[Federal Register Volume 80, Number 3 (Tuesday, January 6, 2015)]
[Proposed Rules]
[Pages 450-473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-30776]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 51

[PS Docket No. 14-174, GN Docket No. 13-5, RM-11358, WC Docket No. 05-
25, RM-10593; FCC 14-185]


Ensuring Customer Premises Equipment Backup Power; Technology 
Transitions; Copper Retirement; and Discontinuance of Service

AGENCY: Federal Communications Commission

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) initiates a rulemaking seeking public comment on: Ensuring 
reliable back-up power for consumers of IP-based voice and data 
services across networks that provide residential fixed service that 
substitutes for and improves upon the kind of traditional telephony 
used by people to dial 911; protecting consumers by ensuring they are 
informed about their choices and the services provided to them when 
carriers retire legacy facilities (e.g., copper networks) and seek to 
discontinue legacy services (e.g., basic voice services); and 
protecting competition where it exists today, so that the mere change 
of a network facility or discontinuance of a legacy service does not 
deprive small- and medium-sized businesses, schools, libraries, and 
other enterprises of the ability to choose the kinds of innovative 
services that best suit their needs. The proposed rules and the comment 
process that follows will help the Commission ensure that the 
fundamental values of competition, consumer protection, public safety, 
and national security are not lost merely because technology changes.

DATES: Submit comments on or before February 5, 2015. Submit reply 
comments on or before March 9, 2015.

ADDRESSES: You may submit comments, identified by PS Docket No. 14-174, 
GN Docket No. 13-5, RM-11358, WC Docket No. 05-25, RM-10593, by any of 
the following methods:
     Federal Communications Commission's Web site: http://

[[Page 451]]

fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting 
comments.
     People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: [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: Michele Levy Berlove, Competition 
Policy Division, Wireline Competition Bureau, at (202) 418-1477 or by 
email at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking in PS Docket No. 14-174, GN Docket No. 13-5, RM-
11358, WC Docket No. 05-25, RM-10593; FCC 14-185, adopted on November 
21, 2014 and released on November 25, 2014. The full text of this 
document is available for public inspection during regular business 
hours in the FCC Reference Information Center, Portals II, 445 12th 
Street SW., Room CY-A257, Washington, DC 20554. The document may also 
be purchased from the Commission's duplicating contractor, Best Copy 
and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 
20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-
2898, or via the Internet at http://www.bcpiweb.com. It is available on 
the Commission's Web site at http://www.fcc.gov/.

Synopsis

    1. In the Notice of Proposed Rulemaking (NPRM), we seek to ensure 
preservation of the fundamental values of competition, consumer 
protection, public safety, and national security during the transition 
of legacy networks and services to networks and services based on new 
technologies. We advance these goals by proposing and seeking comment 
on revisions to our rules and policies concerning continuity of power, 
copper retirement, and service discontinuances governed by Section 214 
of the Communications Act of 1934, as amended (the Act).

I. Introduction

    2. The Commission has recognized that our communications 
infrastructure is undergoing key technology transitions, for example: 
(1) The transition of switched voiced services from legacy TDM and 
Signaling System No. 7 (SS7) networks to Session Initiation Protocol 
(SIP)/IP networks; (2) the transition of TDM-based switched voice 
services to interconnected VoIP services that rely on SIP/IP networks, 
and relatedly the advent of Voice over LTE (VoLTE) services that will 
soon be widely available on LTE wireless networks, and (3) the change 
in the physical layer of last-mile technology, in particular from 
twisted pairs of copper wire to fiber optics cable, co-axial cable, and 
wireless technologies. The network investment that is leading to these 
technology transitions has many benefits. Modernizing communications 
networks can dramatically reduce network costs and lead to the 
development of new and innovative services, devices, and applications, 
and can also result in improvements to existing product offerings and 
lower prices. To date, these new technologies generally have enabled 
the creation of additional choices for customers of voice, video, and 
broadband services. In many cases, retail customers may return to a 
legacy, copper-based service if the new services fail to meet their 
needs or expectations. However, as the Commission unanimously 
recognized in the January Technology Transitions Order:

    [I]n the natural course of progress, we expect there will come a 
tipping point, a point where the adoption of new communications 
technologies reaches a critical mass and most providers wish to 
cease offering legacy services. This is a reflection of 
technological innovation and in that respect is a good thing. But it 
also removes a choice from the marketplace: The choice that has been 
the source of the enduring values for generations and the service 
that Congress beyond question marked as essential to all Americans. 
From this perspective, we stand today at the precipice of a very 
different technology transition--the turning off of the legacy suite 
of services that has served our nation well.

The Commission in January went on to affirm that our ``mission and 
statutory responsibility are to ensure that the core statutory values 
endure as we embrace modernized communications networks.''
    3. Many consumers have embraced new technologies. However, we 
recognize that many consumers continue to rely on the features and 
functionalities of the legacy wireline networks, and the Commission 
must ensure that it can carry out its statutory mission as networks 
reach the ``tipping point'' in the transition away from legacy 
facilities and services. Currently, consumers may expect certain 
familiar data-based services, such as credit card readers, home alarms, 
and medical alert monitors to function in a particular way. Consumers 
of wireline telephony may also expect their plug-in phones to work 
during a power outage without any action on their part. However, 
networks other than copper and services not based on TDM may not 
support these functionalities, or not in the ways that consumers have 
come to expect. Moreover, competitive LECs have come to rely on the 
incumbent LEC legacy facilities to provide broadband services to small- 
and medium-sized businesses and other enterprise customers. And some 
parties argue that certain copper retirements and transitions from TDM 
preclude their access to affordable last-mile facilities and ability to 
serve these retail customers. As new facilities and services are 
introduced and adopted, the tipping point draws closer. The time to act 
is now to prevent harm to consumers, competition, public safety, and 
national security that cannot be undone.

II. Background

A. CPE Backup Power

    4. Consumers receiving voice telephone service over legacy copper 
networks have traditionally relied on power provided from the central 
office to sustain service during power outages. (Loops provided over 
Digital Loop Carrier (DLC) are an exception. For DLC loops, backup 
power (if provided) is provided by the DLC remote terminal. Remote 
terminals, however, are less likely to provide backup power than 
central offices.) Moreover, even in a prolonged outage lasting days or 
weeks, central offices typically have backup power capabilities that 
can ensure continuous voice service over copper to residences for the 
duration of the outage. Hence, consumers have been able to count on the 
continued availability of telephone service in harsh weather conditions 
and other emergencies when they are most vulnerable.
    5. The availability of CPE backup power at the residence is 
therefore an important issue for consumers that may be faced with 
retirement of the copper networks in their communities. Carriers 
planning to retire their copper networks can potentially use a variety 
of physical media on which to transmit their services, including fiber, 
coaxial cable, or wireless. None of these network alternatives, 
however, will typically function in a power outage without a backup 
power source for customer CPE. As consumers transition from legacy 
copper loops to new technologies, it is important they continue to have 
reasonable CPE backup power alternatives to support minimally essential 
residential communications,

[[Page 452]]

particularly access to emergency communications, during power outages.
    6. CPE backup power is not solely a copper retirement issue, 
however. Millions of consumers in communities where legacy copper 
networks continue to operate already rely on other networks that do not 
provision line power to the customer premises. For these consumers as 
well, CPE backup power is a significant issue that must be addressed to 
ensure continuity of communications. We therefore examine ways to 
promote access to CPE backup power for residential voice services 
across different technologies by proposing a framework that would 
establish reasonable expectations for when providers should bear 
responsibility for the provision of CPE backup power during a power 
outage.

B. Copper Retirement

    7. Considering the technology transitions currently underway, we 
find that the time is right to review our current regulations governing 
copper retirement. We do not believe that our copper retirement process 
sufficiently protects our core values given the increase in frequency 
and volume of copper retirements and the concurrently growing impact on 
consumers and competition. This document thus proposes revising our 
copper retirement process to better protect consumers and ensure that 
transitions to fiber do not undermine competition while at the same 
time maintaining the incentives for incumbent LECs to deploy fiber.
    8. We recognize the many benefits of fiber-based service and the 
desirability for incumbent LECs of not having to operate both copper 
and fiber networks indefinitely, including the potential for more 
bandwidth and increased reliability in difficult weather conditions. We 
emphasize that we support and encourage fiber deployments, and are 
committed to maintaining the incentives for providers to deploy fiber. 
The National Broadband Plan recognized that requiring incumbent LECs to 
maintain two networks--one copper and one fiber--``would be costly, 
possibly inefficient and reduce the incentive for incumbents to deploy 
fiber facilities.'' The Commission's task is to protect consumers and 
promote competition while taking account of the need of incumbent LECs 
to manage their networks effectively and efficiently.
    9. Current Regulations. Our current regulations governing copper 
retirement by incumbent LECs were issued a decade ago, when fiber loop 
deployment was still in its infancy and large-scale retirement of 
copper networks was far in the future. Currently, incumbent LECs that 
intend to retire loops or subloops that are being replaced with FTTH or 
Fiber-to-the-Curb (FTTC) loops must provide notice via our network 
change disclosure process. Interconnecting carriers can seek to delay 
but cannot prevent retirement, nor do our rules contemplate that we 
approve or deny planned copper retirements for which incumbent LECs 
provide notice under part 51. (In the Triennial Review Order, the 
Commission declined to impose any ``affirmative regulatory approval'' 
prior to the retirement of copper loop facilities.) This reflects the 
Commission's decision a decade ago to decline to require affirmative 
regulatory approval before an incumbent LEC can retire any copper loop 
facilities and its finding that ``such a requirement is not necessary 
at this time because our existing rules, with minor modifications, 
serve as adequate safeguards.'' Our existing rules do not impose 
specific consumer notice or consumer education requirements on carriers 
retiring copper facilities.
    10. Increasing Scope and Frequency of Retirements. Incumbent LECs 
are steadily transitioning wire centers from copper facilities to fiber 
and all-IP networks. Indeed, the Commission has posted over 20 Public 
Notices for incumbent LEC proposed copper retirements since January 
2014, and we expect the notice of copper retirements to increase in 
volume and geographic scope.
    11. Consumer Protection Concerns. Our record reflects concern that 
incumbent LEC decisions related to copper retirement can have a 
significant impact on consumers, yet our Part 51 rules are silent on 
this important issue. For instance, Public Knowledge and other consumer 
advocacy groups summarized and submitted multiple filings asking state 
public service commissions to pause copper retirements and to 
investigate service-related issues with existing copper networks. These 
consumer advocates allege that ``customers are being involuntarily 
moved to fiber or IP-based service (or some combination thereof), even 
if those new technologies fail to serve all of the user's needs or will 
be more expensive.'' These groups also allege that in some cases 
incumbent LECs are failing to maintain their copper networks in an 
effort to push consumers off of copper and onto fiber or other 
technologies. Further, they claim that some incumbent LECs are 
misleading subscribers into believing that they may no longer continue 
to receive legacy service (e.g., legacy voice-only service, known as 
POTS) or, at a minimum, that those carriers are failing to advise 
subscribers that their legacy service remains available over new 
network facilities. Incumbent LECs dispute these allegations. For 
example, with respect to the claim consumers are forced off of legacy 
services during copper retirements, Verizon asserts that where it 
retires copper facilities, customers migrated to fiber ``receive the 
same POTS service at the same price, unless they choose to upgrade.'' 
Consumer advocates also assert that an important step in protecting 
consumers is to ensure that they have a voice in the retirement 
process.
    12. Competitive Concerns. We are committed to preserving the core 
statutory value of competition during the technology transitions that 
are underway. Competitive LECs have expressed concern over copper 
retirements, alleging, among other things, that incumbent LECs are 
retiring copper--and thereby wasting a valuable resource--merely to 
preclude potential broadband competitors from providing service. 
Competitive carriers use copper facilities to provide alternative 
broadband services to small- and medium-sized businesses. As reflected 
in the various filings with the Commission, competitive LECs claim that 
the increased pace of copper retirement will lead to reduced 
availability of Ethernet-over-Copper services to small and medium 
businesses. Because of their concerns, certain competitive LECs have 
requested that the Commission permit incumbent LECs to retire or 
otherwise remove copper only in a narrow range of circumstances. 
Competitive LECs also recommended revisions to our copper retirement 
process. Specifically, in 2007, BridgeCom et al. and XO et al. filed 
petitions for rulemaking to modify the Commission's copper retirement 
regulations. In its petition, BridgeCom recommends applying copper 
retirement rules to the feeder portion of the copper loop and subloops. 
XO recommends stronger notice requirements, such as requiring incumbent 
LECs to publish notice of a proposed copper retirement at least 12 
months before implementation. These competitive LECs also request that 
the Commission allow states to adopt copper loop requirements stronger 
than the Commission's rules.
    13. In response, incumbent LECs argue there is no evidence that 
copper retirement has hurt competition for broadband. They also state 
that forcing incumbent LECs to maintain redundant copper facilities 
prevents them from efficiently upgrading their networks, and 
discourages incumbent LEC and

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competitive LEC network investments in fiber. They claim consumers will 
ultimately be harmed by diminished investment in broadband technologies 
if incumbent LECs are forced to retain copper facilities.
    14. Benefits of Copper. Construction of fiber and transitions to 
next-generation networks carry clear benefits, but this does not mean 
that copper networks are without value. In particular, the Commission 
recognizes the importance of copper facilities as a means for 
competitors to provide advanced telecommunications capability to 
businesses, schools, libraries, hospitals, other enterprise customers, 
and consumers with disabilities. Competitive LECs provide voice and 
broadband service to enterprise customers by leasing copper loops and 
connecting those loops to their own Digital Subscriber Line (DSL) or 
EoC equipment that is generally collocated in the incumbent LEC's 
central office. Competitive LECs can provide broadband with EoC at 
speeds from 3 to 30 Mbps, and in some areas can reach 200 Mbps. 
Companies are testing technologies over copper that will provide speeds 
of 10 Gbps. Further, the use of competitive carriers' own equipment 
over leased copper enables these carriers to design their own set of 
integrated broadband, voice, and even video services. Another important 
feature of copper is that it carries an independent source of power 
that preserves service during emergencies when the electric power grid 
fails. Finally, copper is already deployed and financed by ratepayers 
and subsidies.

C. Section 214 Discontinuance

    15. Pursuant to our Section 214(a) discontinuance process, 
telecommunications carriers--other than CMRS providers--and 
interconnected Voice over Internet Protocol (VoIP) providers must 
obtain Commission authority to discontinue interstate or foreign 
service to a community or part of a community. (For convenience, in 
certain circumstances, this document uses ``discontinue'' (or 
``discontinued,'' etc.) as a shorthand that encompasses the statutory 
terms ``discontinue, reduce, or impair'' unless the context indicates 
otherwise.) The discontinuance rules are designed to ensure that 
customers are fully informed of any proposed change that will reduce or 
end service, to ensure appropriate oversight by the Commission of such 
changes, and to provide an orderly transition of service, as 
appropriate. This process allows the Commission to minimize harm to 
customers and to satisfy its obligation under the Act to protect the 
public interest. (The Commission normally will authorize proposed 
discontinuances of service unless it is shown that customers or other 
end users would be unable to receive service or a reasonable substitute 
from another carrier, or that the public convenience and necessity 
would be otherwise adversely affected. Where there is question as to 
whether a service has reasonable substitutes or whether the present or 
future public convenience and necessity will be adversely affected, the 
Commission will scrutinize the discontinuance application, consistent 
with its statutory obligations.) The Commission has discretion in 
determining whether to grant a provider authority to discontinue, 
reduce, or impair service pursuant to Section 214. To be clear, the 
fact that a carrier is statutorily obligated to seek discontinuance 
approval does not mean the carrier will be prevented from discontinuing 
the service. Rather, it means that the request must go through a public 
review process to ensure that the public interest--encompassing 
consumer protection, competition, public safety, and other statutory 
responsibilities--is protected.
    16. In this document, we focus on three key issues in the context 
of service discontinuances: (1) Ensuring that consumers receive 
adequate substitutes for discontinued services; (2) further defining 
the scope of our Section 214(a) authority, focusing in particular on 
the context of wholesale services; and (3) ensuring competitive 
availability of wholesale inputs following discontinuance of incumbent 
LECs' TDM services on which competitive LECs currently rely.
    17. Adequacy of Substitutes for Retail Services. In evaluating a 
Section 214 discontinuance application, the Commission generally 
considers a number of factors, including the existence, availability, 
and adequacy of alternatives. Through these factors, the Commission 
ensures that the removal of a choice from the marketplace occurs in a 
manner that respects consumer expectations and needs. In an era of 
ubiquitous legacy services, identifying an adequate like-for-like 
substitute was comparatively easy. Today, that is not the case. 
Building on this theme, Public Knowledge states that ``[b]efore 
policymakers can state with confidence that any new technology is 
comparable to or better than existing network technology, [they] must 
know the metrics by which to compare the two. The Commission should 
therefore establish the metrics by which it will evaluate new 
technologies, when, for example, a carrier files an application to 
change or retire its network under Sec.  214(a).''
    18. Network Security and Reliability. Improved network security 
reduces risk to all interconnected service providers, their customers, 
and the nation as a whole. Careful attention to network security 
becomes particularly important when networks are in transition, and it 
is relevant to whether proposed or available alternative services 
provide the same reliability and resiliency that consumers have come to 
expect from their home voice service.
    19. Wholesale Access to Last-Mile Services. In the Technology 
Transitions Order, the Commission noted the importance of maintaining 
wholesale access to protect the enduring value of competition embodied 
in our communications laws during and after the technology transitions. 
One of the primary goals of this document is to begin the process of 
ensuring that there is competition in serving every level of the 
enterprise market, from very small businesses to large enterprises. As 
explained in the National Broadband Plan, ``[b]ecause of the economies 
of scale, scope, and density that characterize telecommunications 
networks . . . it is not economically or practically feasible for 
competitors to build facilities in all geographic areas.'' This is 
especially true in those cases where the potential return on investment 
from serving the needs of lower demand users, such as residences and 
small businesses, does not justify the cost of overbuilding an 
incumbent. Faced with these economic realities, competitive LECs 
continue to rely significantly on wholesale access to the last-mile 
facilities of incumbent LECs, and have expressed concern about the 
future of wholesale access to last-mile facilities and services as we 
undergo the technology transitions. (Some competitive LECs point out 
that the Commission based its decisions to grant forbearance from 
dominant carrier regulation on the availability of regulated ``TDM-
based, DS1 and DS3 special access services . . . in addition to section 
251 UNEs.'') Even incumbent LECs wanting to serve customers with 
operations outside of their service territory--as would happen with a 
retail business with multiple locations--depend on wholesale inputs and 
for that purpose have their own competitive LEC subsidiaries.
    20. COMPTEL has proposed a framework to guide the IP transition 
because ``failure to adopt and enforce technology-neutral wholesale 
policies threatens the ability of competitive carriers to obtain last-
mile access . . . and thus jeopardizes competition in the

[[Page 454]]

business broadband market.'' As Chairman Wheeler noted recently, 
competitive providers ``deliver important competitive alternatives to 
business and enterprise customers. This in turn helps those enterprises 
provide better, more affordable goods and services to members of the 
general public.'' For example, competitive LECs can provide broadband 
with EoC to small- and medium-sized businesses at speeds that reach 200 
Mbps. Moreover, in its 2009 petition, Cbeyond sought expedited 
rulemaking concerning access by competitive providers to incumbent LEC 
fiber loops. Cbeyond claimed that with access to high capacity fiber 
and hybrid loops, competitors can ``aggressively market the next-
generation applications that are the key to small businesses.'' 
Competitive LECs continue to serve an important part of the Nation's 
enterprise market, and ``as competitive LECs offer competitive service, 
it creates an incentive for incumbents to invest more in their networks 
and offer better services to win their share of business customers.''
    21. In the Triennial Review Order, the Commission emphasized the 
importance of incentivizing investment for the deployment of new 
technologies. In doing so, the Commission limited unbundling 
requirements imposed on incumbent LECs' mass-market fiber loop 
deployments to remove disincentives to the deployment of advanced 
telecommunications. This decision did not, however, eliminate the 
requirement to provide special access services that serve as critical 
inputs to competition--nor did it eliminate the requirement to unbundle 
DS1 and DS3 capacity loops. Today, with significant fiber deployment 
and the current technological transition already underway, we must 
ensure the customers of both incumbent and competitive LECs who 
currently depend on legacy services continue to have appropriate access 
to either adequate legacy or IP-based service alternatives. The 
Commission's discretion to grant a provider authority under Section 214 
to discontinue special access service provides a mechanism to address 
these concerns. In applying Section 214, the Commission must fully 
understand the impact on competition and innovation of either granting 
or denying the application.

III. Discussion

A. Continuity of Power for CPE

    22. Retirement of copper networks highlights a broader challenge 
facing consumers of any service that depends upon access to a 
residential power supply. The ability to communicate during power 
outages remains critical, particularly during prolonged outages caused 
by catastrophic storms or other major disasters. In such situations, 
consumers have a heightened need to be able to communicate with public 
safety officers, first responders and other response workers in order 
to convey or receive lifesaving information. This need is felt not only 
by consumers being migrated from copper to fiber and other networks, 
but also those who have already made that transition by subscribing to 
facilities-based VoIP services or other IP-based solutions. Moreover, 
not only is backup power for services delivered over fiber or other 
non-copper media typically limited, but individual communications 
providers use different technologies and apply different policies to 
the powering of end user devices, resulting in the potential for 
consumer confusion.
    23. As technology transitions, it is important that lines of 
responsibility for provisioning CPE backup power are clearly delineated 
and understood by providers and consumers alike, so that performance 
can meet expectations and continuity of communications can be ensured. 
Establishing clear expectations for both providers and customers as to 
their responsibilities throughout the course of an outage should 
minimize the potential for lapses in service to occur due to consumer 
confusion or undue reliance on the provider. Accordingly, as part of 
our efforts to promote smooth technology transitions, we consider the 
adoption of baseline requirements for ensuring continuity of power for 
CPE during commercial power outages. In the discussion below, we seek 
comment on a framework for establishing reasonable expectations 
regarding provisioning CPE backup power in the event of an outage.
    24. As a threshold matter, we seek comment on the communications 
services we should include within the scope of any CPE backup power 
requirements we may adopt. We observe that CPE backup power is not an 
issue that needed to be addressed with respect to legacy networks that 
provided line power to consumers, because consumers could rely on the 
availability of continuous power sufficient to operate basic telephone 
CPE indefinitely. However, it is an issue that must be addressed in the 
context of providing CPE backup power for VoIP and potentially other 
residential IP-based services (as well as legacy services delivered 
over fiber), because CPE for these services typically will require a 
backup power source. We therefore propose that any potential 
requirements would apply to facilities-based fixed voice services, such 
as interconnected VoIP, that are not line-powered by the provider. For 
this purpose, how should the Commission define a ``fixed'' wireless 
service? Does it depend upon whether the service is primarily used from 
a fixed location and/or marketed for that purpose? Is taking a 
functional approach to defining ``fixed'' wireless service appropriate, 
and if so how would that apply to services on the market today? How do 
we account for power outages affecting other CPE, such as cordless 
phones, or the network itself?
    25. While consumers generally may use residential communications 
services for a wide range of communications needs, power during an 
outage is a valuable and limited resource. We therefore intend that any 
backup power requirements we propose today afford sufficient power for 
minimally essential communications, including 911 calls and the receipt 
of emergency alerts and warnings. We seek comment on what services 
should be considered ``minimally essential'' for purposes of continuity 
of power. While voice services historically have been the primary means 
of contacting 911, there are circumstances where other modes of 
communication, such as texting, may be more effective or energy-
efficient; additionally, Next Generation 911 will begin to introduce 
images, video and other new data streams into Public Safety Answering 
Points (PSAPs). In addition, we seek comment on the extent to which 
backup power can be prioritized or otherwise conserved for such 
minimally essential communications needs. For example, can service 
providers offer mechanisms for lowering power usage and conserving 
battery power, such as a default turnoff of all communication services 
when the device is operating on battery, so that the device does not 
drain backup power while a consumer is away from home or otherwise not 
using the device? Can CPE be configured to only power on to receive 
emergency alerts? If it is technically difficult to distinguish 
incoming emergency alert calls from other incoming calls, should only 
911 calls be supported? What measures can providers take to rapidly 
load shed non-essential communications functions to extend the duration 
of available backup power to support minimally essential functions? In 
this regard, we seek comment on the extent to which it is reasonable to 
place an obligation on the provider (versus place an expectation on the 
consumer) to take measures to conserve backup power for minimally

[[Page 455]]

essential communications. How should consumer preferences and community 
public safety interests inform our policymaking?
    26. In the discussion that follows, we seek comment on a framework 
to establish expectations for when providers must take steps to 
maintain continuity of power for CPE. (In the event we were to adopt a 
requirement that providers must provision CPE backup power, we expect 
that providers would be entitled to commercially reasonable 
compensation in exchange for providing this service.) In the past, 
consumers have relied upon service providers for backup power for their 
residential landline phones. Is it reasonable for providers to continue 
to bear primary responsibility for CPE backup power, and if so, to what 
extent? We propose that providers should assume responsibility for 
provisioning backup power that is capable of powering their customers' 
CPE during the first eight hours of an outage. (In this context, unless 
otherwise stated, we use the term ``backup power'' to refer to the 
availability of standby backup power, not actual talk time.) Eight 
hours appears to be consistent with certain VoIP deployment models 
already in practice, though some providers have deployed backup power 
devices that are capable of providing power for up to twenty-four 
hours. (We note that CSRIC's report indicates that while backup time 
across different use cases may vary, several current deployments 
support up to eight hours of standby battery backup. Providing 
consumers with eight hours of backup power would accommodate 
circumstances where the power goes out in the middle of the work day or 
in the middle of the night, when consumers may be away from home or 
asleep and therefore would not reasonably be able to take measures on 
their own to ensure continuity of communications. On the other hand, a 
longer time period--such as the twenty-four hours afforded by Verizon's 
devices--could provide consumers with sufficient time to attend to 
other time-sensitive matters that may arise during the course of a 
natural disaster or other emergency. We seek comment on these options.
    27. To the extent we place the responsibility on providers to 
provide CPE backup power, we seek comment regarding solutions that are 
currently available to providers to meet this responsibility. To the 
extent such solutions are available, could they be widely deployed at a 
reasonable cost? If not, what technical hurdles or other issues must be 
addressed? The Communications Security, Reliability and 
Interoperability Council (CSRIC) recently issued recommendations for 
advancing the state of the art in CPE powering. Could power-over-
Ethernet (PoE) be used to power devices that lack a backup power supply 
but are connected to devices that are running on battery power? CSRIC 
notes that PoE ``is an established standard commonly used in hotels and 
other commercial applications,'' and ``could provide an easy to 
implement approach'' in certain circumstances. Could solar power, fuel 
cells, or other alternative energy sources be used to maintain a 
continuous CPE power supply that operates independently of the 
commercial power grid?
    28. We also seek comment on how the provider would meet its 
responsibility to provide backup power for a specific duration of time. 
Would it be sufficient for the provider to initially install backup 
power technology at the customer's residence, while leaving the 
consumer responsible for any associated maintenance of the power 
supply? How are providers currently supporting CPE backup power today 
across different services and technology platforms? How long does the 
backup power currently offered by providers last, and for what 
services? In what form is the backup power provided? Should the 
provider have any responsibility to monitor battery status and 
determine whether the battery has degraded and if so, how could this 
responsibility be carried out? Should that responsibility change if the 
consumer self-installs the CPE, versus having the provider 
professionally install the CPE? Should consumers be able to opt out of 
backup power? Could providers install CPE backup power sources that are 
located external to the customer's residence and thus able to be 
monitored and maintained remotely? Are there other methods that could 
be used to ensure the availability of CPE backup power immediately 
after a power outage? Our proposals are stated in terms of standby 
time, but is talk time the appropriate metric?
    29. We next seek comment on the extent to which consumers could 
self-provision CPE backup power. Under our proposal, after the first 
eight hours of an outage, the burden to maintain continuity of power 
for CPE no longer would be on the provider under our rules, but would 
be allowed to would fall on the consumer. (Where we refer to the 
``burden'' or the like falling or shifting to the consumer, we mean the 
practical need to provide for backup power and do not propose imposing 
any legal duty or obligation on consumers.) We seek comment on whether 
this is a reasonable expectation. Also, to the extent consumers self-
provision CPE backup power, we seek comment on how best to ensure they 
equipped to do so. We believe that expecting consumers to self-
provision CPE backup power after certain amount of time may be 
reasonable to the extent that consumers would have ready access, 
through standard commercial outlets, to replacement batteries or other 
backup power technology. We seek comment on the commercial availability 
of such technologies. We note that CSRIC has recommended that providers 
make affordable options for battery backup of CPE available to 
consumers. For customers who choose battery backup, should service 
providers be required to offer spare batteries, at reasonable cost, to 
replace batteries when battery life falls below the eight-hour 
threshold or otherwise during times of extended power outages? Should 
providers be expected to standardize CPE power supplies and connector 
interfaces across network devices and CPE, so that a common battery 
backup unit can be used in the home with multiple devices? (For 
example, service providers may require their equipment developers to 
provision CPE that uses a power source of a type that consumers can 
easily replace, e.g., D-cell batteries. CSRIC states that 
``[i]mprovements in battery technology are . . . allowing [D-cell 
batteries] to approach the backup times of lead acid batteries on 
single charge discharges.'') Are such efforts already under way? We 
seek comment on the use of D-cell batteries and on the costs and 
benefits of requiring consumers to purchase a sufficient number of D-
cell batteries to provide continuing backup power. Another option may 
be Lithium-Ion external battery packs, which are widely used to provide 
reserve power to mobile phones and tablets, using a standardized so-
called USB micro-B connector on the mobile device. We seek comment on 
the variety of options available, today and in the foreseeable future, 
as well as the technical trade-offs inherent in the different options.
    30. We believe that a comprehensive consumer education plan would 
be critical to consumers' ability to successfully self-provision CPE 
backup power. Are service providers already offering consumers 
necessary information regarding backup power options and on how to 
install and maintain backup power technologies? Are providers offering 
consumers a sufficient explanation of a device's emergency use 
capabilities, battery backup units, and how to access detailed 
information about battery

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backup? We seek comment on whether we should require providers to 
develop and implement consumer education plans regarding the 
availability of CPE backup power. We also seek comment on when 
providers should make such information available. For example, when 
would it be sufficient for service providers to make this information 
available--at the point-of-sale, at the initial set up of CPE, or at 
some other point in the process? Should providers also provide detailed 
CPE backup power information immediately prior to a predicted extreme 
weather event or other anticipated emergency? We seek comment generally 
on additional ways in which providers may facilitate consumers' ability 
to self-provision CPE backup power.
    31. Finally, we seek comment on strategies for maintaining 
continuity of power for CPE during extended periods of commercial power 
failure. Power outages of such extended duration are comparatively 
rare, but they are likely to present additional challenges. During 
prolonged outages, standard commercial supply chains that consumers 
would typically rely on for replacement batteries and other backup 
power technologies may be disrupted. We seek comment on how service 
providers can best assist consumers to obtain access to backup power 
resources during long-term power outages. What experiences have service 
providers had in these situations? We note the increasing popularity 
and proliferation of mobile cell phone charging stations among retail 
businesses. Such charging stations have repeatedly proven their 
usefulness in emergencies where carriers have provided disaster relief 
vehicles for customers of any wireless carrier to place calls, charge a 
variety of phones, and connect to the Internet via Wi-Fi. (We are also 
aware of efforts to provide fixed solar powered charging stations for 
people to charge their cell phones and laptop computers in several 
cities. We note that some of the charging stations used outside of the 
United States work very much like vending machines.) Would such 
solutions be feasible in more rural areas, or in areas with terrain 
that might be less accessible in the event of severe weather? Is it 
feasible to establish similar charging stations for CPE or their 
battery components that support other IP-based services?
    32. We also seek detailed information regarding the costs and 
benefits of the CPE backup power requirements proposed in this 
document. What would be the costs and benefits of industry compliance 
with mandates such as these? (We observe that the proposed rules would 
permit providers to charge commercially reasonable fees for any 
provision of backup power required under the rules.) What are the costs 
of developing affordable backup power solutions for any CPE that 
currently lack them? With respect to backup power provided by 
batteries, we seek cost information for the entire battery lifecycle, 
including the costs of procuring, maintaining, and disposing of the 
batteries. We also seek comment on whether requiring providers to 
supply customers (or groups of customers) with initial backup power 
capability would introduce economies of scale. In addition, we seek 
comment on the costs to the consumer of self-provisioning CPE power 
during outages that exceed the initial window during which the backup 
power obligation is on the provider, and whether these costs are more 
or less than they otherwise would be in the absence of any backup power 
requirements. In assessing the costs and benefits, how should we 
account for consumer usage patterns? Many consumers have already 
transitioned to fiber; what has been their experience, particularly 
with long duration or frequent power outages, and how should that 
inform our policymaking? Likewise, many consumers have mobile devices 
and many of those consumers have only wireless phones. How should that 
factor into our analysis?
    33. In the same vein, how can we minimize the costs of compliance 
while maximizing the benefits? Would it be sufficient if every provider 
of facilities-based non-line-powered fixed voice services were to make 
available at least one piece of CPE that can be powered for at least 8 
hours using commercially available batteries (such as D-cells)? (We 
note that some providers have deployed devices that are capable of 
providing back-up power for twenty-four hours.)
    34. We next seek comment on the Commission's legal authority to 
adopt any of the proposals described above. Congress created the 
Commission, in part, ``for the purpose of promoting safety of life and 
property through the use of wire and radio communications.'' As 
communications technologies increasingly operate on commercial power at 
the customer's premises rather than power from a central office 
delivered over copper lines, the Commission must ensure that technology 
transitions do not diminish access to critical communications services, 
especially 911. Congress has directed the Commission to ``designate 911 
as the universal emergency telephone number within the United States 
for reporting an emergency to appropriate authorities and requesting 
assistance,'' and to ``promote and enhance public safety by 
facilitating the rapid deployment of IP-enabled 911 and E-911 
services.'' The Commission is also charged with promulgating 
``regulations, technical standards, protocols, and procedures as are 
necessary to achieve reliable, interoperable communication that ensures 
access by individuals with disabilities to an Internet protocol-enabled 
emergency network, where achievable and technically feasible.'' We seek 
comment on whether requiring sufficient backup power to maintain 911 
connectivity during power outages would be well within ``[t]he broad 
public safety and 911 authority Congress has granted the FCC.''
    35. Moreover, section 201(b) the Communications Act requires the 
practices of common carriers to be ``just and reasonable,'' and 
authorizes the Commission to ``prescribe rules and regulations as may 
be necessary in the public interest to carry out the provisions'' of 
the Act. Section 214(d) of the Act authorizes the Commission to require 
a common carrier ``to provide itself with adequate facilities for the 
expeditious and efficient performance of its service as a common 
carrier.'' And Section 214(a) empowers the Commission to attach 
conditions to the discontinuance of common carrier services to part or 
all of a community. The Commission also has general licensing authority 
under section 301 of the Act, as well as authority under Section 303(b) 
to ``[p]rescribe the nature of the service to be rendered by each class 
of licensed stations and each station within any class'' would provide 
an additional basis for Commission action. To the extent that our 
proposals apply to telecommunications carriers or fixed wireless 
service providers, we tentatively conclude that these provisions 
provide additional sources of authority for the proposals contained 
herein. We seek comment on this tentative conclusion.
    36. Finally, in light of these statutory mandates, we seek comment 
on whether minimum backup power requirements to promote continuity of 
911 and other communications services would be within Commission's 
general jurisdictional grant under Title I of the Act and ``reasonably 
ancillary to the Commission's effective performance of its statutorily 
mandated responsibilities.'' We also seek comment on any other sources 
of legal authority for the proposals set forth above.
    37. Alternatively, should the Commission take steps, short of 
adopting rules, to promote the

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development and implementation of consumer CPE backup power solutions? 
The CSRIC report observes that, due to the wide variety of backup power 
options and interfaces offered by individual service providers and CPE 
vendors, ``some level of standardization is needed of . . . power 
systems and interfaces, if VoIP services are to meet the reliability 
that consumers expect in the United States.'' Should the Commission 
take steps to promote the standardization of systems and interfaces 
that CSRIC recommends, e.g., in cooperation with industry standards 
bodies such as CableLabs or the Broadband Forum? Should the Commission 
charge CSRIC or another of its advisory bodies with addressing this 
issue? Do the best practices that CSRIC recommends in its recent report 
provide an adequate framework for ensuring that VoIP CPE maintain 
continuity of power in the event of commercial power failure? Should 
the Commission monitor whether the CSRIC best practices or any 
additional measures are being followed, and if so, how should it 
measure the effectiveness of these practices? While CSRIC's 
recommendations specifically pertained to VoIP CPE, to what extent can 
CSRIC's best practices be adapted to apply more broadly? What 
additional measures, beyond CSRIC's recommendations, should providers 
undertake to ensure continuity of service during extended power 
outages?
    38. We also seek comment on whether market-based incentives alone 
could deliver backup power solutions that meet consumer needs and 
expectations. To what extent do providers compete on the basis of their 
ability to provide reliable and continuous service during commercial 
power outages? Do providers have incentives to educate their customers 
on the potential loss of service that occurs during power outages, and 
to help them make informed decisions about the backup power options 
available to them? Is there evidence that backup capabilities for CPE 
have improved and will continue to improve?
    39. Finally, we seek comment on any alternative approaches to 
providing continuity of communications for consumers, in the event of a 
power outage. In particular, we invite proposals that would address our 
concerns without the need to adopt regulatory requirements.

B. Copper Retirement

    40. We believe that the increasing frequency and scope of copper 
retirements call into question key assumptions that underpinned our 
existing copper retirement rules, and therefore changes are necessary 
to ensure that our copper retirement process protects retail customers 
and facilitates competition. In this document, we propose steps to 
maintain the vitality of our core values of consumer protection, 
competition, public safety, and national security through the 
forthcoming technology transitions. In particular, we propose revisions 
to our copper retirement rules that we believe will align the goals of 
consumer protection and competition with ongoing incentives to deploy 
advanced facilities and services. First, we propose defining 
``retirement'' of copper--a term not currently defined in our rules--to 
include removing and disabling of copper loops, subloops, and the 
feeder portion of loops. Next, we seek comment on how to address 
allegations that in some cases incumbent LECs are not adequately 
maintaining their copper facilities that are not yet retired. We then 
explain why we do not intend to establish an approval requirement for 
copper retirement. We also propose and seek comment on improvements to 
our copper retirement process to better promote competition and protect 
consumers. This document then seeks comment on whether and how we 
should take action to promote the sale or auction of copper prior to 
retirement. Finally, it seeks comment on the adoption of best practices 
that can help address the need for reliable backup power.
1. Definition of ``Copper Retirement''
    41. Although the Commission's rules provide that incumbent LECs 
must comply with network change requirements before they retire any 
copper loops or subloops, the rules do not define ``copper 
retirement,'' either with regard to the facilities or the actions 
involved. We believe that it is necessary to propose a definition of 
copper retirement to provide parties with guidance on when a network 
change notification must be filed.
    42. Copper Facilities to Be Included. We propose that copper 
facilities included within the concept of ``retirement'' should include 
copper loops, subloops, and the feeder portion of the loop. Including 
copper loops and subloops is consistent with our existing rules. 
However, our current rules do not encompass the feeder portion of 
loops. In its 2007 Petition for Rulemaking, BridgeCom requested that 
the Commission initiate a rulemaking proceeding to extend the copper 
retirement network change disclosure rules to the feeder portion of 
loops, noting that ``if the feeder portion of the loop is unavailable 
for unbundled access, the practical difficulty of obtaining access to 
the remaining portion of the loop forecloses competitive access to the 
customer.'' We tentatively agree, and we propose including the feeder 
portion of the loop within our definition of copper retirement. We seek 
comment on this proposal. Are there any reasons that we should not 
include copper feeder along with copper loops and subloops? Are there 
any other copper facilities that should be included?
    43. Actions That Constitute Retirement. We seek comment on defining 
``copper retirement'' as the ``removing or disabling of'' copper loops, 
subloops, and the feeder portion of loops. Should ``removing'' 
constitute the physical removal of copper? Should ``disabling'' mean 
rendering the copper inoperable? Should ``disabling'' constitute 
retirement only if it is intended to be long-term or permanent? Should 
``removing'' or ``disabling'' be defined in different ways? Should we 
add additional forms of retirement to this definition, and if so what 
should they be? Should we employ different terminology than that 
proposed here?
    44. ``De Facto'' Retirement and Adequate Maintenance of Facilities. 
As stated above, there are numerous allegations that in some cases 
incumbent LECs are failing to maintain their copper networks that have 
not undergone the Commission's existing copper retirement procedures. 
Public Knowledge et al. express concern that consumers are losing 
access to basic phone service, and that ``[d]enying basic phone service 
to people who have relied on the network for decades violates the 
network compact that has successfully guided our communications policy 
for one hundred years.'' First, to establish whether there is a factual 
basis for new rules in this area, are incumbent LECs in some 
circumstances neglecting copper to the point where it is no longer 
reliably usable? We seek specific examples and facts concerning the 
consequences to consumers, competition, and public safety. Next, we 
seek comment on whether and how we should revise our rules to address 
inadequate maintenance. If we find that new rules are necessary, one 
option would be to define retirement to include de facto retirement, 
i.e., failure to maintain copper that is the functional equivalent of 
removal or disabling. We seek comment on this approach. In particular, 
how would the Commission determine if an incumbent LEC's treatment of 
its copper facilities fits the definition? For example, should the

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Commission consider service complaints? What would be the advantages 
and disadvantages of this approach to both consumers and competition? 
We seek comment on potential consequences or enforcement if copper 
facilities are allowed to degrade in quality to the point of de facto 
retirement without notice to customers? Is there an objective standard, 
such as industry standards, by which we can determine if copper is de 
facto retired? Are there any other legal or regulatory considerations 
with creating a de facto retirement standard?
    45. Historically, the States, localities, and Tribal Nations have 
played a vital role in overseeing carriers' service quality and network 
maintenance. Public Knowledge et al., however, suggest that some non-
federal governmental entities may be less able to provide such 
oversight because some state legislatures ``have removed state-level 
authorities' ability to ensure customers continue to have meaningful 
access to the basic communications service they have always relied on 
at affordable prices.'' We seek comment on the extent to which the 
States, localities, and Tribal Nations are able to address the consumer 
protection concerns raised by some incumbent LECs' alleged failure to 
maintain copper facilities, and how that ability has changed over time. 
How should the trends in the regulatory capabilities of States, 
localities, and Tribal Nations inform our actions in this proceeding? 
We emphasize that in this document, we do not seek to revisit or alter 
the Commission's determination in the Triennial Review Order to 
preserve state authority with respect to requirements for copper 
retirement.
2. Revision of Copper Retirement Processes To Promote Competition and 
Protect Consumers
    46. We tentatively conclude that the foreseeable and increasing 
impact that copper retirement is having on competition and consumers 
warrants revisions to our network change disclosure rules to allow for 
greater transparency, opportunities for participation, and consumer 
protection. We discuss specific proposals and questions in this regard 
below. In connection with our proposed revisions to the copper 
retirement process, we propose streamlining our rules by creating a new 
Sec.  51.332 in which we will consolidate network change notification 
requirements specific to copper retirement. We seek comment on this 
proposal.
    47. Because we expect that an approval requirement would 
undesirably harm incentives for fiber deployment and because we do not 
wish to impose a technological mandate, we decline requests to revise 
our network change notification rules to require incumbent LECs to 
obtain our approval for copper retirement, as some have suggested. In 
other words, we believe that copper retirement should remain a notice-
based process. We note in this regard that we anticipate that our 
separate proposal to ensure continued access to wholesale services 
following TDM discontinuances would address many of the concerns that 
have led certain competitive LECs to advocate an approval requirement.
a. Competition: Expansion of Notice Requirements
    48. As incumbent LECs continue with their technology transitions, 
competitive providers have become concerned that the incumbent LECs are 
retiring copper networks in a manner that will harm their ability to 
compete. To ensure that competitive LECs are fully informed about the 
impact that copper retirements will have on their businesses, we 
propose revising our rules to require incumbent LECs to provide 
interconnecting competitors with additional information about the 
potential impacts of proposed copper retirements. Specifically, we 
propose requiring that incumbent LECs provide a description of the 
expected impact of the planned changes, including but not limited to 
any changes in prices, terms, or conditions that will accompany the 
planned changes. (We emphasize that we do not seek through this 
proposal to provide an exemption from the statutory requirement 
pursuant to Section 214(a) to obtain authorization to discontinue, 
reduce, or impair service to a community or part of a community.) We 
further propose clarifying that incumbent LECs must provide direct 
notification of planned copper retirements to each telephone exchange 
service provider that interconnects with the incumbent LEC's network 
and must file a certificate of service to the Commission confirming the 
provision of such notice regardless of the timing of the retirement. 
(The short term notice provisions of our network change notification 
rules, which apply ``[i]f an incumbent LEC wishes to provide less than 
six months notice of planned network changes,'' require the incumbent 
LEC to file a certification with the Commission stating that ``at least 
five business days in advance of its filing with the Commission, the 
incumbent LEC served a copy of its public notice upon each telephone 
exchange service provider that directly interconnects with the 
incumbent LEC's network.'' Our network change notification rules state 
that ``[i]ncumbent LEC notice of intent to [retire copper] shall be 
subject to the short term notice provisions of this section . . . .'' 
we have not addressed the question of whether under our current rules 
an incumbent LEC must comply with the short term notice provisions for 
a copper retirement if it wishes to provide six months or more of 
advanced notice.) We seek comment on these proposals. Commenters may 
wish to address questions such as:
     Will the additional information be useful to competitive 
providers?
     Is there any reason why incumbent LECs should not be 
required to provide this additional information?
     Would providing this additional information impose an 
unreasonable burden on incumbent LECs?
     Is there any additional information that interconnecting 
telephone exchange service providers might need in order to make an 
informed decision?
     Would a narrower scope of information achieve the same 
goals as our proposal?
     How should the notification requirement apply in the event 
of a natural or manmade disaster?
     Should we require provision of this notification to 
information service providers that directly interconnect with the 
incumbent LEC's network and/or to any other entities?
     Should we take action to encourage incumbent LECs to meet 
with or more collaboratively communicate with entities to which they 
provide notice, and if so how?
     Would it be helpful for incumbent LECs to provide annual 
forecasts of expected copper retirements or other network changes; if 
so, to whom should they provide such forecasts?
     Should we act to ensure that the direct notifications 
proposed above--and/or network change notifications generally--are 
provided in a uniform format, and if so how can we best achieve that 
goal?
    49. Competitive providers require adequate notice in order to plan 
for the elimination of copper-based facilities. Section 251(c)(5) 
requires ``reasonable public notice of changes in the information 
necessary for the transmission and routing of services using that local 
exchange carrier's facilities or networks, as well as of any other 
changes that would affect the interoperability of those facilities and 
networks.'' To what extent does our section 251(c)(5) authority support 
our proposals? Are the proposals above reasonable? To find that we have 
the necessary legal authority under section

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251(c)(5), is it necessary to conclude that the information that is 
subject to our proposal is either ``necessary for the transmission and 
routing of services using that local exchange carrier's facilities or 
networks'' or that it would ``affect the interoperability of those 
facilities and networks'' and, if so, is one of those standards met? 
Are there other sources of legal authority that would support the 
proposals described above?
    50. Under our current rules, incumbent LECs must give at least 
ninety days' advance notice of planned copper retirements. We seek 
comment on whether this amount of time is sufficient or whether it 
should be extended. If we do extend the time period, what is 
appropriate? Is 180 days appropriate? We note that the time period 
should provide sufficient notice for competitive LECs and for retail 
customers. We seek comment on whether a lengthier notice period would 
place too high a burden on incumbent LECs and/or whether the time 
period should be shortened.
b. Consumer Protection
    51. Consumers and other retail customers need to understand what is 
and is not happening during a copper retirement, and they need to 
understand their choices about service. Since our current Part 51 rules 
make no provision at all for retail customers, we fear that this is not 
currently the case. As stated above, complaints have surfaced from 
multiple sources that in some cases incumbent LECs are moving customers 
of legacy services onto IP-based and triple play services during copper 
retirements, with no procedures in place for customer notice or choice. 
(Verizon has denied these allegations.) These allegations strengthen 
our belief that notice obligations should be extended to retail 
customers. Because copper retirement has the potential to reduce a 
retail customer's choice, we believe that it is appropriate to extend 
the notice obligations of our network change disclosure rules to retail 
customers. We also believe that it is important to give retail 
customers a voice in the copper retirement process. The Bureau already 
has created an email address for public comment on copper retirement, 
and this document seeks to expand retail customers' opportunities to 
participate in this important process. We also anticipate that notice 
to retail customers must differ from notice to providers. We therefore 
propose revising our network change disclosure rules to address the 
form, timing, and content of notice to retail customers, as well as to 
educate subscribers regarding copper retirements by which they may be 
affected, as detailed below. We seek comment on our legal authority to 
impose the requirements contemplated below.
(i) Notice to Retail Customers
    52. Recipients. Retail customers who are directly impacted by 
copper retirement need to know about it, and it simply is not realistic 
to expect consumers and other retail customers to monitor individual 
pages on the Web sites of carriers or the Commission. (We do not limit 
this proposal to residential consumers. Rather, references to ``retail 
customers'' and ``subscribers'' include non-residential users such as 
business and anchor institutions.) We therefore propose requiring 
incumbent LECs to provide notice of copper retirements to their retail 
customers who will be affected by the copper retirement. Under the 
proposed rule, an incumbent LEC would be required to directly notify 
all retail customers affected by the planned network change through 
electronic or postal mail unless the Commission authorizes in advance, 
for good cause shown, another form of notice. We seek comment on this 
proposal. Does it strike the correct balance between the benefits to 
retail customers of notification and the costs of providing the 
notification? We also seek comment on the ways in which a retail 
customer might be ``affected'' by a planned copper retirement. We 
propose that affected customers who must receive notice are anyone who 
will need new or modified CPE or who will be negatively impacted by the 
planned network change. We seek comment on this proposal. Does this 
proposal capture the correct population? In what circumstances other 
than needing new or modified CPE is a customer negatively impacted by a 
planned copper retirement? How significant of a negative impact is 
necessary to trigger a notice requirement, and from whose perspective 
should the impact be evaluated? Should we adopt different or more 
limited criteria? Should our proposed notice requirement apply only to 
instances in which a technician would need to obtain access to the 
customer's premises? Should we deem any customer that will see a change 
in the electrical power arrangements for his or her service to be 
``affected''? Are there other circumstances or situations in which a 
retail customer could be affected by a planned copper retirement in a 
way that would warrant requiring direct notification of the planned 
changes? Are there any reasons why retail customers should not be 
entitled to notice of copper retirements by which they are affected?
    53. We note that in some cases, it is possible that copper 
retirements might have little or no practical impact on retail 
customers. For example, a copper retirement may not result in the need 
to replace or install CPE on a retail customer's premises, eliminate 
line power, or affect the functionality of or access to third-party 
devices or services. In such circumstances, retail subscribers may find 
notice to be unnecessary or confusing. However, retail customers are 
affected by certain planned network changes involving copper 
retirement, particularly those that require a technician to seek entry 
to a retail customer's premises home. In those circumstances, we 
believe that an incumbent LEC's retail customers should be part of the 
network change disclosure process, and in particular we propose that 
incumbent LECs should be required to provide such customers notice of 
an impending copper retirement. We seek comment on these issues.
    54. Form. The form of notice should be both efficient for incumbent 
LECs to undertake and effective in educating retail customers about 
retirements. We propose allowing incumbent LECs to use written or 
electronic notice such as postal mail or email to provide notice to 
retail customers of a planned copper retirement. We seek comment on 
whether such types of notice adequately protect the interests of retail 
customers. For instance, in a 2002 order addressing notice procedures 
for solicitation of opt-in or opt-out approval regarding use of 
customer proprietary network information (CPNI), the Commission stated:

    [W]e recognize that consumers are deluged with unrequested or 
unwanted commercial email (``spam'') and could easily overlook a 
notice provided via email. Accordingly, we require carriers to 
follow certain precautions to ensure that such notices will not be 
mistaken as spam.

    We seek comment on whether the notice procedures used in the CPNI 
context are appropriate for adaptation to the copper retirement 
context. What types of precautions should we require to ensure that 
retail customers have the information necessary to make informed 
decisions regarding their choices for telephone service? How can we 
ensure that notice to customers with disabilities is provided in 
accessible formats? With respect to notification via email, we seek 
comment on requiring that carriers establish a method by which retail 
customers may choose the option to receive communications via email and 
provide the email address to

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which the incumbent LEC should send such communications. Would the fact 
that a customer has already agreed to receive monthly bills or other 
communications by email demonstrate that the customer can be expected 
to receive adequate notice of network changes by email? Should we 
require carriers to obtain express, verifiable, prior approval from 
retail customers before sending notices by email? We also propose 
requiring that carriers send direct written notification in instances 
when an email notice of a planned copper retirement is returned to the 
carrier as undeliverable. Would such procedures be adequate to ensure 
that subscribers receive notifications of planned copper retirements 
from incumbent LECs in a timely manner? Should we also permit oral 
notice or electronic notice other than by email, such as by telephone 
call or publication on an incumbent LEC's Web site? Would oral 
notification present opportunity for abuse or confusion? Should notice 
requirements differ depending upon the size of the carrier or other 
factors?
    55. To ensure that sufficient information remains available to 
enable us to enforce our proposed rules, we propose requiring that 
incumbent LECs maintain records of customer notifications, in whatever 
form provided, for a minimum period of time. We seek comment on this 
proposal. If we impose such a requirement, what minimum retention 
period should we prescribe? In what circumstances, if any, would the 
burden imposed on incumbent LECs outweigh the Commission's need to have 
available to it records to evaluate a provider's compliance with our 
rules? What specific records should we require incumbent LECs to 
maintain, and in what format?
    56. Content. We believe that retail customers are entitled to 
clarity regarding the services available to them. We therefore propose 
creating a requirement that the notices to subscribers affected by 
copper retirements state clearly and prominently that a retail customer 
``will still be able to purchase the existing service(s) to which he or 
she subscribes with the same functionalities and features as the 
service he or she currently purchases'' if that statement is accurate; 
if this statement would be inaccurate, then we propose requiring the 
incumbent LEC to include a statement identifying any changes to the 
service(s) and the functionality and features thereof. We seek comment 
on this proposal. If the incumbent LEC cannot state accurately that the 
service(s) available to consumers will be unchanged, we would expect it 
to consider carefully whether it is required to file a discontinuance 
application pursuant to Section 63.71 of our rules. In that regard, we 
also seek comment on the allegations that in some cases, incumbent LECs 
are misleading retail customers into believing that they may no longer 
continue to receive legacy services (e.g., POTS) or, at a minimum, that 
incumbent LECs are failing to advise retail customers that their legacy 
service remains available over fiber.
    57. Further, to be effective, the notice must provide retail 
customers with the information that they need to understand the 
practical consequences of copper retirement. To ensure that the notice 
is sufficient to serve its intended purpose, we propose minimum 
requirements for the content of notices to subscribers. (As we noted in 
the 1998 CPNI Order, ``[p]rescribing minimum content requirements will 
reduce the potential for customer confusion and misunderstanding as 
well as the potential for carrier abuses.'') Specifically, we propose 
certain requirements similar to those required by Sec.  64.2008 of our 
rules for use of CPNI and by Sec.  63.71 of our rules for notice to 
affected customers of planned service discontinuances. Further, we 
propose requiring that the notice provide sufficient information and 
that it contain a clear statement of the customer's rights and the 
process by which the customer may comment on the planned copper 
retirement. We seek comment on these proposals.
    58. We further seek comment on whether these proposed minimum 
customer notice requirements are adequate to protect consumer 
interests. Should there be additional requirements? Are any different 
or additional notice requirements necessary for certain populations, 
such as those who are not proficient in English or consumers with 
disabilities? Do these requirements place too onerous a burden on 
incumbent LECs? We also seek comment on whether the incumbent LEC 
should be required to make additional efforts to contact retail 
customers who do not contact the incumbent LEC to schedule a service 
call in instances when an incumbent LEC technician must visit the 
customers' premises to complete work to effectuate the copper 
retirement.
    59. Timing. Retail customers will need an opportunity to educate 
themselves regarding the implications of the planned copper retirement. 
We propose requiring that incumbent LECs give subscribers the same 
amount of notice that they give to interconnected providers, which we 
believe provides sufficient time for subscribers to become educated 
about the proposal. We seek comment on this proposal and, in the 
alternative, on what the appropriate notice period should be. We also 
propose allowing retail customers 30 days in which to comment on a 
proposed copper retirement from the date the Bureau releases its Public 
Notice. This matches the amount of time that interconnecting carriers 
have to comment, and we believe it strikes the correct balance between 
providing retail customers with sufficient time to comment and ensuring 
certainty in our retirement process. We seek comment on this proposal.
    60. Statutory Authority. To what extent does our section 251(c)(5) 
authority support our proposals? Is there any reason that retail 
customers should not be understood as persons entitled to receipt of 
``public notice''? Are the proposals above ``reasonable''? To find that 
we have the necessary legal authority under section 251(c)(5), is it 
necessary to conclude that the information that is subject to our 
proposal is either ``necessary for the transmission and routing of 
services using that local exchange carrier's facilities or networks'' 
or that it would ``affect the interoperability of those facilities and 
networks,'' and if so is one of those standards met? Are there other 
sources of legal authority that would support the proposals above? In 
addition, we seek comment on whether our proposals advance important 
government interests and on whether any other less restrictive 
approaches would accomplish our consumer protection goals.
    61. Section 68.110(b). Section 68.110(b) of our rules provides 
that:

    A provider of wireline telecommunications may make changes in 
its communications facilities, equipment, operations or procedures, 
where such action is reasonably required in the operation of its 
business and is not inconsistent with the rules and regulations in 
this part. If such changes can be reasonably expected to render any 
customer's terminal equipment incompatible with the communications 
facilities of the provider of wireline telecommunications, or 
require modification or alteration of such terminal equipment, or 
otherwise materially affect its use or performance, the customer 
shall be given adequate notice in writing, to allow the customer an 
opportunity to maintain uninterrupted service.

What can we learn from Sec.  68.110(b) in the context of our present 
customer notice proposal? Has this provision benefitted customers? To 
what extent does this provision authorize or otherwise relate to or 
overlap with our proposed customer notice? Is the

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overlap, if any, beneficial in ensuring customer understanding of the 
impact of various technology transitions, or does it render any portion 
of our proposal superfluous? Should Sec.  68.110(b) serve as a model 
for customer notice requirements in the copper retirement context, and 
if so how?
(ii) Upselling and Consumer Education
    62. As noted above, Public Knowledge and NASUCA have expressed 
concerns that incumbent LECs may take advantage of copper retirements 
to ``upsell'' subscribers--i.e., try to convince customers to purchase 
more profitable bundles of services in interactions that ostensibly are 
intended to prepare the customer for a change in facilities only (e.g., 
copper to fiber). We seek comment on whether this practice occurs or is 
reasonably foreseeable, the circumstances in which it occurs or would 
be reasonably foreseeable, and whether and how it harms or would harm 
consumers. Does upselling in such circumstances increase the likelihood 
of customer confusion? We are concerned by a number of consumer 
allegations that copper retirements have resulted in changes to their 
service may stem from aggressive or confusing upselling.
    63. We therefore propose requiring incumbent LECs to supply a 
neutral statement of the various choices that the LEC makes available 
to retail customers affected by the planned network change. We seek 
comment on this proposal. We anticipate that it would enable consumers 
to make informed choices and to have the tools to determine for 
themselves what services to purchase. Should we require that this 
information be provided as a part of the consumer notice discussed 
above or separately from that notice? Should we require that this 
information be communicated in writing, or should oral communication be 
permissible? How can we ensure that such information is accessible to 
people with disabilities?
    64. What kinds of services should we require the incumbent LEC to 
identify? Should it be required to identify services reasonably 
comparable to those to which the retail customer presently subscribes, 
or should a different standard apply? For voice services, should it be 
required to identify both facilities-based interconnected VoIP and TDM-
based services? Should it ever be required to identify non-facilities-
based services? Should it specifically be required to identify services 
designed for people with disabilities? We seek comment on whether the 
proposal would serve this purpose, whether it would address concerns 
about upselling, and whether it has any other benefits. We also seek 
comment on its drawbacks. In addition, we seek comment on whether this 
proposal advances important government interests and on whether any 
other less restrictive approaches would accomplish our consumer 
protection goals.
    65. We further seek comment on whether we should require incumbent 
LECs to undertake additional measures beyond the notice described above 
to educate their retail customers regarding planned copper retirements 
by which they may be affected, and, if so, what measures should be 
required. The Commission required broadcasters to undertake consumer 
education initiatives in connection with the DTV transition in order 
``to ensure that consumers will receive the information they need to 
make proper preparations for the digital transition of the stations on 
which they rely for television service.'' Is a similar education 
initiative necessary in the context of transitioning consumers away 
from legacy copper-based services? If so, what information should we 
require that consumers receive, how should it be conveyed, and to which 
consumers must this information be provided? We seek comment on the 
following possibilities:
     Direct mailing from the incumbent LEC to affected 
consumers containing clear explanations of any installation or 
modification of CPE;
     Minimum advance notice requirements for the scheduling of 
any service appointments and/or punctuality requirements for service 
appointments; and

We also seek comment on other possible consumer education requirements. 
Would the benefits of such requirements outweigh the burdens that they 
would impose on incumbent LECs? We seek comment on whether and how each 
consumer education requirement under consideration and any others 
suggested by commenters advance important government interests and 
whether other, less restrictive measures would accomplish the same 
goals. We also seek comment on our legal authority to impose any 
consumer education requirements.
    66. In addition, we seek comment on appropriate enforcement 
remedies in the event of failure to comply with any new copper 
retirement customer notice, education, or upselling requirements. Would 
forfeiture be an appropriate remedy? Should we consider requiring 
refunds to customers?
c. Expansion of Right To Comment
    67. Under our current network change disclosure rules, only 
information service providers and telecommunications service providers 
that directly interconnect with the incumbent LEC's network have the 
right to object to planned copper retirements, and they can only delay 
implementation for up to six months and seek technical assistance from 
the incumbent LEC. Since copper retirements may have significant impact 
on the public, members of the public should have the opportunity to 
comment publicly on such retirements. And industry participants should 
not be restricted unduly in the issues that they may draw to our 
attention. While the Bureau has provided the public at large with the 
opportunity to comment on network change disclosures via a special 
email address, we can do more to facilitate participation in this 
important process.
    68. We anticipate that these comments will assist us in many 
circumstances. For instance, we expect that it would help call to our 
attention circumstances in which incumbent LECs are not complying with 
their obligations. (Consumers who have concerns about any particular 
situation also can contact our Consumer & Governmental Affairs Bureau 
to file complaints.'') Moreover, we will find value in hearing from the 
public about the potential benefits and/or harms that could come from 
the retirement of these copper facilities in our policymaking decisions 
going forward. Finally, we anticipate that we will be able to use the 
comments we receive to monitor for circumstances in which an incumbent 
LEC's proposed copper retirement is accompanied by or is the cause of a 
discontinuance, reduction, or impairment of service provided over that 
copper--but the incumbent LEC has failed to seek the necessary 
authority, contrary to the requirements of Section 214(a) and our rules 
thereunder. We therefore propose revising our rules to provide the 
public, including retail customers and industry participants, with the 
opportunity to comment publicly on planned network changes. We seek 
comment on this proposal.
d. Notice to States and the Department of Defense
    69. We recognize that we are not the only governmental authority 
with important responsibilities with respect to technology transitions. 
In particular, States serve a vital function in safeguarding the values 
of the Network Compact. As we have recognized on multiple occasions, 
both ``State and federal enforcement tools are needed to protect 
consumers from fraudulent, deceptive, abusive, and unfair practices.'' 
Further, the Department of

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Defense plays a key role in ensuring that telecommunications 
infrastructure remains secure and promotes public safety. We are 
cognizant that these authorities need information about transitions to 
fulfill their duties. Our rules implementing Section 214 already 
require applicants seeking discontinuance authority to provide copies 
of their applications to these entities, so our rules facilitate their 
ability to monitor some technology transitions. We believe that these 
authorities also need to remain informed about copper retirements so 
that they can fulfill their respective missions with respect to the 
ongoing technology transitions. We propose requiring that incumbent 
LECs provide notice of planned copper retirements to the public utility 
commission and to the Governor of the State(s) in which the network 
change is proposed, and also to the Secretary of Defense. We expect 
that ensuring that State authorities receive notice of copper 
retirements will assist them in fulfilling their vital consumer 
protection role. Similarly, we expect that federal defense authorities 
will find this information useful in fulfilling their mission of 
ensuring the security of the Nation's communications networks. We seek 
comment on this proposal, including its benefits and drawbacks. 
Further, we seek comment on whether the same requirements should apply 
to other forms of network change notifications. Is there any reason why 
State authorities or the Department of Defense might need to receive 
notice of network changes that do not involve copper retirement? Are 
there other governmental entities that should also receive this direct 
notice, such as the Federal Aviation Administration, Tribal entities or 
municipalities, or should we rely on the expectation that any such 
other entity relying on the network will receive notice in the same 
manner as other customers? We also seek comment on our authority under 
section 251(c)(5) and/or other statutory provisions to impose this 
requirement.
e. Certification
    70. To enable effective enforcement of any new rules adopted 
pursuant to this document, we propose requiring incumbent LECs to 
certify their compliance. Certification requirements also serve to 
remind parties of their obligations. Our existing network change rules 
require incumbent LECs to file in certain circumstances a certificate 
of service and/or a certification, each confirming fulfillment of 
certain obligations under our rules. (That certification must include: 
(1) A statement identifying the proposed changes; (2) a statement that 
public notice has been given in compliance with applicable rules; and 
(3) a statement identifying the location of the change information and 
how it can be obtained.) Because we propose creating one comprehensive 
rule containing all requirements applicable to copper retirements, it 
will be most efficient for an incumbent LEC to provide us with a single 
certification confirming that it is has fulfilled its various 
responsibilities. We seek comment on this proposal.
    71. Under our existing rules, certifications, which must be filed 
when the incumbent LEC provides public notice other than by filing with 
the Commission, must include a statement identifying: (1) The proposed 
changes; (2) that public notice has been given in compliance with 
applicable rules; and (3) the location of the change information and 
how it can be obtained. Furthermore, certificates of service under our 
existing rules must include: (1) A statement that, at least five 
business days in advance of its filing with the Commission, the 
incumbent LEC served a copy of its public notice upon each telephone 
exchange service provider that directly interconnects with the 
incumbent LEC's network; and (2) the name and address of each such 
telephone exchange service provider upon which the notice was served. 
We believe that this information will provide important insights into 
copper retirements, so we propose requiring incumbent LECs engaged in a 
copper retirement to file a unified certification containing all of the 
above information.
    72. If we adopt our proposals to require incumbent LECs engaged in 
copper retirement to provide notice to customers as well as State and 
Department of Defense officials, we believe that it would be necessary 
for incumbent LECs to also certify their compliance with these proposed 
requirements to enable us to confirm their compliance. We therefore 
propose requiring incumbent LECs' certifications to include, in 
addition to the information required above:
     A statement that, at least five business days in advance 
of its filing with the Commission, the incumbent LEC served the 
required direct notice upon all affected retail customers;
     A copy of the written notice provided to affected retail 
customers; and
     A statement that the incumbent LEC notified and submitted 
a copy of its public notice to the public utility commission and to the 
Governor of the State in which the network change is proposed, and also 
to the Secretary of Defense.
    73. We seek comment on these certification proposals, including on 
their benefits and drawbacks. Should we require incumbent LECs to 
include any additional information in the certifications that they 
file? Could we achieve our goals while requiring incumbent LECs to 
include less information in their certifications? What should be the 
deadline for filing a certification? Should we require either an 
officer of the incumbent LEC or an individual authorized by the 
incumbent LEC to sign the certification and attest to the truth and 
accuracy of the representations therein under penalty of perjury? We 
also seek comment on our authority under section 251(c)(5) and/or other 
statutory provisions to impose these certification requirements.
3. Sale of Copper Facilities That Would Otherwise Be Retired
    74. One potential way to maintain valued parts of the copper 
network while allowing incumbent LECs to continue their technology 
transition plans would be for incumbent LECs to sell or auction copper 
facilities that they intend to retire, on reasonable terms and 
conditions. Incumbent LECs could offload unwanted copper while 
competitors or other entities could continue to use the facilities to 
provide copper-based services. Consumers would continue to reap the 
benefits of their collective investment in our Nation's copper networks 
by retaining more competitive alternatives than would otherwise be 
available.
    75. Competitive LECs have demonstrated at least some interest in 
purchasing retired copper facilities. For example, in their petition 
for a copper retirement rulemaking, BridgeCom et al. request that the 
Commission consider requiring or authorizing incumbent LECs to sell or 
auction copper ``pursuant to some public and fair process.'' These 
competitive LECs claim a sale or auction would allow incumbent LECs to 
``terminate ownership and most responsibility for unwanted loops while 
also preserving the potential benefits of use of spare copper loops for 
provision of competitive services.'' WorldNet, a competitive LEC 
serving small- and medium-sized business in Puerto Rico, also 
recommends requiring incumbent LECs to offer copper facilities for sale 
as a condition to retirement.
    76. AT&T has stated as part of its technology transition proposal 
that it would consider selling retired copper facilities to competitive 
carriers that wish to use those facilities to provide service to their 
customers. In May, AT&T submitted a general proposal to

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offer copper loops that are retired under the network change disclosure 
rules for sale on commercial terms to competitive carriers. Under 
AT&T's proposal, the parties would establish two agreements. The first 
agreement would be the general terms and conditions of the copper sale, 
including obligations of the purchaser. The terms state that the 
purchaser is responsible for any costs associated with re-terminating 
the cable at the frame and service area interface. In addition, the 
copper will be provided in ``as-is'' condition, and the purchaser is 
responsible for all maintenance and liabilities. This agreement also 
provides for a 90-day transition period and establishes the 
responsibilities of both parties during the transition. The second 
agreement provides for access to poles and/or conduit either by sale or 
lease. With respect to timing of the sale, AT&T's proposal provides for 
a 150-day process: 30-day notice period, 30-day proposal or bid review 
period, and 90-day negotiation period to complete the sale. (If the 
parties do not sign the agreement at the end of the 90 days, the offer 
is rescinded.)
    77. We believe that sale of copper facilities could be a win-win 
proposition that permits incumbent LECs to manage their networks as 
they see fit while ensuring that copper remains available as a vehicle 
for competition. We therefore seek comment on whether and how we should 
take action to promote the sale or auction of copper prior to 
retirement. We intend to develop a record to gauge the level of 
interest by competitive providers or others to purchase retired copper 
facilities and address some of the issues involved in a sale or 
auction. We further intend to determine what role, if any, the 
Commission should play in any sale or auction of copper, including 
whether the Commission should establish rules requiring incumbent LECs 
to make a good faith effort to sell their copper networks before 
retiring the facilities.
    78. Interest in Purchase. First, we seek to gauge the level of 
interest by competitive providers and others in purchasing copper 
facilities that incumbents intend to retire. Under what terms and in 
what circumstances would competitive providers or others be interested 
in purchasing copper facilities? Although we have noted above the 
importance of copper and expressions of interest in the purchase of 
such facilities, do stakeholders feel purchasing retired copper is a 
valid or plausible method to address the competitive concerns raised by 
incumbent LEC copper retirement? What are the benefits and drawbacks to 
continued use of copper where fiber has been built-out?
    79. Means of Facilitating Sale or Action. We seek comment on how 
the Commission can most effectively facilitate sale or auction of 
copper facilities than an incumbent LEC intends to retire. We 
tentatively conclude that the Commission should pursue a voluntary 
approach, rather than impose a requirement for sale or auction of 
copper facilities, as proposed by parties such as WorldNet. To that 
end, we seek comment on whether and how the Commission could facilitate 
the voluntary sale or auction of copper. What would be the role of the 
Commission, if any? Are there any existing rules or procedures the 
Commission may use to encourage the sale or auction of copper? Are 
there any regulatory barriers to the sale or auction of copper the 
Commission should remove? Is there a role for state public service 
commissions in encouraging sale or auction of copper that an incumbent 
LEC intends to retire?
    80. Structure of Sale or Auction. We seek comment on the ideal 
structure of any sale or auction, regardless of whether the sale or 
auction occurs voluntarily, as we propose, or pursuant to a regulatory 
requirement. We seek comment on AT&T's proposed structure, as well as 
on alternative sale and auction structures. If an auction mechanism 
were used, what form of auction would be most effective? How would a 
sale or auction work? For example, should a third-party be established 
to process the sale or act as clearinghouse for an auction? What are 
the advantages and disadvantages of each structure? Does one structure 
better promote the technology transition and our core values? To be 
effective, what is the minimum amount of time during which an incumbent 
LEC would need to offer the copper for sale or auction prior to 
retiring the network?
    81. Price and Terms of Sale or Auction. We assume that price and 
terms of sale for copper facilities will be a driving factor in any 
transaction. We further assume that in any regulatory mechanism, 
incumbent LECs would be able to reject offers or bids that do not meet 
minimum thresholds on price and other terms. What would parties expect 
such minimum standards to be?

C. Section 214 Discontinuances

    82. Our fundamental values and the Commission's statutory 
obligations are not lost or mooted merely because legacy services are 
discontinued. Therefore, it is critical for us to define carriers' 
responsibilities when discontinuing legacy services to ensure that we 
carry our values forward without regard to the particular technology 
used. In this document, we advance this goal in three ways. First, to 
ensure that we protect consumers, competition, and public safety, we 
seek comment on what constitutes an adequate substitute for a retail 
service being discontinued, reduced, or impaired. Second, we seek 
comment on better defining the scope of our Section 214(a) authority, 
focusing in particular on the context of wholesale services. Third, we 
recognize the critical importance of ensuring that technology 
transitions do no harm to the benefits of competitive access, 
particularly in the period prior to ultimate action in our special 
access proceeding. Accordingly, we tentatively conclude that we should 
require incumbent LECs that seek Section 214 authority to discontinue, 
reduce, or impair a legacy service used as a wholesale input by 
competitive providers to commit to providing equivalent wholesale 
access on equivalent rates, terms, and conditions. We also seek comment 
on the relationship between the duration of this requirement, which 
would take the form of a condition imposed on a grant of discontinuance 
authority for TDM services on which competitive carriers depend, and 
the ultimate outcome of our special access proceeding.
1. What Constitutes an Adequate Substitute for a Retail Service a 
Carrier Seeks To Discontinue, Reduce, or Impair?
    83. We agree with Public Knowledge that the public and industry 
alike would benefit from establishment of criteria to evaluate 
replacement technologies when a carrier files an application to 
discontinue a retail service pursuant to Section 214(a). We focus this 
inquiry, in particular, on consumer products. Industry and the public 
will benefit from articulation of clear, technologically neutral 
principles that define what constitutes an adequate substitute for 
consumers for a discontinued retail service. We therefore seek comment 
on whether the Commission should update its rules to define what would 
constitute an adequate substitute for retail services that a carrier 
seeks to discontinue, reduce, or impair in connection with a technology 
transition (e.g., TDM to IP, wireline to wireless). We will also look 
to any service-based experiments and other data collection activities 
that occur pursuant to the January Technology Transitions Order to 
inform these questions. We undertake this inquiry, in part, to ensure 
that the transition to IP-supported technologies

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does not impair the security, integrity and reliability of our nation's 
communications infrastructure.
    84. What factors should we consider in evaluating Section 214 
filings concerning discontinuance of retail services? Should certain 
factors be given greater weight than others? In particular, how much 
weight should we give to the adequacy of available substitutes? In the 
context of AT&T's proposed service-based experiments, Public Knowledge 
identified ten attributes it believes require particular evaluation: 
``(1) Network capacity, (2) Call quality, (3) Device interoperability, 
(4) Service for the deaf and disabled, (5) System availability, (6) 
PSAP and 9-1-1 service, (7) Cybersecurity, (8) Call persistence, (9) 
Call functionality, and (10) Wireline coverage.'' We seek comment on 
whether and how the Commission should consider these and/or other 
attributes and on the costs and benefits of articulating specific 
attributes. And we seek comment on what law enforcement capabilities 
the Commission should seek to preserve as the underlying communications 
technology changes. (We are committed to ensuring that law enforcement 
capabilities are maintained throughout the technology transitions.) We 
also seek comment on whether it should be necessary to meet all of the 
criteria to obtain streamlined treatment and/or approval or whether 
some criteria should be considered more important than others. And what 
should the Commission look for in evaluating each of the factors 
commenters may suggest? What enforcement remedies are appropriate for a 
carrier that obtains discontinuance authority predicated on meeting 
certain adequacy standards but fails to abide by those commitments? 
Should an applicant that seeks to discontinue a retail service be 
entitled to streamlined treatment and/or approval if a competitor 
offers a service that meets the criteria that we identify for an 
adequate substitute? What are the costs and benefits of this and other 
approaches to implementing criteria for adequacy of substitutes? We 
emphasize that we seek to develop technology-neutral criteria and do 
not wish to issue any technology mandates. We also seek comment on 
whether consumers expect, or should be entitled to expect, the same or 
equivalent functionalities from new services, or whether there are 
benefits from new services (e.g., more choice, lower cost, better 
features) that would compensate for any differences.
    85. Below we discuss several of the attributes identified above, 
but we emphasize that we are interested broadly in identification and 
discussion (including weighing of costs and benefits) of possible 
attributes that the Commission should consider in evaluating Section 
214 filings concerning discontinuance of retail services.
    86. With respect to services for consumers with disabilities, we 
seek comment on the extent to which an applicant that seeks to 
discontinue support for analog services must ensure that its services 
are compatible with assistive devices used by people with disabilities, 
and provide notice to people with disabilities regarding the potential 
for disruption in service. (Consumers with disabilities ask the 
Commission to make sure that accessible features are built into the 
design of new networks and services from the outset, and that various 
currently accessible technologies are made widely available and 
affordable during and after the retirement process.) For example, to 
what extent will the applicant be required to identify the services 
that might be disrupted--e.g., home health monitoring, TTY-based 
communications--and the extent to which loss of support for each such 
service might have an adverse impact on people with disabilities, as 
well as its plans for acceptable replacements? How should we account 
for consumer trends in determining adequate substitutes? What factors 
affecting access by people with disabilities should we consider in 
defining what would constitute an adequate substitute for retail 
services that a carrier seeks to discontinue, reduce, or impair in 
connection with a technology transition?
    87. With respect to call functionality, what functionality is 
relevant? Should we consider only functionality related to voice calls 
(e.g., ability to use caller ID), or should we consider non-call 
functions as well? With regard to non-call functionality, should we 
consider, for instance, the functionality of third-party CPE and/or 
services such as home alarms, fax machines and medical alert monitors? 
Should we apply general principles or more specific technical 
standards, and in each case what principles or standards should we 
apply? How can we ensure that our evaluation of functionality is 
technology neutral?
    88. With regard to call persistence, what factors should we 
consider? Should we consider only voice calls or other forms of 
communication as well? Should we evaluate the likelihood of improperly 
dropping calls or other forms of communication? Should we consider 
whether there is risk of blocking, choking, reducing, or restricting 
traffic? (We note that the Bureau has issued two Declaratory Rulings 
clarifying that carriers are prohibited from blocking, choking, 
reducing, or restricting traffic in any way, including to avoid 
termination charges; and clarifying the scope of the Commission's 
prohibition on blocking, choking, reducing, or restricting telephone 
traffic which may violate section 201 or 202 of the Act.) Are other 
criteria relevant? What metrics should we apply? Should we apply a 
minimum performance threshold? How can we ensure that call persistence 
will be sustained after a Section 214 application is approved?
    89. With respect to communications security, while IP technologies 
can produce cost efficiencies, they also can create the potential for 
network security risks through the exposure of network monitoring and 
control systems to end users. Communications network owners and 
operators have expressed a broad consensus that risk management 
measures are necessary to address these risks. Providers should 
implement security plans that can be communicated internally and 
externally with providers for which security interdependencies exist. 
We seek comment on the extent to which providers have implemented such 
measures; whether such implementation has been effective; and whether 
various providers possess understanding of other providers' risk 
management measures sufficient to address collective risks in an 
interconnected IP-network environment. We also seek comment on whether 
the Commission should require demonstration, as part of the Section 214 
discontinuance process, that any IP-supported networks or network 
components offer comparable communications security, integrity, and 
reliability. If so, we seek comment on what factors would be relevant 
to making such a determination.
    90. With respect to PSAP and 911 service, is it sufficient that a 
provider demonstrate that a substitute retail service available to its 
customers will offer 911 capabilities that comport with Commission 
rules? Should providers further affirm that the transition to such 
substitute retail service will not result in any reduction in 911 
capability relative to that offered by the discontinued service? For 
example, if a provider supplies latitude and longitude (``x,y'') 
coordinates for fixed and portable wireless home phones and femtocells 
that may replace in-home wire-based solutions, is that equivalent to 
the provision of a validated civic address Automatic Location 
Identification (ALI)? What is the impact on PSAPs if providers take 
different approaches in

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providing civic address ALI or just x,y whereas previously PSAPs have 
been expecting specific information from such providers? Do the issues 
raised in the 911 Policy Statement and NPRM, also adopted today, have 
any bearing on these questions? Although our primary focus is on 
consumer products, we also seek comment on what criteria we should 
apply for carriers that seek under Section 214 to discontinue 911 
service to PSAPs. We also seek comment on the relationship between 
consideration of PSAP and 911 service pursuant to Section 214(a) and 
the 911 Policy Statement and Notice of Proposed Rulemaking also adopted 
today.
    91. In addition to developing factors to guide evaluation of 
Section 214 discontinuance filings, we are interested in learning about 
means by which carriers and other industry segments can work 
collaboratively to ensure that new services meet the expectations and 
needs of consumers before any discontinuance occurs. For example, ADT 
Security Services reports that ``the alarm industry is working with IP 
communications service providers to develop technical agreements that 
base their communications on Managed Facilities-Based Voice Network 
(MFVN) standards'' to ensure that alarm monitoring systems already in 
consumers' homes can transmit alarm signals properly during emergency 
situations. We seek comment on progress in developing and implementing 
the MFVN standards and other standards or initiatives that may ease 
consumers' transition to new services. Also, is there anything the 
Commission can or should do to facilitate the development and 
implementation of such solutions?
2. Scope of Section 214(a) Discontinuance Authority and Wholesale 
Services
    92. Rebuttable Presumption. Under our precedent, a carrier need not 
seek Commission approval when discontinuing service to carrier 
customers if there is no discontinuance, reduction, or impairment of 
service to retail end-users. We do not propose to change course from 
this precedent. However, Section 214 and our implementing rules were 
designed to protect retail customers from adverse impacts associated 
with discontinuances, reductions, or impairments of service. As 
described above, competitive LECs play a vital role in serving the 
enterprise market. Where an incumbent LEC discontinues, reduces, or 
impairs a service offering used by competitive LECs to provide end 
users with service, this can also be expected to affect the competitive 
LECs' retail customers. We seek comment on whether this is the case. We 
are concerned that in the absence of further guidance, some carriers 
will mistakenly assume that their wholesale services are not relied 
upon by competitive LECs in serving retail customers, and thus will 
discontinue, reduce, or impair those services without following the 
process mandated by the Act. We seek comment on whether this concern is 
justified.
    93. To address this potential issue, we seek comment on adopting a 
rebuttable presumption that where a carrier seeks to discontinue, 
reduce, or impair a wholesale service, that action will discontinue, 
reduce, or impair service to a community or part of a community such 
that approval is necessary pursuant to Section 214(a). This presumption 
would be rebutted where it could be shown that either: (i) 
Discontinuance, reduction, or impairment of the wholesale service would 
not discontinue, reduce, or impair service to a community or part of a 
community; or (ii) discontinuance, reduction, or impairment of the 
wholesale service would not impair the adequacy or quality of service 
provided to end users by either the incumbent LEC or competitive LECs 
in the market. We seek comment on this proposal, including on its costs 
and benefits. Is there any reason why we should not adopt this 
proposal? Should we modify it in any way? Should we evaluate the 
quality of service provided to end users with reference to service by 
competitive LECs in the market that use the wholesale service in 
question, or should we consider a different denominator of service 
providers? Is such a presumption consistent with Section 214(a)? How 
should we confirm that an incumbent LEC that discontinues a wholesale 
service and declines to file an application has properly rebutted the 
presumption? Should we require the incumbent LEC to file a 
certification with the Commission identifying and providing the basis 
for its conclusion? Should the incumbent LEC be required to send a copy 
of this certification to its competitive LEC wholesale customers and/or 
make the certification public? What should be the format and timing of 
this certification? In the alternative, should the incumbent LEC be 
required to maintain a record of the facts and analysis it relied on to 
determine the presumption was rebutted for a set period of time, and if 
so what period of time? Should we instead allow the incumbent LEC to 
determine for itself what records to retain?
    94. Term Discount Plans. A discrete but related issue concerns 
whether a Section 214(a) discontinuance application is required when 
certain term discount plans are discontinued. For example, many TDM-
based services are provided pursuant to various term plans for specific 
periods of time, such as one-year, three-year, five-year and seven-year 
commitment periods. In transitioning from TDM-based services to IP-
based services, questions arise as to whether a Section 214 application 
is required with individual incremental changes, such as the 
elimination of a subset of the available service plans that reduce 
options for customers by eliminating longer term plans with associated 
higher discounts (lower prices) prior to elimination of shorter term 
plans. In such situations, the carrier may claim at each incremental 
change that, because there are other term plans available, the service 
is still available and thus no Section 214 application to discontinue, 
reduce, or impair service is required. Accordingly, we seek comment on 
this situation. When a carrier is transitioning from TDM-based services 
to IP-based services, at what point in the process is the carrier 
required to file a Section 214 application? Although the Commission 
previously has held that a change in rates does not constitute a 
discontinuance of a service under Section 214, are there any rate 
changes that might fall outside the logic of those decisions, and 
should the Commission change course in this situation and conclude that 
an elimination of certain rate options can constitute an impairment of 
service if it is part of a longer term transition? For instance, in 
many of the sets of term plans applicable to an individual service, the 
largest discounts are provided to customers that purchase term plans 
longer than five years. If a carrier pursues elimination of the term 
plans individually, eliminating the longer term plans first, customers' 
only purchase options would be shorter length term plans at much higher 
rates, an effective rate increase. Does such a rate increase constitute 
a reduction or impairment of service under Section 214, and what 
criteria may be helpful in this analysis? If not, at what point, if 
any, in the course of eliminating individual rate options for the same 
service is the service reduced or impaired, such that the carrier is 
required to seek authority pursuant to Section 214? We seek comment on 
this question and on the point in the transition at which incumbent 
LECs should be required to obtain Section 214 authority. What are the 
costs and

[[Page 466]]

benefits of various approaches to these questions?
    95. Tariffed and Non-Tariffed Services. We note that there may be a 
question regarding whether a carrier is required to file a Section 214 
application if a non-tariffed service still being offered is 
functionally very similar to a tariffed service being discontinued. 
Indeed, in the past carriers have argued that no Section 214 
application is required when discontinuing a tariffed service if they 
currently offer a non-tariffed service that is similar to the tariffed 
service being discontinued. We seek comment on whether in such 
situations, a Section 214 application should be required, because there 
is a service being removed from the tariff and whether that constitutes 
a discontinuance, impairment or reduction of service, and on the costs 
and benefits of possible approaches.
3. Maintaining Wholesale Access to Last-Mile Services
    96. Competitive LECs are concerned that, if incumbent LECs 
discontinue TDM-based services in the transition from TDM to IP-based 
services, competitive LECs will lose the ability to access last-mile 
facilities necessary to serve their customers, such as DS1 and DS3 
special access lines. (No discontinuance would affect an incumbent 
LEC's obligations to provide unbundled access to loops under Sec.  
51.319(a)(4) of our rules.) As noted above, competitive LECs use these 
facilities to serve retail customers, including providing packet-based 
broadband services to hundreds of thousands of American businesses at 
competitive prices. COMPTEL asserts that ``the overwhelming majority of 
competition in the business broadband market comes from competitive 
carriers that rely substantially on last-mile inputs from the incumbent 
LEC.'' Competitive LECs, like the incumbents, want to transition 
customers to next generation services and desire a transition without 
disruptions in service and on comparable terms and conditions.
    97. According to the competitive LECs, the uncertainty associated 
with the possible discontinuance of incumbent LECs' legacy services and 
replacement with packet-based services creates competitive 
disadvantages and major concerns about the ability to serve present and 
new customers. Windstream, for example, argues competitive LECs ``face 
the prospect of entering into long-term contracts on the assumption 
that they will continue to be able to purchase equivalent services at 
equivalent rates, terms, and conditions after the transition, or 
attempting to price those future unknown input services, rates, terms 
and conditions into their contracts.'' While competitive LECs request 
that the Commission protect their access rights to these last-mile 
services amidst technology transitions, incumbent LECs are concerned 
that being required to offer long-term TDM arrangements may impede 
their plans to move to IP-based services.
    98. In this rulemaking proceeding, we examine the role of Section 
214 of the Act as incumbent LECs seek to discontinue TDM-based service 
used as wholesale inputs. As guidance, the National Broadband Plan 
recommends that the Commission adopt wholesale access frameworks to 
``ensure widespread availability of inputs for broadband services.''
    99. The Section 214 discontinuance process provides for Commission 
oversight to ensure that consumers are fully informed of any proposed 
change to reduce or end service, and that adequate alternative services 
are available to them. Related to that, Sec.  63.71 of the Commission's 
rules establishes the procedures that carriers must follow to obtain 
such Commission approval, including notification of affected customers 
and the filing of an application for approval of the proposed 
discontinuance. As incumbent LECs announce plans and deadlines to 
transition away from TDM-based services to IP-based services, the 
Commission will be called upon to strike the appropriate balance 
between facilitating a viable migration path to IP-based services for 
incumbent and competitive LECs, and promoting competition and the 
public interest within the meaning of Section 214. We also take this 
opportunity to point out that since Section 214(a) and the Commission's 
discontinuance rules apply to common carrier and interconnected VoIP 
services, the mere fact that a carrier obtains discontinuance 
authorization under Section 214(a) for such services has no legal 
bearing on its obligation to provide UNEs under Sec.  51.319 of our 
rules. The Commission has held that ``the provision of an unbundled 
network element is not the provision of a telecommunications service.''
    100. Technology transitions must not harm or undermine competition. 
Our present goal is to maintain established rules and decisions that 
provide for wholesale access to critical inputs as we continue our 
special access rulemaking proceeding, along with other initiatives such 
as technology trials, to determine how customers are affected and 
whether rules and policies need to be modified in the future. Given the 
vital role that wholesale access to critical inputs plays in promoting 
competition, we seek to ensure on an interim basis the availability of 
last-mile services to competitive LECs as incumbent LECs begin to 
discontinue their legacy networks in the transition to IP technology. 
As a result, we tentatively conclude that we should require incumbent 
LECs that seek Section 214 authority to discontinue, reduce, or impair 
a legacy service that is used as a wholesale input by competitive 
carriers to commit to providing competitive carriers equivalent 
wholesale access on equivalent rates, terms, and conditions. We seek 
comment on this tentative conclusion and how or whether it will promote 
the benefits of competition--innovation, investment, economic growth 
for the nation, and competitive prices and services for consumers. To 
what services should this apply? We also seek comment on the costs and 
benefits of such a conclusion--for example, how would it affect the 
incentives for incumbent LECs to upgrade their facilities? Should we 
require incumbent LECs to commit to a different standard, such as a 
``reasonably comparable'' standard? We also seek comment on whether we 
should apply any standard that we establish as a condition on the grant 
of Section 214 discontinuance authority to preserve competition as we 
transition to an all-IP world or as a guide when considering 
applications. If applied as a condition on the grant, then we seek 
comment on the appropriate term. For example, should its duration be 
indefinite, or should it be dependent upon the outcome of our special 
access proceeding? And we seek comment on appropriate enforcement 
remedies for failure to comply with this proposed obligation.
    101. Furthermore, through seeking comment in this rulemaking, we 
seek to establish important ground rules that would facilitate the IP 
transition by establishing objective standards and clear criteria for 
applying the standard set forth above in advance of Section 214 
applications and narrowing the range of time-consuming individual 
disputes. For example, Windstream has suggested that when an incumbent 
LEC is discontinuing legacy services offered at speeds of 50 Mbps or 
less that the Commission apply six principles to evaluate replacement 
offerings as follows:
    (1) Price per Mbps Shall Not Increase. The price per Mbps of the IP 
replacement product shall not exceed

[[Page 467]]

the price per Mbps of the TDM product that otherwise would have been 
used to provide comparable special access service at 50 Mbps or below.
    (2) A Provider's Wholesale Rates Shall Not Exceed Its Retail Rates. 
An incumbent's wholesale charges for the IP replacement product shall 
not exceed its retail rates for the equivalent offering.
    (3) Basic Service Pricing Shall Not Increase. The wholesale price 
of the lowest capacity level of special access service at or above the 
DS1 level shall not increase (e.g., 2 Mbps Ethernet price shall not 
exceed the DS1 price when 2 Mbps is the lowest Ethernet option 
available).
    (4) Bandwidth Options Shall Not Be Reduced: Wholesale bandwidth 
options must, at a minimum, include the options that the incumbent 
offers to its retail business service customers.
    (5) No Backdoor Price Increases: Price hikes shall not be 
effectuated via significant changes to charges for NNI or any other 
rate elements, lock-up provisions, ETFs, special construction charges, 
or any other measure.
    (6) No Impairment of Service Delivery or Quality: Service 
functionality and quality, OSS efficiency, and other elements affecting 
service quality shall be equivalent to, if not better than, what is 
provided for TDM inputs today. Installation intervals and other 
elements affecting service delivery shall be equivalent to, if not 
better than, what the incumbent delivers for its own or its affiliates' 
operations.

    We seek comment on each of Windstream's proposed principles and 
other principles the Commission could use to guide its determinations 
of a functionally equivalent service with equivalent rates, terms, and 
conditions. Are some of Windstream's proposed principles more 
appropriate for adoption in this proceeding than others? For each 
principle, should its duration be indefinite, or should it be dependent 
upon the outcome of our special access proceeding?
    102. We note that the Commission, in evaluating Section 214 
applications, is called upon to examine a number of factors. (Those 
factors include: (1) The financial impact on the provider of continuing 
to provide the service; (2) the need for the service in general; (3) 
the need for the particular facilities in question; (40 the existence, 
availability, and adequacy of alternatives; and (5) increased charges 
for alternative services, although this factor may be outweighed by 
other considerations.) To accomplish the underlying goal of ensuring 
that competition is not adversely affected as incumbent LECs 
discontinue their TDM services in the IP transition, which the 
tentative conclusion is intended to address, we seek comment on whether 
the Commission should evaluate any other factors in the reasonable 
interpretation of Section 214. Should we consider revising our rules in 
the way we apply this provision? We note that many of the services that 
the incumbent LECs are claiming would replace TDM offerings currently 
are not offered pursuant to tariffs and therefore, lack the 
transparency and section 203 protections that purchasing a tariffed 
service provides. How should the Commission take these differences into 
account in considering whether these services are adequate substitutes?
    103. In addition, we seek comment on whether we should consider 
revising Sec.  63.71 of the Commission's rules that establish the 
procedures that carriers should follow to obtain Section 214 approval, 
including notification of affected customers. We recognize that 
incumbent LECs and wholesale customers may be at different stages of 
moving to IP-based services. Incumbent LECs argue that without the 
ability to discontinue long-term TDM-based offerings, their transition 
plans to IP services may be impeded. Meanwhile, competitive LECs 
express concerns that ``wholesale customers need significant lead time 
so that they can both plan for the necessary changes to their products 
as well as prepare their customers for changes to offerings dependent 
upon ILEC last-mile facilities.'' Therefore, we seek comment on what is 
sufficient notice for competitive LECs when there is a discontinuance, 
reduction, or impairment of service in a transitioning market. In 
particular, how much lead time is needed for a competitive LEC to move 
its customers to alternative service arrangements absent disruptions in 
service while not unduly impeding the incumbent LEC's ability to 
transition? Additionally, many competitive LECs currently purchase 
wholesale inputs pursuant to long-term tariffs and other agreements 
that contain early termination penalties. How should such terms be 
treated when the provisioning carrier is seeking to end provisioning a 
service and the purchasing carrier needs to move to alternative 
services and/or providers in order to continue providing its retail 
offering? We seek comment on both the timing and form of notice. Does 
the sufficiency of the notice depend on how many of the competitive 
LEC(s) customers will have to be moved as a result of the discontinued, 
reduced, or impaired service?

IV. Procedural Matters

A. Ex Parte Presentations

    104. The proceeding this document initiates shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making ex parte presentations must file a copy 
of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule 1.1206(b). In proceedings governed by 
rule 1.49(f) or for which the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.

B. Filing Instructions

    105. Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's 
rules, interested parties may file comments and reply comments on or 
before the dates indicated on the first page of this document. Comments 
may be filed by paper or by using the Commission's Electronic Comment 
Filing System (ECFS).
     Electronic Filers: Comments may be filed electronically 
using the Internet by

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accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing. Because 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. All filings must be addressed to the Commission's Secretary, 
Office of the Secretary, Federal Communications Commission.
     All hand-delivered or messenger-delivered paper filings 
for the Commission's Secretary must be delivered to FCC Headquarters at 
445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours 
are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together 
with rubber bands or fasteners. Any envelopes and boxes 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 must be addressed to 445 12th Street SW., Washington, DC 20554.

    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to [email protected] or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).

C. Paperwork Reduction Act

    106. This document contains proposed new and modified information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and the 
Office of Management and Budget (OMB) to comment on the information 
collection requirements contained in this document, as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. In addition, 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we 
might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.''

D. Regulatory Flexibility Act

    107. As required by the Regulatory Flexibility Act of 1980 (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 proposed in the NPRM. The analysis is found 
below. We request written public comment on the analysis. Comments must 
be filed in accordance with the same deadlines as comments filed in 
response to the NPRM and must have a separate and distinct heading 
designating them as responses to the IRFA. The Commission's Consumer 
and Governmental Affairs Bureau, Reference Information Center, will 
send a copy of this Notice of Proposed Rulemaking, including the IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration.

E. Initial Regulatory Flexibility Analysis

    1. As required by the Regulatory Flexibility Act (RFA), the 
Commission has prepared this present Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on small 
entities by the policies and rules proposed in this Notice of Proposed 
Rule Making (Notice). 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 provided in paragraph [insert] of 
this Notice. The Commission will send a copy of this Notice, including 
this IRFA, to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA). In addition, the Notice and IRFA (or summaries 
thereof) will be published in the Federal Register.

F. Need for, and Objectives of, the Proposed Rules

    2. The Notice proposes new steps to address competition and 
consumer protection issues in connection with copper retirement, 
service transitions, and related issues. The Commission has recognized 
that the Nation's communications networks are in the midst of a 
technological revolution involving the transition from a network based 
on time-division multiplexed (TDM) circuit-switched voice services 
running on copper loops to an all-Internet Protocol (IP) multi-media 
network using copper, co-axial cable, wireless, and fiber as physical 
infrastructure. The Commission has also recognized the need to ensure 
our core values as we move further toward the tipping point of the 
technology transition. Thus, the Commission seeks comment on a variety 
of issues in the following areas.
    3. First, the Notice proposes and seeks comment on steps the 
Commission could take to safeguard continuity of communications 
throughout a power outage, including the possible adoption of new rules 
in this area.
    4. Second, the Notice seeks comment on a proposed definition of 
copper retirement that includes within its purview copper loops, 
subloops, and the feeder portion of the loop, and the removing and 
disabling of those loops, subloops and feeder portion of the loops.
    5. Third, the Notice seeks comment on whether and how the 
Commission's rules should ensure that incumbent LECs maintain copper 
facilities for which they have not undergone the retirement process. 
The Notice also seeks comment on whether and how the Commission should 
revise its rules to address inadequate maintenance, including whether 
to define retirement to include de facto retirement, i.e., failure to 
maintain copper that is the functional equivalent of removal or 
disabling.
    6. Fourth, the Notice seeks comment on modifications to the 
Commission's existing network change disclosure rules. These rule 
revisions would expand notice, comment, and objection requirements for 
notices of network change. Specifically, the Notice seeks comment on 
whether to: (1) Encompass the feeder portion of copper loops and 
subloops in the rules; (2) require direct notification to all 
interconnecting carriers plus a public notice filed with the 
Commission; (3) extend the minimum time for providing notice of copper 
retirements; (4) expand the notice requirement to retail customers; (5) 
allow incumbent LECs to use written or electronic notice such as email 
to provide notice to retail customers of a planned copper retirement; 
(6) impose minimum requirements for the content of notices to retail 
customers; (7) require incumbent LEC to maintain records of customer 
notifications for some period of time; (8) prohibit incumbent LECs from 
including in notice to retail customers any statement attempting to 
encourage the purchase of a service other than the service to which the 
customer currently subscribes; (8) require that retail customers be 
given the same amount of notice as we propose to provide to 
interconnected providers in connection with copper retirement notices; 
(9) require that the incumbent LEC file a certificate of service with 
the Commission that includes all of the following: (i) A statement that 
identifies the proposed

[[Page 469]]

changes; (ii) a statement that public notice has been given in 
compliance with the rule; (iii) if an incumbent LEC provides public 
notice other than by filing with the Commission, a statement 
identifying the location of the change information and describing how 
this information can be obtained; (iv) a statement that, at least five 
business days in advance of its filing with the Commission, the 
incumbent LEC served a copy of its public notice upon each 
interconnecting telephone exchange service provider; (v) the name and 
address of each interconnecting provider upon which written 
notification was served; (vi) a statement that, at least five business 
days in advance of its filing with the Commission, the incumbent LEC 
served the required direct notice upon all affected retail customers; 
(vii) a copy of the written notice provided to affected retail 
customers; and (viii) a statement that the incumbent LEC notified and 
submitted a copy of its public notice to the public utility commission 
and to the Governor of the State in which the network change is 
proposed, and also to the Secretary of Defense; and (10) allow retail 
customers the opportunity to publicly comment on copper retirement 
notices.
    7. Fifth, the Notice seeks comment on whether and how the 
Commission should take action to promote the sale or auction of copper 
prior to retirement. The Notice seeks to gauge the level of interest by 
competitive providers and others in purchasing copper facilities that 
incumbents intend to retire, including under what terms and in what 
circumstances would they be interested in purchasing copper facilities. 
The Notice also seeks comment on whether and how the Commission should 
encourage the voluntary sale or auction of copper.
    8. Sixth, seeks comment on whether the Commission should update its 
rules to define what would constitute an adequate substitute for a 
retail service that a carrier seeks to discontinue, reduce, or impair.
    9. Seventh, the Notice seeks comment on establishing a rebuttable 
presumption that where a carrier seeks to discontinue, reduce, or 
impair a wholesale service, that action will discontinue, reduce, or 
impair service to a community or part of a community such that approval 
is necessary pursuant to Section 214(a). The Notice also seeks comment 
on whether a Section 214(a) discontinuance application is required when 
certain term discount plans are discontinued. And the Notice seeks 
comment on whether a carrier is required to file a Section 214 
application if a non-tariffed service still being offered is 
functionally very similar to a tariffed service being discontinued.
    10. Finally, with respect to competitive access to wholesale last-
mile services, this Notice tentatively concludes that we should require 
incumbent LECs that seek Section 214 authority to discontinue, reduce, 
or impair a legacy service that is used as a wholesale input by 
competitive providers to commit to providing competitive carriers 
equivalent wholesale access on equivalent rates, terms, and conditions.

G. Legal Basis

    11. The proposed action is authorized under sections 1, 2, 4(i), 
214, and 251 of the Communications Act of 1934, as amended; 47 U.S.C. 
151, 152, 154(i), 214, and 251.

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

    12. The RFA directs agencies to provide a description and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under 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.
    13. The majority of our proposals in the Notice will affect 
obligations on incumbent LECs. Other entities, however, that choose to 
object to network change notification for copper retirement under our 
new proposed rules may be economically impacted by the proposals in 
this Notice.
    14. Small Businesses. Nationwide, there are a total of 
approximately 28.2 million small businesses, according to the SBA.
    15. Wired Telecommunications Carriers. The SBA has developed a 
small business size standard for Wired Telecommunications Carriers, 
which consists of all such companies having 1,500 or fewer employees 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year. Of those 31,996, 1,818 operated with more than 100 
employees, and 30,178 operated with fewer than 100 employees. Thus, 
under this size standard, the majority of firms can be considered 
small.
    16. Local Exchange Carriers (LECs). Neither the Commission nor the 
SBA has developed a size standard for small businesses specifically 
applicable to local exchange services. The closest applicable size 
standard under SBA rules is for Wired Telecommunications Carriers. 
Under that size standard, such a business is small if it has 1,500 or 
fewer employees. According to Commission data, Census data for 2007 
shows that there were 31,996 establishments that operated that year. Of 
those 31,996, 1,818 operated with more than 100 employees, and 30,178 
operated with fewer than 100 employees. Consequently, the Commission 
estimates that most providers of local exchange service are small 
entities that may be affected by the rules and policies proposed in the 
Notice.
    17. Incumbent Local Exchange Carriers (incumbent LECs). Neither the 
Commission nor the SBA has developed a size standard for small 
businesses specifically applicable to incumbent local exchange 
services. The closest applicable size standard under SBA rules is for 
Wired Telecommunications Carriers. Under that size standard, such a 
business is small if it has 1,500 or fewer employees. According to 
Commission data, 1,307 carriers reported that they were incumbent local 
exchange service providers. Of these 1,307 carriers, an estimated 1,006 
have 1,500 or fewer employees and 301 have more than 1,500 employees. 
Consequently, the Commission estimates that most providers of incumbent 
local exchange service are small businesses that may be affected by 
rules adopted pursuant to the Notice.
    18. 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.
    19. Competitive Local Exchange Carriers (competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant

[[Page 470]]

Service Providers, and Other Local Service Providers. Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for these service providers. The appropriate size standard 
under SBA rules is for the category Wired Telecommunications Carriers. 
Under that size standard, such a business is small if it has 1,500 or 
fewer employees. According to Commission data, 1,442 carriers reported 
that they were engaged in the provision of either competitive local 
exchange services or competitive access provider services. Of these 
1,442 carriers, an estimated 1,256 have 1,500 or fewer employees and 
186 have more than 1,500 employees. In addition, 17 carriers have 
reported that they are Shared-Tenant Service Providers, and all 17 are 
estimated to have 1,500 or fewer employees. In addition, 72 carriers 
have reported that they are Other Local Service Providers. Of the 72, 
seventy have 1,500 or fewer employees and two have more than 1,500 
employees. Consequently, the Commission estimates that most providers 
of competitive local exchange service, competitive access providers, 
Shared-Tenant Service Providers, and Other Local Service Providers are 
small entities that may be affected by rules adopted pursuant to the 
Notice.
    20. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA has developed a size standard for small businesses specifically 
applicable to interexchange services. The closest applicable size 
standard under SBA rules is for Wired Telecommunications Carriers. 
Under that size standard, such a business is small if it has 1,500 or 
fewer employees. According to Commission data, 359 companies reported 
that their primary telecommunications service activity was the 
provision of interexchange services. Of these 359 companies, an 
estimated 317 have 1,500 or fewer employees and 42 have more than 1,500 
employees. Consequently, the Commission estimates that the majority of 
interexchange service providers are small entities that may be affected 
by rules adopted pursuant to the Notice.
    21. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a size standard for small businesses specifically applicable 
to Other Toll Carriers. This category includes toll carriers that do 
not fall within the categories of interexchange carriers, operator 
service providers, prepaid calling card providers, satellite service 
carriers, or toll resellers. The closest applicable size standard under 
SBA rules is for Wired Telecommunications Carriers. Under that size 
standard, such a business is small if it has 1,500 or fewer employees. 
Census data for 2007 shows that there were 31,996 establishments that 
operated that year. Of those 31,996, 1,818 operated with more than 100 
employees, and 30,178 operated with fewer than 100 employees. Thus, 
under this category and the associated small business size standard, 
the majority of Other Toll Carriers can be considered small. According 
to Commission data, 284 companies reported that their primary 
telecommunications service activity was the provision of other toll 
carriage. Of these, an estimated 279 have 1,500 or fewer employees and 
five have more than 1,500 employees. Consequently, the Commission 
estimates that most Other Toll Carriers are small entities that may be 
affected by the rules and policies adopted pursuant to the Notice.
    22. Wireless Telecommunications Carriers (except Satellite). Since 
2007, the SBA has recognized wireless firms within this new, broad, 
economic census category. Prior to that time, such firms were within 
the now-superseded categories of Paging and Cellular and Other Wireless 
Telecommunications. Under the present and prior categories, the SBA has 
deemed a wireless business to be small if it has 1,500 or fewer 
employees. For this category, census data for 2007 show that there were 
11,163 establishments that operated for the entire year. Of this total, 
10,791 establishments had employment of 999 or fewer employees and 372 
had employment of 1000 employees or more. Thus, under this category and 
the associated small business size standard, the Commission estimates 
that the majority of wireless telecommunications carriers (except 
satellite) are small entities that may be affected by our proposed 
action.
    23. Similarly, according to Commission data, 413 carriers reported 
that they were engaged in the provision of wireless telephony, 
including cellular service, Personal Communications Service (PCS), and 
Specialized Mobile Radio (SMR) Telephony services. Of these, an 
estimated 261 have 1,500 or fewer employees and 152 have more than 
1,500 employees. Consequently, the Commission estimates that 
approximately half or more of these firms can be considered small. 
Thus, using available data, we estimate that the majority of wireless 
firms can be considered small.
    24. Cable and Other Program Distribution. Since 2007, these 
services have been defined within the broad economic census category of 
Wired Telecommunications Carriers; that category is defined as follows: 
``This industry comprises establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired telecommunications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies.'' The SBA has developed a small business size standard 
for this category, which is: all such firms having 1,500 or fewer 
employees. Census data for 2007 shows that there were 31,996 
establishments that operated that year. Of those 31,996, 1,818 operated 
with more than 100 employees, and 30,178 operated with fewer than 100 
employees. Thus, under this size standard, the majority of firms 
offering cable and other program distribution services can be 
considered small and may be affected by rules adopted pursuant to the 
Notice.
    25. Cable Companies and Systems. The Commission has developed its 
own small business size standards, for the purpose of cable rate 
regulation. Under the Commission's rules, a ``small cable company'' is 
one serving 400,000 or fewer subscribers, nationwide. Industry data 
indicate that, of 1,076 cable operators nationwide, all but eleven are 
small under this size standard. In addition, under the Commission's 
rules, a ``small system'' is a cable system serving 15,000 or fewer 
subscribers. Industry data indicate that, of 6,635 systems nationwide, 
5,802 systems have under 10,000 subscribers, and an additional 302 
systems have 10,000-19,999 subscribers. Thus, under this second size 
standard, most cable systems are small and may be affected by rules 
adopted pursuant to the Notice.
    26. All Other Telecommunications. The Census Bureau defines this 
industry as including ``establishments primarily engaged in providing 
specialized telecommunications services, such as satellite tracking, 
communications telemetry, and radar station operation. This industry 
also includes establishments primarily engaged in providing satellite 
terminal stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. 
Establishments providing Internet services or Voice over Internet 
Protocol (VoIP) services via client-supplied telecommunications 
connections are also included in this industry.'' The SBA has developed 
a small business size standard for this category; that size standard is 
$30.0 million or less in average annual receipts. According to Census 
Bureau

[[Page 471]]

data for 2007, there were 2,623 firms in this category that operated 
for the entire year. Of these, 2478 establishments had annual receipts 
of under $10 million and 145 establishments had annual receipts of $10 
million or more. Consequently, we estimate that the majority of these 
firms are small entities that may be affected by our action.

I. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements

    27. The Notice proposes a number of rule changes that will affect 
reporting, recordkeeping, and other compliance requirements. Each of 
these changes is described below.
    28. The Notice proposes to require incumbent LECs to provide direct 
notification to all interconnecting carriers and affected retail 
customers of a network change involving copper retirement plus a public 
notice filed with the Commission. The Notice also proposes to require 
incumbent LECs to provide additional information about the potential 
impacts of proposed copper retirements in their notices. In addition, 
the Notice proposes to require incumbent LECs to file a certification 
with the Commission that includes the proposed network change, the 
notification to interconnecting carriers, and a copy of the written 
notice provided to affected retail customers. For other entities that 
wish to object to a proposed network change involving copper 
retirement, they may file objections to and comments on copper 
retirement notices.

J. Steps Taken To Minimize Significant Economic Impact on Small 
Entities, and Significant Alternatives Considered

    29. 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.
    30. The proposals require notifications and information regarding 
copper retirements as well as certifications. Paragraph 46 in the 
primary item discusses the need to revise the requirements of our 
network change disclosure rules to promote competition and safeguard 
against copper retirements for discriminatory and anticompetitive 
purposes. The Notice seeks comment on the proposed notification 
requirements and alternative methods of communication such as email and 
company Web sites.
    31. The proposal also seeks to require incumbent LECs to maintain 
records of customer notifications, in whatever form provided, for a 
fixed period of time. The Notice seeks comment on the proposal. It also 
seeks comment on the appropriate retention period and on whether the 
benefits of such a record retention requirement outweigh any associated 
burden on incumbent LECs. The Commission seeks the same cost/benefit 
analysis of its proposed certification requirement.

K. Federal Rules that May Duplicate, Overlap, or Conflict With the 
Proposed Rule

    32. None.

V. Ordering Clauses

    33. Accordingly, it is ordered, pursuant to the authority contained 
in sections 1-4, 201, 214, and 251 of the Communications Act of 1934, 
as amended; 47 U.S.C. 151-154, 201, 214, 251, and 157(a), and Sec.  1.1 
of the Commission's rules, 47 CFR 1.1, that the Notice of Proposed 
Rulemaking is adopted.
    34. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this NPRM, including the Initial Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Part 51

    Communications, Communications common carriers, Defense 
communications, Telecommunications, Telephone.

    Federal Communications Commission.
Marlene H. Dortch,
Secretary.
    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 51 as follows:

PART 51--INTERCONNECTION

0
1. The authority for part 51 continues to read as follows:

    Authority:  Sections 1-5, 7, 201-05, 207-09, 218, 220, 225-27, 
251-54, 256, 271, 303(r), 332, 706 of the Telecommunication Act of 
1996, 48 Stat. 1070, as amended, 1077; 47 U.S.C. 151-55, 157, 201-
05, 207-09, 218, 220, 225-27, 251-54, 256, 271, 303(r), 332, 1302, 
47 U.S.C. 157 note, unless otherwise noted.

0
2. Section 51.325 is amended by revising paragraph (a)(4), 
redesignating paragraphs (c) and (d) as (d) and (e), and adding new 
paragraphs (c) and (f), to read as follows:


Sec.  51.325  Notice of network changes: Public notice requirement.

    (a) * * *
    (4) Will result in the retirement of copper, as defined in Sec.  
51.332.
* * * * *
    (c) In addition to providing the public notice required by 
paragraph (a) of this section, the incumbent LEC shall notify and 
submit a copy of its public notice to the public utility commission and 
to the Governor of the State in which the network change is proposed, 
and also to the Secretary of Defense, Attn. Special Assistant for 
Telecommunications, Pentagon, Washington, DC 20301.
* * * * *
    (f) Notices of network changes involving the retirement of copper, 
as defined in Sec.  51.332, are subject only to the requirements set 
forth in this section and Sec. Sec.  51.329(c) and (d), 51.332 and 
51.335.
0
3. Section 51.329 is amended by redesignating paragraph (c) as 
paragraph (d) and adding new paragraph (c) to read as follows:


Sec.  51.329  Notice of network changes: Methods for providing notice; 
public comment.

* * * * *
    (c) The public may file comments on an incumbent LEC's notice of 
planned network change. In the context of copper retirement, such 
comments must be filed with the Commission no later than the twenty-
ninth day following the release of the Commission's public notice. In 
all other instances, such comments may be filed with the Commission 
until the effective date of the planned network changes.
* * * * *


Sec.  51.331  [Amended].

0
4. Section 51.331 is amended by deleting paragraph (c).
0
5. Add Sec.  51.332 to read as follows:


Sec.  51.332  Notice of network changes: Copper retirement.

    (a) Definition. For purposes of this section, copper retirement is 
defined as removal or disabling of copper loops, subloops, or the 
feeder portion of such loops or subloops, or the replacement of such 
loops with fiber-to-the-home loops or fiber-to-the-curb loops, as those 
terms are defined in Sec.  51.319(a)(3).
    (b) Methods for Providing Notice.

[[Page 472]]

    (1) In providing the required notice to the public of network 
changes, an incumbent LEC must use one of the following methods:
    (i) Filing a public notice with the Commission; or
    (ii) Providing written public notice through industry fora, 
industry publications, or the carrier's publicly accessible Internet 
site.
    (2) An incumbent LEC must provide each information service provider 
and telephone exchange service provider that directly interconnects 
with the incumbent LEC's network with a copy of the public notice.
    (3) An incumbent LEC also must directly provide notice through 
electronic mail or postal mail to all retail customers affected by the 
planned copper retirement.
    (i) For purpose of this section, an affected retail customer is 
anyone who will need new or modified customer premise equipment or who 
will be negatively impacted by the planned network change. The contents 
of any such notification must comply with the requirements of paragraph 
(c) of this section.
    (ii) Notice to each affected retail customer shall be in writing 
unless the Commission authorizes in advance, for good cause shown, 
another form of notice. If an incumbent LEC uses email to provide 
notice to retail customers, it must comply with the following 
requirements in addition to the requirements generally applicable to 
notification:
    (A) an incumbent LEC must obtain express, verifiable, prior 
approval from retail customers to send notices via email regarding 
their service in general, or planned network changes in particular;
    (B) An incumbent LEC must allow customers to reply directly to the 
email notice;
    (C) Email notices that are returned to the carrier as undeliverable 
must be sent to the retail customer in another form before carriers may 
consider the retail customer to have received notice; and
    (D) an incumbent LEC must ensure that the subject line of the 
message clearly and accurately identifies the subject matter of the 
email.
    (c) Content of Notice.
    (1) Public Notice. Public notice must set forth the information 
required by Sec.  51.327. In addition, the public notice must include a 
description of any changes in prices, terms, or conditions that will 
accompany the planned changes.
    (2) Retail Customers. Notification to retail customers must provide 
sufficient information to enable the retail customer to make an 
informed decision as to whether to continue subscribing to the service 
to be affected by the planned network changes, including but not 
limited to the following:
    (i) The information required by Sec.  51.327;
    (ii) A statement that the retail customer will still be able to 
purchase the existing service(s) to which he or she subscribes with the 
same functionalities and features as the service he or she currently 
purchases from the incumbent LEC, except that if this statement would 
be inaccurate, the incumbent LEC must include a statement identifying 
any changes to the service(s) and the functionality and features 
thereof;
    (iii) A statement that the retail customer has the right to comment 
on the planned network changes; and
    (iv) The following statement: ``This notice of planned network 
change will become effective ninety days after the Federal 
Communications Commission (FCC) releases a public notice of the planned 
change on its Web site. If you wish to comment on the planned network 
change, you should file your comments as soon as possible, but no later 
than thirty calendar days after the FCC releases public notice of the 
planned network change. You may file your comments electronically on 
the Commission's Web site at [insert URL for ECFS], or you may file 
them by mail. If you wish to file by mail, address your comments to the 
Federal Communications Commission, Wireline Competition Bureau, 
Competition Policy Division, Washington, DC 20554, and include in your 
comments the statement `Network Change' and a reference to [insert name 
of ILEC and affected geographic region]. Comments should include 
specific information about the impact of this planned network change 
upon you, including any potential loss of functionalities or 
interference with third-party devices or services.''
    (3) If any portion of a notification is translated into another 
language, then all portions of the notification must be translated into 
that language.
    (4) An incumbent LEC may not include in the notification or any 
other communication to a customer related to copper retirement any 
statement attempting to encourage a customer to purchase a service 
other than the service to which the customer currently subscribes.
    (d) Certification. An incumbent LEC must file a certification with 
the Commission that shall include:
    (1) A statement that identifies the proposed changes;
    (2) A statement that public notice has been given in compliance 
with paragraph (b)(1);
    (3) If an incumbent LEC provides public notice by any of the 
methods specified in paragraph (b)(1)(ii) of this section, a statement 
identifying the location of the change information and describing how 
this information can be obtained.
    (4) A statement that, at least five business days in advance of its 
filing with the Commission, the incumbent LEC served a copy of its 
public notice upon each information service provider and 
telecommunications service provider that directly interconnects with 
the incumbent LEC's network;
    (5) The name and address of each such information service provider 
and telecommunications service provider upon which written notification 
was served;
    (6) A statement that, at least five business days in advance of its 
filing with the Commission, the incumbent LEC served the direct notice 
required by paragraph (c)(3) of this section upon all affected retail 
customers;
    (7) A copy of the written notice provided to affected retail 
customers; and
    (8) A statement that the incumbent LEC notified and submitted a 
copy of its public notice to the public utility commission and to the 
Governor of the State in which the network change is proposed, and also 
to the Secretary of Defense in compliance with Sec.  51.325(c).
    (e) Timing of Notice. An incumbent LEC must provide public notice 
of copper retirement at least ninety days before implementation 
pursuant to the procedures provided in paragraph (b) of this section.
    (f) Implementation Date. The Commission will release a public 
notice of filings of such notices of copper retirement. The public 
notice will set forth the docket number and NCD number assigned by the 
Commission to the incumbent LEC's notice. Notices of copper retirement 
shall be deemed approved on the 90th day after the release of the 
Commission's public notice of the filing, unless an objection is filed 
pursuant to paragraph (h) of this section or the Commission takes 
action pursuant to paragraph (l) of this section.
    (g) Interconnecting LEC Objection Procedures. An objection to an 
incumbent LEC's notice that it intends to retire copper may be filed by 
an information service provider or telecommunications service provider 
that directly interconnects with the incumbent LEC's network. Such 
objections must be filed with the Commission, and served on the

[[Page 473]]

incumbent LEC, no later than the twenty-ninth day following the release 
of the Commission's public notice. All objections filed under this 
section must:
    (1) State specific reasons why the objector cannot accommodate the 
incumbent LEC's changes by the date stated in the incumbent LEC's 
public notice and must indicate any specific technical information or 
other assistance required that would enable the objector to accommodate 
those changes;
    (2) List steps the objector is taking to accommodate the incumbent 
LEC's changes on an expedited basis;
    (3) State the earliest possible date (not to exceed six months from 
the date the incumbent LEC gave its original public notice under this 
section) by which the objector anticipates that it can accommodate the 
incumbent LEC's changes, assuming it receives the technical information 
or other assistance requested under paragraph (h) of this section;
    (4) Provide any other information relevant to the objection; and
    (5) Provide the following affidavit, executed by the objector's 
president, chief executive officer, or other corporate officer or 
official, who has appropriate authority to bind the corporation, and 
knowledge of the details of the objector's inability to adjust its 
network on a timely basis:

    ``I, (name and title), under oath and subject to penalty for 
perjury, certify that I have read this objection, that the statements 
contained in it are true, that there is good ground to support the 
objection, and that it is not interposed for purposes of delay. I have 
appropriate authority to make this certification on behalf of 
(objector) and I agree to provide any information the Commission may 
request to allow the Commission to evaluate the truthfulness and 
validity of the statements contained in this objection.''

    (h) Responses to Objections. If an objection is filed, an incumbent 
LEC shall have until no later than the sixtieth business day following 
the release of the Commission's public notice to file with the 
Commission a response to the objection and to serve the response on all 
parties that filed objections. An incumbent LEC's response must:
    (1) Provide information responsive to the allegations and concerns 
identified by the objectors;
    (2) State whether any implementation date(s) proposed by the 
objector(s) are acceptable;
    (3) Indicate any specific technical assistance that the incumbent 
LEC is willing to give to the objectors; and
    (4) Provide any other relevant information.
    (i) Resolution of Objections to Timing. If an objection based on 
timing is filed pursuant to paragraph (h) of this section, then the 
Chief, Wireline Competition Bureau, will issue an order determining a 
reasonable public notice period, provided however, that if an incumbent 
LEC does not file a response within the time period allotted, or if the 
incumbent LEC's response accepts the latest implementation date stated 
by an objector, then the incumbent LEC's public notice shall be deemed 
amended to specify the implementation date requested by the objector, 
without further Commission action. An incumbent LEC must amend its 
public notice to reflect any change in the applicable implementation 
date pursuant to paragraph (b) of this section.
0
6. Section 51.333 is amended by revising the section heading and 
paragraphs (b) and (c) to read as follows and removing paragraph (f).


Sec.  51.333  Notice of network changes: Short term notice, objections 
thereto.

* * * * *
    (b) Implementation date. The Commission will release a public 
notice of filings of such short term notices. The public notice will 
set forth the docket number assigned by the Commission to the incumbent 
LEC's notice. The effective date of the network changes referenced in 
those filings shall be deemed final on the tenth business day after the 
release of the Commission's public notice, unless an objection is filed 
pursuant to paragraph (c) of this section.
    (c) Objection procedures for short term notice. An objection to an 
incumbent LEC's short term notice may be filed by an information 
service provider or telecommunications service provider that directly 
interconnects with the incumbent LEC's network. Such objections must be 
filed with the Commission, and served on the incumbent LEC, no later 
than the ninth business day following the release of the Commission's 
public notice. All objections filed under this section must:
    (1) State specific reasons why the objector cannot accommodate the 
incumbent LEC's changes by the date stated in the incumbent LEC's 
public notice and must indicate any specific technical information or 
other assistance required that would enable the objector to accommodate 
those changes;
    (2) List steps the objector is taking to accommodate the incumbent 
LEC's changes on an expedited basis;
    (3) State the earliest possible date (not to exceed six months from 
the date the incumbent LEC gave its original public notice under this 
section) by which the objector anticipates that it can accommodate the 
incumbent LEC's changes, assuming it receives the technical information 
or other assistance requested under paragraph (c)(1) of this section;
    (4) Provide any other information relevant to the objection; and
    (5) Provide the following affidavit, executed by the objector's 
president, chief executive officer, or other corporate officer or 
official, who has appropriate authority to bind the corporation, and 
knowledge of the details of the objector's inability to adjust its 
network on a timely basis:

    ``I, (name and title), under oath and subject to penalty for 
perjury, certify that I have read this objection, that the statements 
contained in it are true, that there is good ground to support the 
objection, and that it is not interposed for purposes of delay. I have 
appropriate authority to make this certification on behalf of 
(objector) and I agree to provide any information the Commission may 
request to allow the Commission to evaluate the truthfulness and 
validity of the statements contained in this objection.''
* * * * *
[FR Doc. 2014-30776 Filed 1-5-15; 8:45 am]
BILLING CODE 6712-01-P