the Commission's Rules, 47 CFR 64.702(e), as well as the Commission's 
rules and regulations that restrict the bundling of CPE and enhanced 
services, respectively, with interexchange services. The Commission is 
also seeking comment on the impact that amending these rules and 
regulations may have on the local market and on local exchange 
carriers, and whether the Commission should amend these rules and 
regulations for carriers in the local exchange or exchange access 
markets. We are aware of no rules that may duplicate, overlap, or 
conflict with the proposed rules. We seek comment on this conclusion.
C. Comment Filing Procedures
    52. Pursuant to applicable procedures set forth in Secs. 1.415 and 
1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested 
parties may file comments on or before November 23, 1998 and reply 
comments on or before December 23, 1998. Comments may be filed using 
the Commission's Electronic Comment Filing System (ECFS) or by filing 
paper copies. See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121, May 1, 1998. Comments filed through the ECFS 
can be sent as an electronic file via the Internet to <http://
www.fcc.gov/e-file/ecfs.html>. Generally, only one copy of an 
electronic submission must be filed. In completing the transmittal 
screen, commenters should include their full name, Postal Service 
mailing address, and the applicable docket or rulemaking number, which 
in this instance is CC Docket No. 96-61. Parties may also submit an 
electronic comment by Internet e-mail. To get filing instructions for 
e-mail comments, commenters should send an e-mail to [email protected], and 
should include the following words in the body of the message, ``get 
form