[Federal Register Volume 73, Number 218 (Monday, November 10, 2008)]
[Proposed Rules]
[Pages 66585-66587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26813]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 51

[WC Docket No. 04-347; FCC 08-237]


Petition of South Slope for Classification as an Incumbent Local 
Exchange Carrier in the Oxford, Tiffin and Solon, IA Exchanges; Section 
251(h)(2)

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In the Notice of Proposed Rulemaking (NPRM), the Federal 
Communications Commission (Commission) seeks comment on whether South 
Slope Cooperative Telephone Company, Inc. (South Slope) should be 
treated as an incumbent local exchange carrier (LEC) for purposes of 
section 251 of the Communications Act of 1934, as amended, 
(Communications Act or Act) in the Iowa exchanges of Oxford, Tiffin and 
Solon as provided for in section 251(h)(2) of the Act. The Commission 
also requests comment on the appropriate regulatory treatment of South 
Slope and Iowa Telecommunications Services, Inc. (Iowa Telecom), the 
legacy incumbent LEC in those exchanges pursuant to section 251 of the 
Act, if the Commission concludes that South Slope should be accorded 
incumbent LEC treatment in the Oxford, Tiffin and Solon exchanges.

DATES: Comments are due on or before December 10, 2008. Reply comments 
are due on or before December 31, 2008.

ADDRESSES: You may submit comments, identified by WC Docket No. 04-347, 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.
     Mail: Parties choosing to file by paper must file an 
original and four copies of each filing in WC Docket No. 07-38. Filings 
can be sent by hand or messenger delivery, by commercial overnight 
courier, or by first-class or overnight U.S. Postal Service mail 
(although the Commission continues to experience delays in receiving 
U.S. Postal Service mail). If more than one docket or rulemaking number 
appears in the caption of this proceeding, commenters must submit two 
additional copies for each additional docket or rulemaking number. The 
Commission's mail contractor, Vistronix, Inc., will receive hand-
delivered or messenger-delivered paper filings for the Commission's 
Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 
20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand 
deliveries must be held together with rubber bands or fasteners. Any 
envelopes must be disposed of before entering the building. Commercial 
overnight mail (other than U.S. Postal Service Express Mail and 
Priority Mail) must be sent to 9300 East Hampton Drive, Capitol 
Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, 
and Priority Mail should be addressed to 445 12th Street, SW., 
Washington, DC 20554. All filings must be addressed to the Commission's 
Secretary, Office of the Secretary, Federal Communications Commission.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: [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: Claudia Pabo, Wireline Competition 
Bureau, Competition Policy Division, (202) 418-0940.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking in WC Docket No. 04-347, adopted on October 7, 
2008, and released on October 10, 2008. The complete text of this 
Notice of Proposed Rulemaking is available for public inspection Monday 
through Thursday from 8 a.m. to 4:30 p.m. and Friday from 8 a.m. to 
11:30 a.m. in the Commission's Consumer and Governmental Affairs 
Bureau, Reference Information Center, Room CY-A257, 445 12th Street, 
SW., Washington, DC 20554. The complete text is available also on the 
Commission's Internet site at http://www.fcc.gov. Alternative formats 
are available for persons with disabilities by contacting the Consumer 
and Governmental Affairs Bureau, at (202) 418-0531, TTY (202) 418-7365, 
or at [email protected]. The complete text of the decision may be 
purchased from the Commission's duplicating contractor, Best Copying 
and Printing, Inc., Room CY-B402, 445 12th Street, SW., Washington, DC 
20554, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 
488-5562, or e-mail at [email protected].

Synopsis of Further Notice of Proposed Rulemaking

    1. In 2004, South Slope, a cooperative telephone company providing 
service in Iowa, filed a petition requesting that it be treated as an 
incumbent LEC in the Iowa exchanges of Oxford, Tiffin and

[[Page 66586]]

Solon. In 2001, South Slope began to construct facilities in these 
three exchanges where Iowa Telecom is currently the incumbent LEC. 
South Slope estimates that it now serves approximately 90 percent of 
the subscribers in these three exchanges.
    2. In the NPRM, the Commission seeks comment on whether South Slope 
should be treated as an incumbent LEC for purposes of section 251 of 
the Communications Act in the Iowa exchanges of Oxford, Tiffin and 
Solon as provided for in section 251(h)(2) of the Act. The Commission 
also requests comment on the appropriate regulatory treatment of South 
Slope and Iowa Telecom, the legacy incumbent LEC in those exchanges 
pursuant to section 251(h)(1) of the Act, if the Commission concludes 
that South Slope should be accorded incumbent LEC treatment in the 
Oxford, Tiffin and Solon exchanges.
    3. Section 251(h)(1) of the Act defines an incumbent LEC as a local 
exchange carrier that, on the date of enactment of the 
Telecommunications Act of 1996, provided local exchange service in an 
area and was either a member of the National Exchange Carrier 
Association (NECA), or became a successor or assign of such a LEC. 
Section 251(h)(2) provides that the Commission may provide by rule for 
the treatment of a LEC as an incumbent LEC for the purposes of section 
251 if a three-part test is satisfied. Specifically, in order to find 
that a LEC should be treated as an incumbent LEC for purposes of 
section 251, the Commission must find that: (1) The LEC at issue 
occupies a market position within an area that is comparable to the 
position of a legacy incumbent LEC; (2) the LEC has ``substantially 
replaced'' the legacy incumbent LEC; and (3) the reclassification is 
consistent with the public interest, convenience and necessity and the 
purposes of section 251.
    4. The Commission sought comment on whether South Slope satisfies 
the three-part test in section 251(h)(2) and should be treated as an 
incumbent LEC for purposes of section 251 in the Oxford, Tiffin and 
Solon exchanges. The Commission did not address the treatment of South 
Slope as an incumbent in these three exchanges for purposes of 
interstate access charges, federal universal service support, and other 
interstate purposes. The Commission stated that these issues would be 
addressed as appropriate in other proceedings, including any study area 
boundary waiver petition that South Slope may file with the Commission.
    5. The Commission tentatively concluded that the Oxford, Tiffin and 
Solon exchanges are the relevant area for analyzing South Slope's 
market position. The Commission also tentatively concluded that South 
Slope occupies a market position in this area that is comparable to 
that occupied by a legacy incumbent LEC in light of its extensive 
facilities build-out and estimate that it now provides local exchange 
service to approximately 90 percent of the subscribers in these 
exchanges over its own facilities. The Commission sought comment on 
these tentative conclusions.
    6. In light of South Slope's estimate that it serves approximately 
90 percent of the subscribers in the Oxford, Tiffin and Solon exchanges 
over its own facilities, the Commission tentatively concluded that 
South Slope has substantially replaced Iowa Telecom as the local 
exchange service provider in these exchanges. The Commissions sought 
comment on this tentative conclusion.
    7. The Commission also sought comment on whether the treatment of 
South Slope as an incumbent LEC for purposes of section 251 in the 
Oxford, Tiffin and Solon exchanges would satisfy the public interest 
standard.
    8. The Commission has previously found that the Act does not 
automatically convert the legacy incumbent LEC into a competitive LEC 
when another LEC is designated as an incumbent LEC in a particular area 
under section 251(h)(2). Instead, the Commission concluded that the 
elimination of unnecessary regulation is appropriately addressed 
through the removal of dominant carrier regulation and forbearance 
under section 10 of the Act.
    9. The Commission tentatively concluded that Iowa Telecom should be 
given non-dominant regulatory treatment for interstate purposes in the 
Oxford, Tiffin and Solon exchanges if South Slope is accorded incumbent 
LEC status for purposes of section 251. The Commission sought comment 
on this tentative conclusion. The Commission also stated that Iowa 
Telecom may request additional deregulation in the Oxford, Tiffin and 
Solon exchanges by filing a formal petition for forbearance consistent 
with the Commission's rules.
    10. The Commission sought comment on whether it should address, in 
this proceeding, the long-term regulation of South Slope's interstate 
operations in the Oxford, Tiffin and Solon exchanges if South Slope is 
accorded section 251(h)(2) incumbent LEC status. If the Commission 
addresses long-term regulation of South Slope's interstate operations 
in these exchanges in the current proceeding, it asked what regulations 
should apply to South Slope's interstate offerings. For example, the 
Commission asked whether South Slope should be regulated as a dominant 
carrier in these three exchanges if it is treated as a section 
251(h)(2) incumbent LEC for purposes of section 251.

Ex Parte Presentations

    11. This proceeding shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. 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) of 
the Commission's rules as well.

Comment Filing Procedures

    12. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 
47 CFR Sec. Sec.  1.415, 1.419, interested parties may file comments 
and reply comments on or before the dates indicated on the first page 
of this document. All filings related to this Notice of Proposed 
Rulemaking should refer to WC Docket No. 04-347. Comments may be filed 
using: (1) The Commission's Electronic Comment Filing System (ECFS); 
(2) the Federal Government's rulemaking Portal; or (3) by filing paper 
copies. See Electronic Filing of Documents in Rulemaking Proceedings, 
63 FR 24,121 (1998).
     Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS, http://www.fcc.gov/cgb/ecfs 
or the Federal eRulemaking Portal, http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
    [cir] For ECFS filers, if multiple dockets or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to [email protected], and include the

[[Page 66587]]

following words in the body of the message, ``get form.'' A sample form 
and directions will be sent in response.
     Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    Filings can be sent by hand or messenger delivery, by commercial 
overnight courier, or by first-class or overnight U.S. Postal Service 
mail (although the Commission continues to experience delays in 
receiving U.S. Postal Service mail). All filings must be addressed to 
the Commission's Secretary, Office of the Secretary, Federal 
Communications Commission.
    [cir] The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
    [cir] 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.
    [cir] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 445 12th Street, SW., Washington, DC 20554.
    13. Comments and reply comments and any other filed documents in 
this matter may be obtained from Best Copy and Printing, Inc., in 
person at 445 12th Street, S.W., Room CY-B402, Washington, DC 20554, 
via telephone at (202) 488-5300, via facsimile at (202) 488-5563, or 
via e-mail at [email protected]. The pleadings will also be available for 
public inspection and copying during regular business hours in the FCC 
Reference Information Center, Room CY-A257, 445 12th Street, SW., 
Washington, DC 20554, and through the Commission's Electronic Comment 
Filing System (ECFS) accessible on the Commission's Web site, http://www.fcc.gov/cgb/ecfs.
    14. To request materials in accessible formats for people with 
disabilities (braille, large print, electronic files, audio format), 
send an e-mail to [email protected] or call the Consumer and Governmental 
Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).
    15. Comments and reply comments must include a short and concise 
summary of the substantive arguments raised in the pleading. Comments 
and reply comments also must comply with section 1.49 and all other 
applicable sections of the Commission's rules. All parties are 
encouraged to utilize a table of contents, and to include the name of 
the filing party and the date of the filing on each page of their 
submission.
    16. Commenters who file information that they believe should be 
withheld from public inspection may request confidential treatment 
pursuant to section 0.459 of the Commission's rules. Commenters should 
file both their original comments for which they request 
confidentiality and redacted comments, along with their request for 
confidential treatment. Commenters should not file proprietary 
information electronically. Even if the Commission grants confidential 
treatment, information that does not fall within a specific exemption 
pursuant to the Freedom of Information Act (FOIA) must be publicly 
disclosed pursuant to an appropriate request. See 47 CFR 0.461; 5 
U.S.C. 552. The Commission may grant requests for confidential 
treatment either conditionally or unconditionally. As such, the 
Commission has the discretion to release information on public interest 
grounds that does fall within the scope of a FOIA exemption.

Initial Paperwork Reduction Act of 1995 Analysis

    17. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995, Public 
Law 104-13. In addition, therefore, it does not contain any new or 
modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 47 U.S.C. 
3506(c)(4).

Legal Basis

    18. The legal basis for any action that may be taken pursuant to 
the NPRM is contained in sections 1, 2, 4(i)-(j), 201, 203, 214, 251, 
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 
152, 154(i)-(j), 201, 203, 214, 251, 303(r).

Initial Regulatory Flexibility Analysis

    19. In this NPRM, the Commission seeks comment on whether South 
Slope should be treated as an incumbent LEC for purposes of section 
251of the Act in the Iowa exchanges of Oxford, Tiffin and Solon 
pursuant to section 251(h)(2) of the Act. The Commission also requests 
comment on the appropriate regulatory treatment of South Slope and Iowa 
Telecom, the legacy incumbent LEC in those exchanges, if the Commission 
concludes that South Slope should be accorded incumbent LEC treatment 
in these exchanges under section 251(h)(2) of the Act.
    20. South Slope is a cooperative telephone company that provides 
local exchange service and exchange access service to approximately 
19,500 access lines in the general vicinity of Cedar Rapids and Iowa 
City, Iowa. Iowa Telecom is the legacy incumbent LEC that serves the 
Oxford. Solon, and Tiffin, Iowa exchanges. Because the proposed rule 
affects only South Slope and Iowa Telecom, we find that any potential 
action in this proceeding would not affect a substantial number of 
small entities.
    21. Therefore, we certify that the proposals in this NPRM, if 
adopted, will not have a significant economic impact on a substantial 
number of small entities.
    22. The Commission will send a copy of this NPRM, including a copy 
of this Initial Regulatory Flexibility Certification, to the Chief 
Counsel for Advocacy of the SBA. This initial certification will also 
be published in the Federal Register.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    23. None.

Ordering Clauses

    24. Accordingly, it is ordered that, pursuant to the authority 
contained in sections 1, 2, 4(i)-(j), 201, 203, 214, 251, and 303(r) of 
the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-
(j), 201, 203, 214, 251, and 303(r), this NPRM is adopted.
    25. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice, including the Initial Regulatory Flexibility 
Certification, to the Chief Counsel for Advocacy of the Small Business 
Administration.

Federal Communications Commission.
Marlene H. Dortch
Secretary.
 [FR Doc. E8-26813 Filed 11-7-08; 8:45 am]
BILLING CODE 6712-01-P