[Federal Register Volume 74, Number 232 (Friday, December 4, 2009)]
[Proposed Rules]
[Pages 63702-63703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29019]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, 61 and 69

[WC Docket No. 05-25; RM-10593; DA 09-2388]


Parties Asked To Comment on Analytical Framework Necessary To 
Resolve Issues in the Special Access Notice of Proposed Rulemaking

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: This document invites interested parties to comment on the 
appropriate analytical framework for examining the various issues that 
have been raised in the rulemaking proceeding on special access 
services pending before the Commission.

DATES: Comments are due on or before January 19, 2010 and reply 
comments are due on or before February 17, 2010.

ADDRESSES: You may submit comments, identified by WC Docket No. 05-25 
and RM-10593, 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://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     E-mail: [email protected], and include the following words in 
the body of the message: ``get form.'' A sample form and directions 
will be sent in response.
     First-class or overnight U.S. Postal Service mail: 
Secretary, Federal Communications Commission, 445 12th Street, SW., 
Washington DC 20554.
    Detailed instructions for submitting comments, including how to 
submit comments by hand, messenger delivery or by commercial overnight 
courier, and additional information on the rulemaking process are 
contained in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Marvin Sacks, Wireline Competition 
Bureau, Pricing Policy Division (202) 418-2017, [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Public 
Notice, DA 09-2388, released on November 5, 2009. The full text of this 
document is available for public inspection during regular business 
hours at the FCC Reference Information Center, Portals II, 445 12th 
Street, SW., Washington, DC 20554 and may be viewed on the Commission's 
Web site at http://www.fcc.gov/.
    Pursuant to the Commission's rules governing notices of proposed 
rulemakings, 47 CFR 1.415, 1.419, the Commission invites interested 
parties to comment on an appropriate analytical framework for examining 
the various issues raised in the Special Access NPRM, 70 FR 19381, 
April 13, 2005. The term ``special access services'' encompasses all 
services that do not use local switches; these include services that 
employ dedicated facilities that run directly between the end user and 
an IXC's point of presence, where an IXC connects its network with the 
LEC network, or between two discrete end user locations. In the Special 
Access NPRM, the Commission explained that an examination of the 
current state of competition for special access facilities is critical 
to determine whether the Commission's pricing flexibility rules have 
worked as intended. The Commission invited comment on whether the 
available data and actual marketplace developments support the 
predictive judgments that underlie the special access pricing 
flexibility rules. 47 CFR 69.701 et seq. In addition, the Commission 
sought comment on appropriate measures to ensure that price cap rates 
for special access services remain just and reasonable after expiration 
of the CALLS Plan. Subsequently, in the Special Access Refresh the 
Record PN, 72 FR 40814, July 25, 2007, the Commission sought updated 
information on these issues, and parties continue to provide their 
views to Commission staff.
    Some parties assert that the Commission's current rules are working 
as intended and contend there is extensive actual and potential 
competition in the market for special access. Other parties assert that 
there is little or no competition for special access services, and the 
current pricing flexibility and price cap regulations have resulted in 
supracompetitive prices and significant overearning by incumbents. The 
Commission would benefit from a clear explanation by the parties of how 
it should use data to determine systematically whether the current 
price cap and pricing flexibility rules are working properly to ensure 
just and reasonable rates, terms, and conditions and to provide 
flexibility in the presence of competition.
    Therefore, in the Public Notice, the Commission seeks concrete 
suggestions on the appropriate analytical framework for determining 
whether the current rules are working. For example, should the 
Commission use a market power analysis to assess the current special 
access regulatory regime? Suggestions should be both analytically 
rigorous (i.e., fact-based and systematic) and administratively 
practical (i.e., requiring a manageable amount of data collection and 
analysis). Once the Commission adopts an analytical approach enabling a 
systematic determination of whether or not the current regulation of 
special access services is ensuring rates, terms, and conditions that 
are just and reasonable as required by the Act, 47 U.S.C. 201(b), it 
can determine what, if any, specific problems there are with the 
current regime and formulate specific solutions as necessary. The 
analytical framework that parties propose should address how to answer 
key questions raised in the Special Access NPRM, including:
    1. Do the Commission's pricing flexibility rules ensure just and 
reasonable rates?
    (A) Are the pricing flexibility triggers, which are based on 
collocation by competitive carriers, an accurate proxy for the kind of 
sunk investment by competitors that is sufficient to constrain 
incumbent LEC prices, including for both channel terminations and 
inter-office facilities?
    (B) If so, are the triggers set at an appropriate level?
    2. Do the Commission's price cap rules ensure just and reasonable 
special access rates?
    3. Do the Commission's price cap and pricing flexibility rules 
ensure that terms and conditions in special access tariffs and 
contracts are just and reasonable?
    Parties should focus their comments on the analytical framework, 
including applicable law, they believe the Commission should use to 
arrive at fact-based answers to each of the key questions above. 
Parties should address whether, in applying their proposed analytical 
framework, the Commission can answer the questions based upon data 
contained in the existing record. If so, what record data must the 
Commission examine to answer the question? If not, precisely what 
additional data should the Commission collect and from whom, and why? 
Parties should also identify and address administrative concerns and 
practical considerations, such as obstacles to obtaining or evaluating 
specified data, and the time frame they believe would be required to 
perform their proposed analysis. To facilitate the Commission's review, 
parties are encouraged to

[[Page 63703]]

organize their comments by the key question numbers used in the Public 
Notice. If a party believes additional questions must be resolved, it 
should set forth the questions, provide an analytical framework to 
answer such questions, and describe the data necessary to answer the 
questions.
    For purposes of illustration, the Public Notice included examples, 
which are based on the record in the special access proceeding, of 
proposed analytical frameworks. These examples are not intended to 
limit the types of analytical framework or data collection parties 
suggest in responding to the Public Notice, but rather to highlight 
some of the general arguments of which the Commission is aware.

Paperwork Reduction Act Analysis

    This document does not contain proposed information collection(s) 
subject to the Paperwork Reduction Act of 1995 (PRA), 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 44 U.S.C. 3506(c)(4). This document 
invites interested parties to comment on the appropriate analytical 
framework for examining the various issues that have been raised in the 
rulemaking proceeding on special access services pending before the 
Commission.

Procedural Matters

Ex Parte Requirements

    This matter shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. 47 CFR 
1.1200 et seq. 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 generally is required. 47 CFR 
1.1206(b)(2). Other rules pertaining to oral and written presentations 
are set forth at 47 CFR 1.1206(b).

Comment Filing Procedures

    Pursuant to Commission rules governing notices of proposed 
rulemakings, interested parties may file comments on or before January 
19, 2010 and reply comments on or before February 17, 2010. 47 CFR 
1.415, 1.419. All pleadings must reference WC Docket No. 05-25 and RM-
10593. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS); (2) the Federal Government's eRulemaking 
Portal; or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments 
may be filed electronically using the Internet by accessing the ECFS at 
http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: 
http://www.regulations.gov. Filers should follow the instructions 
provided on the websites for submitting comments. For ECFS filers, if 
multiple docket or rulemaking numbers appears 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, commenters should send an 
e-mail to [email protected], and should include the following words in the 
body of the message: ``get form.'' A sample form and directions will be 
sent in reply.
    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, commenters 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). Parties are strongly encouraged to 
file comments electronically using the Commission's ECFS. All filings 
must be addressed to the Commission's Secretary, Marlene H. Dortch, 
Office of the Secretary, Federal Communications Commission.
    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. 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, Express, and Priority mail should be addressed to 
445 12th Street, SW., Washington DC 20554.
    Parties should also send a copy of their filings to Margaret 
Dailey, Pricing Policy Division, Wireline Competition Bureau, Federal 
Communications Commission, Room 5-A232, 445 12th Street, SW., 
Washington, DC 20554, or by e-mail to [email protected]. Parties 
shall also serve one copy with the Commission's copy contractor, Best 
Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room 
CY-B402, Washington, DC 20554, (202) 488-5300 or (800) 378-3160, or via 
e-mail to [email protected].
    Documents in WC Docket No. 05-25 and RM-10593 are available for 
public inspection and copying during business hours at the FCC 
Reference Information Center, Portals II, 445 12th Street, SW., 
Washington, DC 20554. The documents may also be purchased from BCPI, 
Web site http://www.bcpiweb.com, telephone (202) 488-5300 or (800) 378-
3160, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail 
[email protected]. These documents may also be viewed on the Commission's 
Web site at http://www.fcc.gov/. People with Disabilities: To request 
materials in accessible formats for people with disabilities (braille, 
large print, electronic files, audio format) or to request reasonable 
accommodations for filing comments (accessible format documents, sign 
language interpreters, CART, etc.), send an e-mail to [email protected] or 
call the Consumer & Governmental Affairs Bureau at (202) 418-0530 
(voice), (202) 418-0432 (TTY).

List of Subjects

47 CFR Part 0

    Organization and functions (Government agencies).

47 CFR Part 1

    Administrative practice and procedure, Communications common 
carriers, Telecommunications.

47 CFR Parts 61 and 69

    Communications common carriers, Reporting and recordkeeping 
requirements, Telephone.

Federal Communications Commission.
Kirk S. Burgee,
Chief of Staff, Wireline Competition Bureau.
 [FR Doc. E9-29019 Filed 12-3-09; 8:45 am]
BILLING CODE 6712-01-P