[Federal Register Volume 66, Number 231 (Friday, November 30, 2001)]
[Proposed Rules]
[Pages 59759-59761]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29746]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 51

[CC Docket No. 01-318, CC Docket No. 98-56, CC Docket No. 98-157, CC 
Docket No. 96-98, CC Docket No. 98-141; FCC 01-331]


Performance Measurements and Standards for Unbundled Network 
Elements and Interconnection

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This document seeks comment on whether the Commission should 
adopt a select group of measurements and standards for evaluating 
incumbent local exchange carrier (LEC) performance in the provisioning 
of facilities that are used by their carrier-customers to compete for 
end-user customers. In particular, the Commission offers for comment 
performance measurements and standards that could apply to the key 
aspects of pre-ordering, ordering, provisioning, and maintaining those 
facilities and services that are critically important to ensuring that 
competitive LECs can enter the market for local exchange services, as 
contemplated by the Telecommunications Act of 1996. The Commission 
therefore seeks comment on measurements and standards for collocation, 
loop, transport, and interconnection trunk facilities. The Commission 
also seeks comment on enforcement policies and guidelines should the 
Commission promulgate national measurements and standards for unbundled 
network elements and interconnection.

DATES: Comments are due December 31, 2001 and Reply Comments are due 
January 22, 2002.

FOR FURTHER INFORMATION CONTACT: Cathy Carpino, Attorney Advisor, 
Policy and Program Planning Division, Common Carrier Bureau, (202) 418-
1580.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) in CC Docket No. 01-318, FCC 01-331, 
adopted November 8, 2001, and released November 19, 2001. The complete 
text of this NPRM is available for inspection and copying during normal 
business hours in the FCC Reference Information Center, Portals II, 445 
12th Street, SW., Room CY-A257, Washington, DC, 20554. This document 
may also be purchased from the Commission's duplicating contractor, 
Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, 
Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, 
or via e-mail [email protected]. It is also available on the 
Commission's website at http://www.fcc.gov.

Synopsis of the Notice of Proposed Rulemaking

    1. Background. The Commission intends to fold all relevant 
proceedings relating to measurements and standards for UNEs and 
interconnection into the instant proceeding. Toward that end, the 
Commission terminates CC Docket No. 98-56 and urges all interested 
parties that filed comment in that docket to participate in this 
proceeding. Moreover, the Commission incorporates by reference the 
record generated by the Association for Local Telecommunications 
Services' petition related to UNE and interconnection measurements and 
standards. Finally, the Commission requests further comment on a 90-day 
collocation provisioning interval and incorporates by reference the 
record on this issue created in CC Docket Nos. 98-147 and 96-98.
    2. Legal Authority, Enforcement and Scope. Although the Commission 
seeks comment on whether to adopt national performance measurements and 
standards, its authority to do so is clear, pursuant to sections 
201(b), 251 and 252 of the Communications Act of 1934, as amended 
(Act). The Commission recognizes that many state commissions have 
adopted extensive performance measurements, standards, and penalty 
plans to capture incumbent LECs' performance in provisioning UNEs, 
interconnection trunks and collocation. Accordingly, the Commission 
seeks comment on how to build on states' efforts in developing national 
performance measures and standards.
    3. The Commission seeks comment on whether and how state and 
federal performance requirements could be harmonized and streamlined 
through the adoption of national measurements and standards. Should 
this harmonization not occur, however, the adoption of national 
measurements and standards could increase overall reporting burdens on 
incumbent LECs. Thus, the Commission seeks comment on the possibility 
of national performance measurements and standards reducing an 
incumbent's reporting requirements and on the likelihood of differences 
between state and national performance requirements. In particular, the 
Commission seeks comment on whether it is consistent with the 
deregulatory emphasis of the Act to have separate sets of federal and

[[Page 59760]]

state performance measurements and standards.
    4. The Commission seeks comment as to whether it should exercise 
the full panoply of enforcement mechanisms available to it under the 
Act to enforce any national measurements and standards it might adopt. 
Should the Commission establish specific enforcement policies or 
guidelines for responding to violations? The Commission also seeks 
comment on whether national measurements, standards, and reporting 
requirements for UNEs, interconnection trunks, and collocation should 
apply to all incumbent LECs and not just to some category of incumbent 
LECs.
    5. Performance measurements and standards. The Commission sets 
forth for comment a core set of twelve performance measurements for 
four basic functions obtained from the incumbent LEC: pre-ordering, 
ordering, provisioning, and maintenance and repair services. The 
Commission seeks comment on the following questions, among others, with 
respect to those twelve measurements: (1) Are there other performance 
metrics that better measure an incumbent LEC's performance and are less 
burdensome? (2) What associated penalties, if any, should apply if the 
incumbent LEC does not meet the standard established for a particular 
metric? and (3) What are the appropriate definitions, exclusions, 
business rules, and levels of disaggregation to apply to the metrics 
set forth for comment?
    6. Implementation, Reporting Procedures, Performance Evaluation and 
Statistical Issues. The Commission seeks comment regarding: (1) Data 
validation and audits procedures, (2) whether national performance 
measures and standards would benefit from workshops based on general 
guidance from the Commission regarding scope, number and applicability 
of performance measures and standards, (3) periodic review of the 
measurements and sunset provisions, and (4) reporting procedures.

Initial Regulatory Flexibility Analysis

    7. As required by the Regulatory Flexibility Act (RFA), as amended, 
the Commission has prepared this Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on a 
substantial number of small entities by the policies and rules proposed 
in this document. Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments on the document provided above. The 
Commission will send a copy of the document, including this IRFA, to 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA). In addition, this document will be published in the Federal 
Register.

Need for, and Objectives of, the Proposed Rules

    8. In this document, the Commission seeks comment on whether it 
should adopt a limited number of measurements and standards for 
evaluating incumbent LEC performance with respect to pre-ordering, 
ordering, provisioning, repair, and maintenance functions that are 
critical for competitive carriers to compete for end-user customers. We 
seek comment on the use and scope of any performance requirements and, 
as a threshold matter, on how to balance competitors' concerns about 
poor provisioning of UNEs, interconnection trunks and collocation with 
the incumbent LECs' concern about the number and cost of state and 
federal measurements and standards. Moreover, we seek comment on 
whether these are problems for which intervention in the form of 
national measurements and standards is more beneficial than harmful, 
and expect that the comments we receive in response to this document 
will inform our decision. In addition, we seek comment on how these 
standards may benefit the industry in general by increasing the 
uniformity of expectations and creating clear, predictable, and 
enforceable standards. Finally, we seek comment on the most appropriate 
periodic review or sunset mechanism should we adopt a set of 
measurements and standards.

Legal Basis

    9. The legal basis for any action that may be taken pursuant to 
this document is contained in sections 1, 2, 4, 201, 202, 251, 252 and 
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
152, 154, 201, 202, 251, 252 and 303(r).

Description and Estimate of the Number of Small Entities to Which 
the Proposed Rules Will Apply

    10. The RFA directs agencies to provide a description of, and, 
where feasible, an estimate of the number of small entities that will 
be affected by any rules. The RFA defines the term ``small entity'' as 
having the same meaning as the terms ``small business,'' ``small 
organization,'' and ``small business concern'' under section 3 of 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.
    11. 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.
    12. Local Exchange Carriers. The most reliable source of 
information regarding the number of LECs nationwide appears to be the 
data that we collect annually in connection with the Telecommunications 
Relay Service. According to our most recent data, there are 1,335 
incumbent LECs. Additionally, it appears that 1,037 of these entities 
have 1,500 or fewer employees although we are uncertain whether all of 
these carriers are independently owned and operated.

Description of Projected Reporting, Recordkeeping and Other 
Compliance Requirements

    13. This document acknowledges that the reporting requirements may 
require incumbent LECs to modify existing computer systems to collect 
the necessary data and that there may be a certain level of expense 
involved in generating performance measurements and statistical 
analyses. However, as noted below, the Commission already requires 
several BOCs to file such performance reports. Moreover, many states 
require certain carriers to report their performance with respect to 
similar, if not identical, measurements and standards. To date, states 
where the BOC has received section 271 approval have reporting 
requirements that are more extensive than those contemplated in this 
document. Therefore, we expect that any proposal we may adopt pursuant 
to this document will not substantially increase existing reporting, 
recordkeeping or other compliance requirements. Finally, the document 
requests comment on how national performance measurements and standards 
could serve to minimize inconsistent or redundant state and federal 
requirements, and thereby not

[[Page 59761]]

increase incumbent LECs' overall regulatory burdens.

Steps Taken to Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    14. 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.
    15. A key objective of this proceeding is to adopt performance 
measurements and reporting requirements that will not ultimately 
increase the overall regulatory burdens on carriers, particularly small 
entities. As explained in detail, a primary goal in considering whether 
to establish national performance measurements and standards is whether 
such requirements can serve to rationalize the multiple regulatory 
requirements imposed on carriers. Additionally, the document expressly 
seeks comment on how adopted rules should be modified to take into 
account any particular concerns of small, midsized or rural incumbent 
LECs. The document also requests comment on how measurements could be 
tailored to address the unique characteristics of the areas in which 
these carriers are located. Finally, we seek comment on whether, as an 
alternative, small entities should file reports less frequently than 
larger incumbent LECs and whether the Commission should delay the 
implementation of any new reporting requirements for small entities.

Federal Rules that May Duplicate, Overlap, or Conflict with the 
Proposed Rules

    16. A modest amount of duplication, overlap, or conflict may exist 
between the measurements offered for comment in this document and the 
measurements that certain BOCs report as part of their merger 
conditions. This document requests comment on whether and how federal 
performance requirements could be harmonized and possibly streamlined 
through the adoption of national measurements and standards, expressly 
mentioning the Commission's Merger Orders. Again, a goal of this 
proceeding is to minimize inconsistent or redundant federal 
requirements.

Ordering Clauses

    17. Accordingly, pursuant to Sections 1, 2, 4, 201, 202, 251, 252 
and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 
151, 152, 154, 201, 202, 251, 252 and 303(r), a Notice of Proposed 
Rulemaking is Adopted. 
    18. CC Docket No. 98-56 is hereby Terminated. 
    19. Commission's Consumer Information Bureau, Reference Information 
Center, Shall Send a copy of this document, including the Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

    Federal Communications Commission
Magalie Roman Salas,
Secretary.
[FR Doc. 01-29746 Filed 11-29-01; 8:45 am]
BILLING CODE 6712-01-P