[Federal Register Volume 85, Number 3 (Monday, January 6, 2020)]
[Proposed Rules]
[Pages 472-487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-27607]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 51

[WC Docket No. 19-308; FCC 19-119; FRS 16321]


Modernizing Unbundling and Resale Requirements in an Era of Next-
Generation Networks and Services

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission seeks 
comment on a number of proposals to modernize unbundling and resale 
obligations applicable to incumbent local exchange carriers (incumbent 
LECs) for local loops, dark fiber transport, and other types of network 
elements. The Commission also seeks comment on costs associated with 
specific unbundled network elements and resold services and on a 
transition period for all unbundling and resale relief that may be 
provided.

DATES: Comments are due on or February 5, 2020, and reply comments are 
due on or before March 6, 2020.

ADDRESSES: You may submit comments, identified by WC Docket No. 19-308, 
by any of the following methods:
     Federal Communications Commission's website: https://www.fcc.gov/ecfs/. Follow the instructions for submitting comments.
     Mail: Parties who choose to file by paper must file an 
original and one copy of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number. Filings can be sent by hand or messenger delivery, 
by commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail. 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 
9050 Junction Drive, Annapolis Junction, MD 20701. 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).
    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, 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) in WC Docket No. 19-308, adopted on 
November 22, 2019 and released on November 25, 2019. The full text of 
the document is available at https://docs.fcc.gov/public/attachments/FCC-19-119A1.pdf. The full text is also 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. To 
request materials in accessible formats for people with disabilities 
(e.g., braille, large print, electronic files, audio format, etc.) or 
to request reasonable accommodations (e.g., accessible format 
documents, sign language interpreters, CART, etc.), send an email to 
[email protected] or call the Consumer & Governmental Affairs Bureau at 
(202) 418-0530 (voice) or (202) 418-0432 (TTY).

Synopsis

I. Notice of Proposed Rulemaking

    1. In this Notice of Proposed Rulemaking (NPRM), we propose to 
modernize our unbundling rules for local loops, dark fiber transport, 
and other types of network elements to reflect the vastly changed 
communications environment since the Commission last examined 
unbundling obligations through the impairment lens. These legacy 
obligations appear to no longer make any sense in many geographic areas 
due to vigorous competition for business data services, mass market 
broadband services, and numerous intermodal voice capabilities and 
services. In practice, these obligations appear to both discourage the 
deployment of next-generation

[[Page 473]]

networks and unnecessarily burden incumbent LECs.

A. Modernizing Unbundling Obligations for Today's Communications 
Marketplace

    2. Recognizing that the ``purpose of the Act is not to provide the 
widest possible unbundling,'' but ``to stimulate competition--
preferably genuine, facilities-based competition,'' we seek comment on 
how best to modernize incumbent LECs' remaining unbundling obligations. 
While UNEs in some circumstances have provided a path for competitors 
to enter markets they might not otherwise be able to have economically 
justified entering, the Commission has long recognized that ``excessive 
network unbundling requirements tend to undermine the incentives of 
both incumbent LECs and new entrants to invest in new facilities and 
deploy new technology.'' Therefore, the Commission has never viewed the 
UNE obligations as being of infinite, or even indefinite, duration, 
particularly in light of Congress's inclusion in the 1996 Act of the 
means for the Commission to analyze the continued necessity of those 
requirements. Indeed, Congress specifically contemplated a future time 
when the continued need for section 251(c) unbundling obligations may 
be reevaluated. Today's marketplace is characterized by robust 
intermodal competition for voice and broadband services that may render 
many remaining unbundling obligations unnecessary or even actively 
harmful by impeding the deployment of and transition to more 
technologically advanced networks and services. Our proposals in this 
NPRM are informed by recent evidence demonstrating the availability of 
intermodal competition, as well as specific Commission findings based 
on comprehensive industry data that certain last mile loop and 
transport unbundling obligations are no longer necessary. We 
acknowledge, however, that there remains a digital divide between urban 
areas, which boast increasing numbers of intermodal broadband 
providers, and rural areas. Because UNEs may have continued benefits in 
providing broadband access to Americans in rural areas--where achieving 
scale is harder and thus competitive entry is harder--we propose to 
maintain existing unbundling of mass market broadband-capable loops in 
rural areas.
1. UNE Loops
    3. Loops generally provide ``the last mile of a carrier's network 
that enables the end-user to originate and receive communications.'' 
Incumbent LECs are required to provide unbundled access to three 
general types of loop facilities: (1) DS1 and DS3 loops, (2) DS0 loops, 
and (3) the TDM-capabilities, features, and functionalities of hybrid 
copper/fiber loops. Incumbent LECs are also required to provide 
unbundled access to 64 kbps voice-grade channels over fiber loops to 
existing customers. Incumbent LECs must also provide unbundled access 
to UNE Analog Loops in non-price cap incumbent LEC service areas. In 
adopting loop unbundling requirements, the Commission clarified that 
all loop types may be used ``across a range of customer categories'' 
and that the UNE requirements apply equally to all classes served. At 
the same time, the Commission observed that the different types of loop 
facilities ``as a practical matter, typically serve distinct classes of 
customers, resulting in different economic considerations for 
competitive carriers seeking to self-deploy.'' We factor these 
observations and considerations, along with the ``reasonably efficient 
competitor'' aspect of the impairment standard, into our proposals 
below.
a. UNE DS1 and DS3 Loops
    4. The Commission's rules require incumbent LECs to unbundle DS1 
and DS3 loops, which are last-mile transmission facilities operating at 
a total digital signal speed of 1.544 Mbps and 44.736 Mbps, 
respectively. These loops, which are used primarily to serve enterprise 
customers, are not available as UNEs in all locations. Rather, the 
Commission limited the availability of UNE DS1 and DS3 Loops based on 
``both a minimum number of business lines served by a wire center and 
the presence of a minimum number of fiber-based collocators,'' noting 
that ``[a] high concentration of business lines generally indicates a 
likely concentration of large, multi-story commercial buildings,'' 
which a reasonably efficient competitor could serve by building its own 
fiber-based facilities. Under our rules, the relevant thresholds for 
unbundling differ as to DS1 loops and DS3 loops. UNE DS1 Loops are only 
available ``to any building not served by a wire center with at least 
60,000 business lines and at least four fiber-based collocators.'' UNE 
DS3 Loops are only available ``to any building not served by a wire 
center with at least 38,000 business lines and at least four fiber-
based collocators.'' The Commission also capped the availability of 
unbundled DS1 and DS3 loops in a single building, recognizing that at 
certain thresholds of total bandwidth demanded at a particular 
location, it was feasible for competitive providers to self-provision 
and thus no impairment existed.
    5. We propose to find no impairment with respect to UNE DS1 and DS3 
Loops in (1) counties served by price cap incumbent LECs found to be 
competitive pursuant to the BDS Order; and (2) the study areas deemed 
competitive as a result of our decision to allow certain rate-of-return 
incumbent LECs to elect incentive regulation for their business data 
services, subject to a narrow residential carve-out described below. We 
do not include the ``Counties Deemed Grandfathered'' within our 
category of BDS competitive counties. We refer collectively herein to 
the BDS competitive counties and the competitive rate-of-return carrier 
study areas as the BDS Competitive Counties and Study Areas. We seek 
comment on this proposal.
    6. Our proposal is based on the competitive findings in the BDS 
Order and the RoR BDS Order. In the BDS Order, based on the most 
extensive data collection that the Commission has ever undertaken, the 
Commission concluded that ``[t]o a large extent in the business data 
services market, the competition envisioned in the [1996 Act] has been 
realized.'' It explained that incumbent LECs ``once dominated'' the 
market by selling TDM-based DS1s and DS3s, but those services were 
being eclipsed by packet-based services sold by incumbent LECs, 
competitive LECs, cable providers, and other intermodal competitors. 
The Commission developed a competitive market test for price cap 
incumbent LECs' DS1 and DS3 services ``with the goal of promoting 
innovation and investment and recognizing recent trends and 
developments in the BDS marketplace'' and ``to determine which local 
markets are sufficiently competitive to warrant deregulation.'' The 
competitive market test deemed a price cap county competitive if either 
(1) 50% of the buildings in the county with BDS demand were within a 
half mile of a location served by competitive fiber, a distance at 
which the Commission found competitive providers actively competed for 
customers; or (2) 75% of census blocks within the county were served by 
cable with a minimum offering of 10/1 Mbps, suggesting that the cable 
provider had deployed sufficient capacity in its network to provide 
business data services. The Commission found that 91.1% of locations 
with business data services demand in price cap areas were deemed to be 
sufficiently competitive to eliminate ex ante pricing regulation for 
those services. It thus deemed 60% of

[[Page 474]]

price cap counties competitive for purposes of DS1 and DS3 channel 
terminations and found the remaining 40% (largely in more rural areas) 
non-competitive. The Commission subsequently adopted a similar 
competitive market test for rate-of-return incumbent LECs that have 
elected incentive regulation based on rate-of-return incumbent LEC 
study areas. This test, based on the second prong of the BDS Order's 
competitive market test, eliminated ex ante pricing regulation for DS1 
and DS3 services in 16 rate-of-return study areas where cable providers 
offered 10/1 Mbps or higher speeds to at least 75% of census blocks. 
The Eighth Circuit affirmed the Commission's use of the competitive 
market test in the BDS Order, including the test's reliance on the 
competitive fiber facilities within a half mile and finding that cable 
services are ``increasingly functioning as substitutes for BDS.''
    7. We believe the BDS Order's findings eliminating ex ante pricing 
regulation of DS1 and DS3 business data services are applicable to the 
unbundling context. If we eliminate these specific UNEs in the BDS 
Competitive Counties and Study Areas, DS1 and DS3 services will remain 
available for purchase on a commercial basis as business data services. 
We understand that there are no material operational or performance 
distinctions between UNE DS1 and DS3 Loops and DS1 and DS3 business 
data services. The Commission has previously found that these two types 
of services are ``particularly close substitutes'' and thus are a part 
of the same competitive environment. Do commenters agree? Is there any 
meaningful difference between UNE DS1 and DS3 Loops and BDS DS1 and DS3 
end user channel terminations or their terms of service, other than 
pricing? Even if there is such a difference, does unbundled access to 
UNE DS1 and DS3 Loops remain necessary in BDS Competitive Counties or 
Study Areas in the current communications marketplace with its 
extensive and increasing intermodal competition? In light of the 
increasing demand for higher-bandwidth and packet-based data services 
and the corresponding declining demand for DS1 and DS3 services, do DS1 
and DS3 loops constitute reasonably efficient technology such that a 
reasonably efficient competitor would rely on them to compete for BDS 
customers?
    8. Our proposal to find no impairment for DS1 and DS3 loops in BDS 
Competitive Counties and Study Areas is also based on our findings 
about the availability of competitive fiber in the BDS Remand Order. In 
that Order, we calculated that within BDS Competitive Counties, more 
than 94% of locations with BDS demand were served by incumbent LEC wire 
centers within a half mile of competitive fiber, and more than 97% of 
locations with BDS demand were either themselves within a half mile of 
competitive fiber or served by an incumbent LEC wire center within a 
half mile of competitive fiber. We reasoned that the data used in 
making those findings likely understated competition given that ``cable 
companies and other competitors frequently bypass ILEC networks 
entirely.'' Moreover, the data underlying our analysis was collected in 
2013, and ``competitive fiber providers have continued to build new 
fiber routes in part to compete with incumbent LECs' BDS offerings.'' 
We thus propose to infer that the small fraction of enterprise 
locations not within a half mile of competitive fiber or served by an 
incumbent LEC wire center within a half mile of competitive fiber, 
i.e., less than 3% of all enterprise locations in price cap incumbent 
LEC counties, would face the same non-impairment conditions for 
competitive providers. We seek comment on this reasoning.
    9. In the BDS Order, the Commission found that the most appropriate 
geographic measure at which to determine the competitiveness of DS1 and 
DS3 end-user channel terminations was the county level, and we propose 
to use that same approach here. Do commenters agree? Is there any 
reason to base our analysis on a more granular geographic unit, e.g., 
based on wire centers served by competitive fiber, or some other 
geographic area, rather than on counties? For example, should we find 
that UNE DS1 and DS3 Loops should remain available in portions of BDS 
Competitive Counties served by incumbent LEC wire centers more than a 
half mile from competitive fiber? Are there different considerations 
for UNE DS1 and DS3 Loops compared to business data services that would 
warrant some type of exemption?
    10. Proposed Exemption for Residential Broadband in Rural Areas. We 
propose to narrowly exempt the availability of UNE DS1 Loops from any 
unbundling relief such that UNE DS1 Loops will remain available for 
residential broadband service along with telecommunications service in 
rural census blocks. Although UNE DS1 and DS3 Loops are used largely to 
serve enterprise customers, there is evidence in the record that some 
competitive LECs use UNE DS1 Loops to provision broadband to 
residential customers for whom no other broadband service is available 
and the distance is too great to provision such service using DS0s. The 
findings regarding DS1s and DS3s for the enterprise market may not 
translate cleanly to the rural, residential market. We seek comment on 
this view.
    11. We believe this exemption would have benefits in maintaining 
access to mass market broadband in rural areas that outweigh any 
disincentives to next-generation network deployments by either 
incumbent or competitive LECs and seek comment on that view. We seek 
comment on the administrability of this proposed exemption. We believe 
that incumbent LECs should be able to readily accommodate this proposed 
exemption to our proposed finding of no impairment for enterprise use 
in BDS Competitive Counties and Study Areas. Do commenters agree?
    12. If we do carve out an exemption related to residential use, 
should that exemption be limited to UNE DS1 Loops? We understand that 
DS3 loops are not generally used for residential consumers. Are there 
ever instances where UNE DS3 Loops are used to provide residential 
broadband services? If so, should a similar exemption be provided to 
serve mass market residential customers in rural census blocks within 
BDS Competitive Counties and Study Areas where UNE DS3 loops are no 
longer available for enterprise use?
    13. Alternatives. As an alternative to our proposal to find non-
impairment for DS1 and DS3 loops in BDS Competitive Counties and Study 
Areas, should we instead provide relief from unbundling requirements 
for DS1 and DS3 loops based on a forbearance analysis? Specifically, 
should we forbear from the unbundling requirements for DS1 and DS3 
loops in the BDS Competitive Counties and Study Areas? We seek comment 
on this alternative proposal and whether the three prongs of the 
forbearance test would be satisfied. We believe the forbearance 
criteria are met for the same service areas where we propose to find 
non-impairment based on the same competitive findings and public 
interest determinations made in the BDS Order and the RoR BDS Order. Do 
commenters agree?
    14. Or should we instead find that the market for UNE DS1 and DS3 
Loops in the BDS Competitive Counties and Study Areas is ``sufficiently 
competitive without the use of unbundling?'' The Commission in the 
Triennial Review Remand Order made such a finding as to the long 
distance and mobile wireless markets and thus declined to require that 
UNEs be made available for the exclusive provision of these services. 
Do the competitive findings in the BDS

[[Page 475]]

Order and the RoR BDS Order with respect to BDS services rise to the 
same level as the Commission's findings in the Triennial Review Remand 
Order as to the long distance and mobile wireless service markets? If 
so, are they sufficient to conclude that incumbent LECs should no 
longer be required to make DS1 and DS3 loops available on an unbundled 
basis in BDS Competitive Counties and Study Areas?
b. UNE DS0 Loops
    15. The Commission's rules require incumbent LECs to make UNE DS0 
Loops available nationwide. These broadband-capable loops are used 
primarily to serve mass market residential customers, in contrast to 
UNE DS1 and DS3 Loops. UNE DS0 Loops are typically used to provide both 
voice and broadband internet access service using various xDSL 
technologies. We also note that some competitive LECs use DS0s to 
provide Ethernet-over-copper and other higher-speed DSL service using 
bonded DS0s to certain business customers. Where UNE DS0 Loops remain 
available, competitive LECs may continue to use these loops for that 
purpose.
    16. We propose to find that competitive LECs are no longer impaired 
without access to UNE DS0 Loops in urban census blocks. We base our 
proposal on the relatively low and falling barriers to entry that 
competitive providers face in providing broadband in urban areas, 
particularly using alternative technologies. We may rely on the 
availability of broadband in any forbearance or impairment analysis, 
consistent with Congress's mandate in section 706 that we ``encourage 
the deployment on a reasonable and timely basis of advanced 
telecommunications capability to all Americans.'' While our rules 
require competitive LECs to use UNEs to provision telecommunications 
services, once they do so, they may use those same UNEs to provision 
information services, i.e., broadband. By the same token, because 
facilities-based broadband can be used to provide the same residential 
services that can be provided with UNEs today, we rely on entry into, 
and current competition within, the broadband marketplace in 
considering whether impairment persists as to UNE DS0 Loops. Because 
facilities-based broadband service provides residential consumers 
similar (and typically more advanced) voice and internet access 
capabilities to those that can be provided with UNE DS0 Loops, we rely 
on evidence of entry into, and current competition within, the 
broadband marketplace in considering whether impairment persists as to 
UNE DS0 Loops in urban census blocks. Do commenters agree with this 
approach? We recognize that rural areas present different deployment 
considerations than urban areas and thus do not propose to include 
rural census blocks in our proposed non-impairment finding.
    17. Our proposal to find that competitive LECs are no longer 
impaired in urban census blocks without access to UNE DS0 Loops relies 
on the presence of nearly ubiquitous cable deployment in urban areas. 
Cable providers make available facilities-based 25/3 Mbps internet 
access service, which meets the Commission's definition of advanced 
telecommunications capability, without the use of UNEs to 97% of 
households in urban census blocks. Furthermore, 74% of households in 
urban census blocks have at least two 25/3 Mbps providers, and 87% of 
households in urban census blocks have at least two 10/1 Mbps 
providers, generally the cable provider and the incumbent LEC, all 
without the use of UNEs. These figures exclude satellite providers and 
competitive LECs providing copper-based services. We assume any non-
incumbent LEC provider offering copper-based services uses UNEs. We 
infer from this data that as cable continues to vigorously compete with 
other wireline ISPs, cable providers will build out to the remaining 
urban census blocks in the near future and similarly, competing 
facilities-based wireline providers will upgrade their networks to 
better compete with cable. We seek comment on this analysis.
    18. Our proposal also relies on recent evidence demonstrating that 
increasing numbers of competitors using wireless technologies are 
entering the residential market for broadband services in urban areas 
without the use of UNEs. For example, Verizon has announced plans to 
deploy 5G-based fixed wireless service in 30 geographic markets, mostly 
outside its incumbent LEC territory, Starry is deploying fixed wireless 
service in major urban centers, and other WISPs are specifically 
targeting urban customers as well. AT&T's CEO recently told investors 
that over the next three to five years, ``unequivocally 5G will serve 
as a . . . fixed broadband replacement product.'' These developments 
are consistent with the observations in the 2018 Communications 
Marketplace Report, where the Commission noted that advancements in 
fixed wireless service technology will produce speeds that will 
ultimately rival what can be offered by fiber. Indeed, even certain 
parties opposing USTelecom's recent request for forbearance noted that 
5G ``is ideally suited for urban areas with high building density.'' 
Relatedly, the Commission has long recognized that the costs for new 
deployment are significantly lower in urban areas. Indeed, one of the 
key assumptions of the Commission's Connect America Fund model, which 
determines how scarce universal service funds are allocated for high-
cost areas, is that broadband deployment costs less in urban areas than 
in rural areas. The Commission has also acted to lower barriers to 
entry and thereby spur further intermodal competition by opening 
additional spectrum for licensed and unlicensed uses, streamlining the 
process of small cell siting, and modernizing pole attachment rules to 
reduce the cost and time it takes to string fiber on poles. We propose 
to find on the basis of these factors taken together that entry 
barriers have been reduced and, in many areas, eliminated so 
significantly that a reasonably efficient competitor is no longer 
impaired without access to UNE DS0 Loops in urban census blocks and 
that unbundling of DS0 loops in such areas is no longer warranted. We 
seek comment on this proposal. Do commenters agree that the increasing 
wireless broadband deployment and entry in urban areas constitute 
evidence that a reasonably efficient competitor using reasonably 
efficient technologies is not impaired without access to these UNEs?
    19. In these urban areas where advanced services are available to 
consumers from providers that do not rely on UNE DS0 Loops, we believe 
a continued DS0 unbundling requirement will artificially and 
unnecessarily slow the consumer transition away from services provided 
over legacy copper loops to more advanced networks and services. We 
therefore believe that eliminating DS0 unbundling in urban areas would 
better advance the 1996 Act's goal of broadband deployment. 
Furthermore, new entrants using fixed wireless and other technologies 
may specifically target the relatively few urban areas with only one 
25/3 Mbps provider as offering the most economically-feasible case for 
entry, because of the density and relative lack of competition in these 
areas, particularly if UNE DS0 Loops are no longer available. We seek 
comment on these views.
    20. We believe basing a finding of non-impairment at the urban 
census block level would be administratively workable to implement as 
both incumbent and competitive LECs are familiar with census block 
metrics as a

[[Page 476]]

result of the Commission's Form 477 broadband deployment reporting 
obligations, and urban versus rural census blocks are identifiable 
based on the Census Bureau's publicly available designations. Do 
commenters agree? If basing a non-impairment finding on census blocks 
would raise administrative difficulties, how might we ease or address 
them? Urban census blocks may be located either in urbanized areas or 
urban clusters.
    21. In proposing relief for UNE DS0 Loops, we do not propose to 
distinguish between residential and enterprise services. We note that 
within price cap counties that have been deemed competitive by the BDS 
Order for business data services, including DS1 services, 95% of census 
blocks with business demand had at least one competitive provider. 
Based on the present record, we do not foresee a need that would 
justify different treatment for UNE DS0 Loops based on their use. We 
seek comment on this view.
    22. Competitive LECs stated that they use broadband-capable UNE DS0 
Loops to create new services not provided by incumbent LECs by bonding 
multiple loops and/or placing their own electronics on them to provide 
high-speed broadband and voice service to their customers. Competitive 
LECs also commented that they use these loops as bridges to deployment 
of next-generation networks, and asserted that no meaningful 
alternatives for consumers exist for these loops. Incumbent LECs 
asserted that they are developing or have already developed broadband 
alternatives that may not have existed when the competitive LEC first 
entered those areas. We seek comment on these competing assertions. Are 
there urban census blocks where incumbent LECs currently only provide 
legacy, or no, DSL service and where a competitive LEC supplies high-
speed broadband over UNE DS0 Loops? If so, where? And would granting 
relief promote or deter additional investment in high-speed facilities 
in such areas?
    23. Some competitive LECs have contended that customer preference 
for TDM-based and line-powered services supports maintaining unbundling 
requirements, while incumbent LECs have argued that such preferences 
are irrelevant to an analysis of whether to forbear from the UNE 
regime. We concluded for purposes of our forbearance analysis in the 
UNE Analog Loop and Avoided-Cost Resale Forbearance Order that ``we [ ] 
are not persuaded that the Commission must `protect' every preference 
some customers might have, especially in the face of alternative 
options for obtaining voice services.'' Do different considerations 
apply here? Should an impairment analysis consider the extent to which 
our unbundling requirements may artificially protect users of legacy 
technologies from market forces that would otherwise provide price 
signals encouraging the transition to next-generation technologies?
    24. Does evidence that incumbent LECs offered UNE-platform (UNE-P) 
replacement products when the UNE-P obligation was eliminated support 
incumbent LEC suggestions that they intend to offer UNE DS0 Loop 
replacement products on a commercially negotiated basis? How, if at 
all, should such a possibility factor into an impairment or forbearance 
analysis?
    25. Our current copper retirement rules permit incumbent LECs to 
obtain relief from the unbundling requirements for DS0 loops by 
deploying fiber or other next-generation networks and then retiring 
their copper facilities pursuant to our network change disclosure 
rules. Incumbent LECs may retire their copper facilities without the 
need to seek our authorization. We seek comment on whether the 
availability of this option has any bearing on the need for unbundling 
relief. What impact, if any, does an incumbent LEC's ability to achieve 
relief equivalent to forbearance have on competitive LEC incentives to 
deploy their own facilities as expeditiously as possible? If an 
incumbent LEC continues to maintain its copper facilities even after it 
has deployed last-mile fiber, should those copper facilities remain 
available to competitors via unbundling for the types of services 
customers nevertheless continue to demand?
    26. In forbearing from the UNE Analog Loop obligation, we noted 
``the disincentive that continued unbundling mandates create for 
competitors to invest in their own facilities-based networks and 
transition their customers to next-generation services.'' Is there any 
reason to believe that different considerations apply with respect to 
UNE DS0 Loops? Does the economic cost of maintaining a DS0 unbundling 
requirement outweigh any benefit of allowing customers to continue 
relying on legacy services?
    27. Alternatives. As an alternative to finding no impairment for 
DS0 loops in urban census blocks, should we forbear from DS0 loop 
unbundling requirements in urban census blocks with a minimum of 25/3 
Mbps fixed service provided by at least two facilities-based, 
terrestrial providers without the use of UNEs? We seek comment on this 
alternative and the three prongs of the forbearance test. Is the 
Commission's conclusion in the Restoring Internet Freedom Order that 
the presence of two wireline internet service providers ``can be 
expected to produce more efficient outcomes than any regulated 
alternative'' relevant to our consideration in this context? If we were 
to use this alternative test, would a census block-by-census block 
forbearance decision be administrable from the standpoint of the 
Commission and affected LECs? Or should we aggregate up our analysis to 
a larger unit of measurement, such as counties?
    28. For purposes of such a test, we would expect to include fixed 
wireless providers, but note that fixed wireless penetration rates are 
low in our most recent publicly available Form 477 data. Nonetheless, 
recent developments in fixed wireless services have lowered the 
barriers to entry by fixed wireless providers, and provided them with 
the means of bringing effective competition to urban areas. We seek 
comment on this analysis. Does the presence of fixed wireless providers 
in a census block mean that barriers to entry are low (suggesting no 
impairment of entry) or that competition is thriving (suggesting 
forbearance is appropriate)?
    29. In the UNE Analog Loop and Avoided-Cost Resale Forbearance 
Order, we concluded that ``price cap LEC UNE Analog Loop obligations 
are unnecessary to ensure that the charges for voice services are just 
and reasonable.'' Do different considerations apply for UNE DS0 Loops 
given their use for provisioning broadband service in addition to voice 
service?
c. UNE Narrowband Voice-Grade Loops
    30. Under our rules, incumbent LECs must provide three specific 
types of unbundled narrowband voice-grade loops: UNE Analog Loops, 64 
kbps voice-grade channels over last-mile fiber loops when an incumbent 
LEC retires copper, and the TDM capabilities of hybrid loops. The 
Commission forbore from new 64 kbps unbundling obligations in 2015 but 
grandfathered existing users. Voice-grade loops are used almost 
exclusively for the provision of voice-grade service, which we have 
found customers are migrating away from in favor of IP- and wireless-
based voice services provided by multiple intermodal providers. These 
include facilities-based fixed voice providers such as cable companies 
providing VoIP, mobile wireless facilities-based providers and 
resellers, and VoIP providers offering over-the-top services via 
broadband.
    31. We propose to eliminate these unbundling obligations nationwide 
as competitors do not face significant

[[Page 477]]

barriers to entering the voice-service marketplace. Indeed, incumbent 
LECs provided only about 12% of voice subscriptions in 2017. As we have 
previously found, rather than a foothold for new entrants into the 
marketplace, these legacy regulatory obligations have become a vice, 
``trapping incumbent LECs into preserving outdated technologies and 
services at the cost of a slower transition to next-generation networks 
and services that benefit American consumers and businesses.'' We seek 
comment on our specific proposals for each of the three types of 
narrowband voice-grade copper loops described below.
    32. In the alternative, should we instead find simply that the 
marketplace for voice-grade loops is ``sufficiently competitive without 
the use of unbundling'' as the Commission previously did for long-
distance and mobile services? The Commission declined to require that 
UNEs be made available for the exclusive provision of long distance and 
mobile wireless services based upon a finding that the marketplace for 
those services was competitive without reliance on UNEs. Does the 
degree of intermodal competition in today's voice marketplace support 
finding that incumbent LECs should no longer be required to make UNEs 
available for the exclusive provision of voice services?
    33. UNE Analog Loops. We propose to extend the forbearance for UNE 
Analog Loops to all remaining service areas where this unbundling 
obligation still applies. In the recent USTelecom forbearance 
proceeding, we granted relief from unbundling requirements for UNE 
Analog Loops to price cap incumbent LECs in their service areas. We 
propose extending this forbearance relief nationwide for the same 
reasons we stated in the UNE Analog Loop and Avoided-Cost Resale 
Forbearance Order, including the extensive intermodal competition 
present in the voice marketplace, the harmful marketplace distortions 
generated by outdated regulations, and the reduced incentives for both 
incumbent and competitive LECs to invest in their own facilities and to 
transition to next-generation networks. We seek comment on this 
proposal.
    34. Do the considerations in non-price cap areas differ from those 
in price cap areas with respect to these UNEs that can only be used to 
provision voice-grade service? Are any competitors purchasing these 
UNEs to provide voice services in non-price cap areas where other voice 
alternatives do not exist? Commenters should provide specific detail 
whether: (1) Continued UNE Analog Loop requirements in non-price cap 
areas remain necessary to ensure that the charges, practices, 
classifications, or regulations are just and reasonable and are not 
unjustly or unreasonably discriminatory; (2) continued UNE Analog Loop 
requirements are necessary for the protection of consumers; and (3) 
forbearance from UNE Analog Loop requirements is consistent with the 
public interest.
    35. Alternatively, should we find that competitors nationwide are 
no longer impaired without access to UNE Analog Loops in the face of 
the breadth of voice alternatives we described in the UNE Analog Loop 
and Avoided-Cost Resale Forbearance Order? Our conclusions in that 
Order were based on Form 477 data, which is collected on a nationwide 
basis. Nevertheless, should we limit a non-impairment finding only to 
price cap areas where we have previously forborne? If so, what is the 
basis for such a limitation? We also seek comment on whether 
competitors in non-price cap areas remain impaired without access to 
these voice-grade only UNEs. Are there special or different 
circumstances we should consider for evaluating impairment in non-price 
cap incumbent LEC areas?
    36. Grandfathered 64 kbps Fiber Loops. We propose to eliminate the 
requirement that competitive LECs continue to receive unbundled access 
to the previously grandfathered 64 kbps voice channels over fiber 
loops. We propose to reach this outcome whether evaluated under the 
impairment standard of section 251, the forbearance criteria of section 
10, the general standards governing Commission action under provisions 
such as sections 4, 201(b), and 303(r), or any combination thereof. We 
seek comment on this proposal. The Commission forbore from this 
requirement on a nationwide basis for all incumbent LECs in 2015, 
finding this unbundling burden on fiber deployment to be 
disproportionate to the ``very limited'' and decreasingly relevant 
purpose the requirement serves--to protect narrowband voice competition 
as networks transition from copper to fiber. At the same time, the 
Commission grandfathered the obligation as to existing UNE 64 kbps 
voice channels over fiber loops.
    37. We propose to eliminate this grandfathered UNE 64 kbps voice 
channel obligation for two reasons. First, we believe it potentially 
delays the TDM-to-IP transition by locking incumbent LECs subject to 
the grandfathering provision into continuing to provide TDM service 
where they have upgraded their networks to fiber and advanced services 
are available. Second, we believe the continued cost to incumbent LECs 
of maintaining the legacy equipment and systems necessary to continue 
to support this obligation solely to protect narrowband legacy voice is 
no longer necessary in light of our prior findings about the state of 
the voice services marketplace. We seek comment on these views. 
Specifically, we seek comment on the effect the grandfathering 
requirement continues to have on incumbent and competitive LEC 
incentives to deploy next-generation networks and to transition 
customers to next-generation services that are available over such 
networks. In light of intermodal voice alternatives, would a reasonably 
efficient competitor deploy a narrowband network to provide voice 
service today?
    38. To the extent competitors still rely on the grandfathered 64 
kbps voice channel over fiber loops, we seek comment on whether such 
competitors remain impaired without access to this grandfathered 
requirement, and whether the three-part forbearance standard would be 
met for the same reasons they are met with respect to our UNE Analog 
Loop forbearance in price cap incumbent LEC service areas. We believe 
that the respective costs already incurred by both incumbent and 
competitive LECs with respect to this grandfathered requirement is 
outweighed by the costs of continuing to obligate incumbent LECs to 
maintain and support this legacy equipment and service, and the 
societal costs that retaining this grandfathered unbundling obligation 
has on the transition to IP-based networks and services. We seek 
comment on this belief, including what role it should play in our 
analysis. What benefits would be gained by eliminating this obligation? 
Would competitive LECs or consumers be harmed by eliminating their 
access to the grandfathered 64 kbps voice channel? Do any competitive 
LECs still use the grandfathered 64 kbps voice channel?
    39. TDM Capabilities of Hybrid Loops. Hybrid loops are local loops 
``composed of both fiber optic cable, usually in the feeder plant, and 
copper wire or cable, usually in the distribution plant.'' In the 
Triennial Review Order, the Commission declined to order unbundling of 
the packet-based capabilities of hybrid loops. Our rules currently 
require that incumbent LECs unbundle either (1) a TDM voice-grade 
capable 64 kbps channel or (2) a spare copper loop if the requesting 
carrier seeks to provide narrowband services, and only the TDM 
features, functions, and capabilities of hybrid loops if the

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requesting carrier seeks to provision broadband services.
    40. For the same reasons we forbore from the UNE Analog Loop 
requirement in price cap incumbent LEC areas, we do not believe that 
UNE Hybrid Loops continue to be necessary for the provision of 
narrowband voice service. We thus propose granting nationwide 
forbearance from UNE Hybrid Loop requirements. We seek comment on this 
proposal. Are there circumstances specific to these hybrid loops that 
differ from UNE Analog Loops such that these unbundling requirements 
remain necessary for provisioning voice service? Commenters should 
provide specific detail why: (1) Continued UNE Hybrid Loop requirements 
are necessary to ensure that the charges, practices, classifications, 
or regulations are just and reasonable and are not unjustly or 
unreasonably discriminatory; (2) continued UNE Hybrid Loop requirements 
are necessary for the protection of consumers; and (3) forbearance from 
UNE Hybrid Loop requirements is consistent with the public interest. Do 
any competitive LECs today use the unbundled TDM capabilities of hybrid 
loops to provision any broadband services?
    41. We note that no commenter has claimed to use the TDM 
capabilities of hybrid loops to provide broadband service. Is that 
correct? To the extent that any hybrid loops are currently being used 
to provide TDM-based broadband services, would nationwide relief for 
hybrid loop unbundling requirements better promote the transition to 
next-generation networks, including the replacement of the remaining 
copper in hybrid loops with fiber? Do incumbent LECs have hybrid loops 
in rural census blocks such that nationwide elimination of these UNEs 
would eliminate consumer access to broadband in those areas? If so, 
should we consider providing more limited geographic relief, such as 
only in urban census blocks, consistent with our proposals for UNE DS0 
Loops above?
    42. Alternatively, we seek comment on whether we should find that 
competitors are no longer impaired without unbundled access to the TDM-
capabilities, features, and functionalities of hybrid loops. In the 
2003 Triennial Review Order, the Commission concluded that competitors 
were impaired on a nationwide basis without access to these UNEs for 
serving mass market customers. The Commission went on to note, however, 
that this impairment would diminish over time as more and more fiber is 
deployed. Has sufficient fiber been deployed in the sixteen years since 
the Triennial Review Order such that competitors are no longer impaired 
without access to UNE Hybrid Loops for the purpose of serving mass 
market residential customers? In today's marketplace, would a 
reasonably efficient competitor using reasonably efficient technology 
seek to provide voice service using the TDM capabilities of hybrid 
loops? Would a reasonably efficient competitor using reasonably 
efficient technology seek to provide broadband service using the TDM 
capabilities of hybrid loops? Recognizing that hybrid loops are an 
important step in the deployment of fiber to the home, does any 
continued unbundling obligation with respect to these loops, either for 
broadband or narrowband services, threaten to frustrate deployment of 
and transition to next-generation networks and services? Commenters 
should specify whether any impairment or non-impairment faced by 
competitors occurs on a nationwide basis or only in certain geographic 
areas. Commenters should also provide data to support their 
contentions.
d. Subloops
    43. Subloops are portions of a loop or ``smaller included 
segment[s] of an incumbent LEC's local loop plant.'' Subloops are 
generally ordered with the intention of taking ``the competitor all the 
way to the customer.'' Our rules impose UNE obligations for two types 
of subloops--copper and multiunit premises subloops. Subloop unbundling 
obligations only apply to incumbent LECs' distribution loop plant. The 
Copper UNE Subloop is a portion of a copper loop, or hybrid loop, 
comprised entirely of copper wire or copper cable that acts as a 
transmission facility between any point of technically feasible access 
in an incumbent LEC's outside plant and the end-user customer premises. 
The Copper UNE Subloop includes inside wire owned or controlled by the 
incumbent LEC and the features, functions, and capabilities of the 
copper loop. Incumbent LECs must provide competitive LECs unbundled 
access to Copper UNE Subloops for the provision of narrowband and 
broadband services.
    44. The Commission's rules separately address Multiunit Premises 
UNE Subloops due to previously-found specific ``impairments associated 
with facilities-based entry in multiunit buildings or campus 
environments.'' Incumbent LECs must offer unbundled access to these 
subloops necessary to access wiring at or near a multiunit customer 
premises, i.e., all incumbent LEC loop plant between the minimum point 
of entry at a multiunit premises and the point of demarcation. Unlike 
Copper UNE Subloops, the Multiunit Premises UNE Subloop includes the 
entirety of the loop plant regardless of the capacity level or type of 
loop the requesting carrier will provision to its customer, that is, 
including fiber or hybrid loops. Some competitive LECs state that they 
use Multiunit Premises UNE Subloops to ``access loops otherwise 
unavailable because of fiber feeder.'' The Multiunit Premises UNE 
Subloop also includes any inside wiring owned and controlled by the 
incumbent LEC.
    45. We propose to forbear or find no impairment with respect to UNE 
Subloops in the particular instances or geographic areas where we 
propose to eliminate the underlying loop to the customer's premises, 
either by forbearance or finding no impairment. We seek comment on this 
proposal. We base our proposal on the same factors and reasoning upon 
which we propose relief applicable to each of the underlying Copper UNE 
Loops discussed above. We do not believe the public interest would be 
served by maintaining Copper UNE Subloops in areas where the end-to-end 
UNE Loop obligations have been eliminated. We seek comment on this 
view.
    46. We believe competitive LECs' ability to serve their current 
customer base with their own facilities-based network will be 
unaffected if we eliminate Copper UNE Subloop obligations, noting that 
incumbent LECs indicate that they sell a negligible number of Copper 
UNE Subloops. Do commenters agree? If not, commenters should specify 
which types of services, customers, and geographic areas they believe 
our Copper UNE Subloop unbundling proposal would impact. If these 
unbundled subloops are eliminated, will incumbent LECs still provide 
competitive LECs access to subloops on a commercial basis to the extent 
such access is sought? Are there alternatives for competitive LECs to 
reach their end-user customers if we eliminate Copper UNE Subloop 
obligations? We also believe that eliminating Copper UNE Subloops in 
the same instances where we propose to eliminate the underlying UNE 
Loop obligation will be administratively feasible. Do commenters agree? 
If not, how might we ease any administrative difficulties?
    47. We seek more specific comment on the Multiunit Premises UNE 
Subloop. We note that these particular unbundling obligations largely 
came about to address issues related to facilities-based competitors 
accessing the customer's location where access to

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the premises was controlled or managed by someone other than the 
customer. Should we treat the Multiunit Premises UNE Subloop 
differently from the Copper UNE Subloop? Competitive LECs assert that 
special barriers still exist to accessing multiunit premises. Are they 
correct, and if so, do such barriers justify retaining unbundled access 
to subloops for multiunit premises wiring? Are these barriers 
independent of accessing the Multiunit Premises UNE Subloop, such that 
retaining this unbundled element would still not enable competitive 
LECs to access customers in such premises? Are there alternatives to 
Multiunit Premises UNE Subloops to access multiunit premises? Do the 
Commission's rules prohibiting LECs from entering into exclusive access 
contracts with the owners of residential and commercial multi-tenant 
environments make unbundled access to these subloops unnecessary? We 
seek comment on any issues we should consider in evaluating the extent 
to which Multiunit Premises UNE Subloops should remain available on an 
unbundled basis to best further the objectives of the Act.
2. UNE Dark Fiber Transport
    48. Dark fiber transport is deployed fiber optic cable between 
incumbent LEC wire centers that has not been ``lit'' through the 
addition of optronic equipment that would make it capable of carrying 
telecommunications. This dark fiber facility is typically referred to 
as ``interoffice dark fiber.'' The Commission's transport unbundling 
rules define when an incumbent LEC is required to unbundle its 
interoffice dark fiber and make it available to a requesting carrier. 
Where so obligated, the incumbent LEC must lease its unlit fiber, 
subject to availability, enabling the competitive LEC to use such dark 
fiber as if it were part of its own fiber network. Thus, after 
deploying its own electronics to light the dark fiber, the competitive 
LEC is able to provision service to end users served from the wire 
center to which the unbundled dark fiber transport terminates.
    49. In the Triennial Review Remand Order, the Commission applied 
the impairment standard to limit the extent to which incumbent LECs are 
required to provide UNE Dark Fiber Transport. The Commission concluded 
that competitive LECs are not impaired without access to UNE Dark Fiber 
Transport when both wire centers are classified as either Tier 1 or 
Tier 2, reasoning that on such routes, ``a reasonably efficient 
competitor has, or could, duplicate the facilities of the incumbent 
LEC.'' For purposes of UNE Dark Fiber Transport, a Tier 1 wire center 
has at least four fiber-based collocators or at least 38,000 business 
lines, or both. A Tier 2 wire center is one that does not qualify as 
Tier 1 but has at least three fiber-based collocators or at least 
24,000 business lines, or both. All other wire centers are Tier 3. As a 
result, all UNE Dark Fiber Transport that is leased today involves at 
least one Tier 3 wire center end point. Tier 3 wire centers are all 
wire centers that are not classified as Tier 1 or Tier 2 wire centers. 
The Commission has described Tier 3 wire centers as those that ``show a 
generally low likelihood of supporting actual or potential competitive 
transport deployment.'' We refer to these Tier 3 wire centers as ``UNE 
triggering'' wire centers.
    50. In the recent UNE Transport Forbearance Order, we unanimously 
forbore from UNE DS1/DS3 Transport obligations for price cap incumbent 
LECs at wire centers within a half mile of competitive fiber. We 
concluded that the presence of nearby competitive fiber creates a 
sufficiently dynamic marketplace as to protect competition and 
consumers as well as further the public interest, and forbearance was 
therefore warranted.
    51. Consistent with the analysis in the UNE Transport Forbearance 
Order, we propose finding that competitive LECs are not impaired 
without access to unbundled dark fiber transport to wire centers that 
are within a half mile of alternative fiber. The wire centers that we 
propose would no longer be subject to UNE Dark Fiber Transport 
obligations are those for which the Commission granted forbearance from 
UNE DS1/DS3 Transport obligations in the UNE Transport Forbearance 
Order. We seek comment on this proposal. Our proposal is based on 
concluding that a reasonably efficient competitor within a half mile of 
alternative fiber would not be impaired without access to UNE Dark 
Fiber Transport because it should be able to obtain such transport, if 
available, on a commercial basis at competitive rates, or by building 
its own transport network. In the BDS Order, the Commission assumed 
that the presence of a second wireline provider, in addition to the 
incumbent LEC, is sufficient to discipline prices for transport in 
areas with high fixed costs. We affirmed this finding in the BDS Remand 
Order. We infer that this same assumption would apply with respect to 
dark fiber assuming both the incumbent LEC and the second provider 
having the nearby competitive fiber network each have dark fiber 
available for lease. Is this assumption reasonable? Our proposal is 
also informed by the Commission's observation in the Triennial Review 
Remand Order that ``competing carriers that use UNE Dark Fiber 
transport actively seek out wholesale alternatives to the incumbent 
LEC's fiber facilities.'' Does this observation still hold?
    52. Our forbearance analysis in the UNE Transport Forbearance Order 
relied on the proximity of a price cap incumbent LEC wire center to 
competitive lit fiber. Commenters in that proceeding claimed that lit 
fiber is no commercial substitute for dark fiber. However, we do not 
propose to consider the substitutability of lit and dark fiber to be 
relevant in an impairment analysis. While the Commission has previously 
differentiated lit from dark fiber, that has no bearing on the fact 
that the existence of a nearby fiber network suggests the ability of a 
reasonably efficient competitor to self-provision its own fiber network 
in competition with the incumbent LEC, regardless of whether that 
network owner offers lit fiber services or dark fiber facilities. We 
seek comment on whether our conclusion that the existence of a nearby 
competitive fiber network within a half mile necessarily implies an 
ability of at least one reasonably efficient competitor having the 
ability to deploy its own fiber such that we can reasonably infer no 
impairment for other competitors.
    53. We also seek comment on whether we should supplement the list 
of incumbent LEC wire centers for which we propose to find non-
impairment for UNE Dark Fiber Transport by adding any Tier 3 wire 
centers that are within a half mile--or potentially some longer 
distance--of Tier 1 or Tier 2 wire centers. Could we infer no 
impairment as to these wire centers, due to the proximity of either 
fiber-based competitors or business line density at the nearby Tier 1 
and Tier 2 wire centers? We note that in the BDS Order, the Commission 
observed that competitive providers sometimes build ``more circuitous 
route[s] in anticipation of additional demand'' than the existing 
incumbent LEC's route between wire centers. Moreover, we are cognizant 
of the USTA II court's discussion of how we must consider ``facilities 
deployment along similar routes when assessing impairment.'' Should we 
consider this as a separate stand-alone proposal for unbundling relief 
from UNE Dark Fiber Transport obligations? We observe that some wire 
centers that are classified as Tier 3 facilities are apparently located 
in urban areas, which would suggest similar business line density and 
the likely presence of nearby Tier 1 or Tier 2 wire centers. If we were 
to undertake

[[Page 480]]

a one-time analysis to supplement the list based on existing Tier 3 
wire centers, we do not believe this would be administratively 
difficult. Do commenters agree? Could we rely on the wire center 
locations as set forth in the Local Exchange Routing Guide to determine 
the necessary geocoordinates to conduct such an analysis? Are there 
other publicly available sources that would provide better wire center 
location information? We ask commenters to generally comment on any 
administrative burdens associated with wire centers for the purposes of 
this supplemental proposal.
    54. Are there other alternative criteria upon which we should base 
an impairment analysis? For example, should we find that competitive 
LECs are not impaired without access to UNE Dark Fiber Transport at 
Tier 3 wire centers where some threshold percentage of end users served 
by the wire center has access to at least two facilities-based 
providers at 25/3 Mbps without the use of UNEs? If so, should we 
exclude satellite and mobile service providers from counting as a 
facilities-based provider for this test? We would consider fixed 
wireless to the extent we do in our other residential competitive 
tests, as discussed above. Should we conclude that a reasonably 
efficient competitor that serves such end users could secure its own 
transport services without the benefit of UNE Dark Fiber Transport 
because at least one other non-incumbent LEC facilities-based provider 
has been able to serve end users without access to UNE Dark Fiber 
Transport? Are there advantages and disadvantages to using this test? 
Is it reasonable to infer that a confirmed 25/3 Mbps end user in a 
service area indicates the existence of transport alternatives to 
support a finding of non-impairment? What would be the appropriate 
number of, or percentage of, subscribers served by an individual wire 
center for us to make this determination? Should we aggregate 
subscribers at multiple wire centers in a geographic area? Is it 
necessary for the Commission to identify all Tier 3 wire centers ex 
ante, before concluding whether a finding of non-impairment is 
appropriate, and, if so, through what public sources would the 
Commission be able to create a comprehensive list of such wire centers?
    55. Or, should we extend forbearance to UNE Dark Fiber Transport 
obligations for the same wire centers subject to our UNE DS1/DS3 
Transport forbearance? What factors would differ in considering 
forbearance for unbundled dark fiber transport from forbearance for lit 
unbundled transport? In its 2018 forbearance petition, USTelecom 
initially sought nationwide forbearance relief from all transport 
unbundling obligations, including UNE Dark Fiber Transport. Before 
USTelecom withdrew its request for forbearance from UNE Dark Fiber 
Transport obligations, commenters provided sharply contrasting views as 
to whether the forbearance standard could be met for granting such 
relief.
    56. Incumbent LECs generally disputed the relevance of UNE Dark 
Fiber Transport in today's marketplace, pointing to how few such UNEs 
are leased from the largest incumbent providers. Verizon, for example, 
claimed that it both buys a de minimis amount of UNE Dark Fiber 
Transport and sells very small volumes. USTelecom described competitive 
LECs' use of UNE Dark Fiber Transport as playing a ``negligible role in 
the marketplace.'' Moreover, USTelecom observed that the four largest 
incumbent LECs leased only 20,000 to 60,000 combined UNE Dark Fiber 
Transport miles to competitive LECs, compared to nearly 12 million dark 
fiber transport miles that were made available via commercial leasing. 
Incumbent LECs also dispute that UNE Dark Fiber Transport is primarily 
used by competitive LECs to reach end users in rural areas. For those 
competitive LECs that rely on UNE Dark Fiber Transport to provision 
service to a substantial number of end users, CenturyLink reasoned that 
such demand would justify deployment of its own facilities.
    57. Competitive LECs, on the other hand, argued that access to UNE 
Dark Fiber Transport was essential to the provision of new service, 
often in rural markets. For example, one competitive LEC described its 
network buildout strategy, which first requires collocation in the 
incumbent LEC's central office followed by connection to its existing 
facilities-based network using UNE Dark Fiber Transport. This 
competitive LEC emphasized that its use of UNE Dark Fiber Transport 
required investment in collocation and optronics to operationalize the 
leased UNE Dark Fiber Transport. Other commenters contended that 
competitive LECs use UNE Dark Fiber Transport as ``the critical middle-
mile fiber to connect to their own last-mile facilities.'' We seek 
comment generally on all of these assertions and the potential 
application of section 10 forbearance criteria to UNE Dark Fiber 
Transport.
3. Other UNEs
a. Network Interface Devices
    58. The network interface device, or NID, which is always located 
at the customer's premises, is defined as any means of interconnecting 
the incumbent LEC's distribution plant to wiring at a customer premises 
location. Apart from its obligation to provide the NID functionality as 
part of an unbundled loop or subloop, an incumbent LEC must also offer 
nondiscriminatory access to the NID on an unbundled, stand-alone basis 
to requesting carriers for the purpose of connecting the competitor's 
own loop facilities. Forbearance from this obligation would necessarily 
coincide with and follow our forbearance proposals related to loops and 
subloops and previous forbearance grants related to loops. An incumbent 
LEC must permit a requesting carrier to connect its own loop facilities 
to on-premises wiring through the incumbent LEC's NID. The NID is a 
terminal endpoint for loops. The need for unbundled access to an 
incumbent LEC's NID arose to address scenarios, typically in multiunit 
locations, where access to the inside wire on the premises was 
controlled by a premises owner that did not want additional NIDs 
installed on their premises, or a customer had no need for a duplicate 
NID.
    59. Based on the record developed in the USTelecom forbearance 
proceeding, we propose to forbear from the UNE NID obligation because 
it appears that stand-alone NIDs are not necessary for competitive LECs 
to access potential customers. Competitive and incumbent LECs have 
described substantially changed circumstances in the last two-plus 
decades such that this network element may no longer serve any 
meaningful purpose. Competitive carriers are on record stating that 
``[a]s a practical matter, [they] do not purchase network interface 
device elements separate from unbundled loops.'' AT&T is also on record 
stating it sells no UNE NIDs. We seek comment on our view that the lack 
of stand-alone UNE NIDs indicates that the obligation is not necessary 
to ensure just and reasonable rates and to protect consumers, thus 
justifying forbearance.
    60. How often do competitive carriers use this UNE obligation to 
have access to stand-alone NIDs? How many stand-alone NIDs are 
currently purchased from incumbent LECs? Are there still cases where 
customer premises wire is not part of the incumbent LEC's network, 
i.e., not an inside wire subloop, and the NID is the sole means of 
accessing this customer premise's

[[Page 481]]

wire? If we eliminate UNE loop and subloop obligations, would 
competitive providers need to acquire access to NIDs on a stand-alone 
basis, and if so, are there competitive alternatives to this network 
element? In the absence of an unbundling obligation, would incumbent 
LECs still provide access to NIDs? As an alternative to forbearing from 
this requirement, should we instead find that competitive LECs are not 
impaired without access to NIDs? If so, on what basis could we make a 
finding of no impairment?
b. Operations Support Systems
    61. Incumbent LECs must offer nondiscriminatory access to their 
operations support systems, or OSS, for qualifying services on an 
unbundled basis. OSS consists of pre-ordering, ordering, provisioning, 
maintenance and repair, and billing functions supported by an incumbent 
LEC's databases and information. The Commission previously found that 
the UNE OSS ``requirement includes an ongoing obligation on the 
incumbent LECs to make modifications to existing OSS as necessary to 
offer competitive carriers nondiscriminatory access and to ensure that 
the incumbent LEC complies with all of its network element, resale and 
interconnection obligations in a nondiscriminatory manner.'' OSS is 
used for the provision of other UNEs, and it is also a separate stand-
alone UNE that is used for interconnection and other purposes, 
including number porting. The Commission required incumbent LECs to 
provide OSS on an unbundled basis in the Triennial Review Order because 
it found that ``these functions are essential for carriers to serve 
mass market and enterprise customers'' and competitive LECs providing 
these services are ``impaired on a national basis without access to 
OSS.''
    62. We propose to forbear from the standalone OSS unbundling 
obligation--i.e., when used for purposes other than managing other 
UNEs--because we believe its very limited use in today's marketplace is 
evidence that this standalone UNE is not necessary to ensure either 
just and reasonable rates or consumer protection and forbearance would 
be consistent with the public interest. We seek comment on this 
proposal. CenturyLink asserts that ``OSS are naturally coupled to the 
availability of the UNEs they support.'' Does access to this UNE remain 
necessary to facilitate deployment of competitive carrier networks? How 
does this UNE obligation differ from other UNE obligations, and should 
it be treated differently than UNE loop and transport obligations, 
which may require more intrusive sharing of incumbent LEC networks?
    63. If we were to eliminate the UNE OSS obligation, are there any 
alternative OSS providers on which competitive LECs could rely, to the 
extent they need to do so? We seek comment on the assertions by TPx and 
Socket that they rely on UNE OSS to serve their non-UNE based 
customers. We also seek comment on whether OSS as a UNE is necessary 
for competitive LECs and other providers subject to number porting 
obligations. Is there a more efficient way to provide nondiscriminatory 
access to OSS? Alternatively, regardless of whether the statutory 
elements for forbearance are met, are competitive LECs impaired without 
OSS, and should we make a finding of no impairment?
4. Other Considerations
    64. For each network element or requirement discussed above, we 
seek comment on whether requesting carriers are no longer impaired 
without access to the element or requirement under section 251(d)(2), 
or whether the forbearance criteria are met under section 10. We also 
seek comment on whether additional considerations beyond impairment or 
forbearance would justify our proposals, or any alternatives, for each 
network element or requirement discussed above.
    65. In particular, the D.C. Circuit has held that the Commission 
must ``take into account not only the benefits but also the costs of 
unbundling (such as discouragement of investment in innovation),'' 
which the Commission has done ``with the costs of unbundling brought 
into the analysis under Sec.  251(d)(2)'s `at a minimum' language.'' 
For example, when evaluating unbundling previously, the Commission has 
weighed the effects of unbundling on Congress's exhortation in section 
706 of the 1996 Act that it ``encourage the deployment on a reasonable 
and timely basis of advanced telecommunications capability to all 
Americans'' by removing barriers to infrastructure investment. The 
Commission more recently also has cited other potential costs or harms 
of unbundling when addressing requests for relief from a number of 
legacy wireline mandates imposed on incumbent LECs stemming from the 
1996 Act. Such requirements can force incumbent LECs to maintain 
outdated TDM equipment even when they no longer desire to offer those 
services to their customers, undercutting the benefits of technology 
transitions. They can also distort the marketplace by imposing 
unnecessary costs on one class of competitors alone. The Commission has 
also reiterated Justice Breyer's observation that ``mandatory 
unbundling comes at a cost, including disincentives to research and 
development by both incumbent LECs, competitive LECs and the tangled 
management inherent in shared use of a common resource.'' In addition, 
these requirements can create disincentives for competitors to invest 
in their own facilities-based networks and transition their customers 
to next-generation services. We seek comment on the full range of those 
and any other relevant considerations and how they should affect our 
analysis regarding each network element or requirement discussed above.
    66. Additionally, to the extent that the Commission has cited a 
given network element or requirement discussed above as a continuing 
obligation that would remain when granting past regulatory forbearance, 
we seek comment on how that should affect our analysis here. Given that 
forbearance petitions are addressed based on the record compiled in the 
relevant proceeding, we do not believe such past citations should alter 
our actions in this proceeding or require the continued imposition of 
particular requirements if the record here persuades us that relief is 
warranted. We seek comment on that view.
    67. Conversely, we seek comment on how other aspects of our 
regulatory framework--such as the continued applicability of rate 
regulations for DS1s and DS3s in certain areas, the imposition of a 
reasonable comparability benchmark for voice services in areas 
supported by our high-cost Universal Service Fund, or the continuing 
obligation of all local exchange carriers ``not to prohibit, and not to 
impose unreasonable or discriminatory conditions or limitations on, the 
resale of its telecommunications services''--should weigh in our 
analysis. We also seek comment more generally on the impact of 
Commission policy changes, including the recently concluded USTelecom 
forbearance proceeding, on the voice and broadband marketplace.
    68. In addition to a number of specific proposals discussed above, 
we also seek comment on alternative approaches for relief with respect 
to each network element or requirement discussed above, either through 
the impairment standard under section 251(d)(2) or forbearance under 
section 10. For example, is relief justified in a broader or narrower 
range of geographic areas? Are there different competitive conditions 
than those identified above that should inform our grant of relief,

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and if so, how should that relief be tailored to those competitive 
conditions? We note that some commenters request that we defer further 
unbundling relief until we complete the process of revising our 
broadband mapping data collection. In addition, are there 
considerations flowing from the network deployment by incumbent LECs 
and/or competitive LECs in a given area--such as the extent of the 
providers' progress in implementing technology transitions--that should 
inform the scope of, and triggers for, relief? Further, how should 
administrability concerns inform the scope and mechanics of any relief 
we grant? We also seek comment on whether special considerations apply 
to small businesses with respect to each of our proposals above.

B. Avoided-Cost Resale

    69. Except where we have forborne from such obligations, incumbent 
LECs must make available at regulated wholesale rates 
telecommunications services that they make available to their own non-
carrier retail customers. In the UNE Analog Loop and Avoided-Cost 
Resale Forbearance Order, we granted price cap incumbent LECs relief 
from the Avoided-Cost Resale requirement. Some parties effectively seek 
reconsideration of our decision to forbear from the Avoided-Cost Resale 
obligations granted in the UNE Analog Loop and Avoided-Cost Resale 
Forbearance Order, rehashing arguments made in the record of that 
proceeding. In this NPRM, we do not revisit the decisions made in the 
UNE Analog Loop and Avoided-Cost Resale Forbearance Order, but we will 
consider those commenters' arguments filed in the record here to the 
extent that they bear on the issues raised in this proceeding.
    70. We propose to extend to non-price cap incumbent LEC service 
areas the forbearance previously granted with respect to Avoided-Cost 
Resale in price cap incumbent LEC service areas. We seek comment on 
this proposal. We base our proposal on the same reasons we stated for 
granting such forbearance to price cap LECs--i.e., ``the breadth of the 
voice service marketplace and the number of wholesale input 
alternatives to competitive LECs seeking to continue serving customers 
currently served by Avoided-Cost Resale.''
    71. Are there reasons why non-price-cap areas may differ from price 
cap areas with respect to the Avoided-Cost Resale requirement that is 
only used to provision voice-grade service? What have been the effects 
of the forbearance granted for Avoided-Cost Resale in the UNE Analog 
Loop and Avoided-Cost Resale Forbearance Order? Commenters should 
provide specific detail as to why continued Avoided-Cost Resale 
requirements in non-price cap areas are or are not necessary (1) to 
ensure that charges, practices, classifications, or regulations are 
just and reasonable and are not unjustly or unreasonably 
discriminatory; (2) to ensure the protection of consumers; and (3) to 
serve the public interest. We also seek comment on the respective costs 
and benefits of this proposal versus retaining the status quo, as well 
as whether special considerations apply to small businesses.

C. Cost-Benefit Analysis

    72. For the purpose of conducting a cost-benefit analysis of the 
various proposals and alternatives for which we seek comment in this 
NPRM, as to each network element or requirement addressed herein, we 
seek comment on how many UNEs or Avoided-Cost resold services are 
currently being purchased, and at what prices. In the absence of 
unbundling and resale obligations, we seek comment on what proportion 
of these arrangements would likely shift to alternative commercial 
services offered by incumbent LECs or other competitors, or would be 
self-provisioned, and at what prices or costs. If commenters expect 
that prices for commercial alternatives for UNEs or resold services 
will be higher or lower than the current rates, we seek comment on why 
that would be so. If competitive LECs were to self-provision UNE 
replacements, how should we estimate their market prices?
    73. What are the expected impacts to investment of each network 
element or requirement discussed above? If incumbent LECs or 
competitive LECs increase their investment in fiber or next-generation 
services as result of any relief, how should we account for such 
increased investment in any cost-benefit analysis? To the extent that 
the elimination of certain UNEs and resold services would have economic 
effects on end users, we seek comment as to the magnitude of these 
effects and how we should quantify them. For example, how can we 
quantify the benefits of migrating users to next-generation services or 
higher speed networks? Should we confine our analysis to consumers that 
currently rely on UNEs or resold services (presumably indirectly) or 
take into account the network effects that migrations to new networks 
could have on all consumers?
    74. We also seek comment on the benefits of lower compliance costs 
for incumbent LECs and other parties, and any other benefits and costs 
of our proposed actions. More generally, for each network element or 
requirement discussed above, we seek comment on the respective costs 
and benefits of particular alternative rules or approaches as compared 
to retaining the current unbundling requirement.

D. Transition Plan

    75. We propose, for all UNE and Avoided-Cost Resale relief that we 
provide, a three-year transition period for existing customers. We seek 
comment on whether we should include a six-month transition period for 
new orders, and if so, for what elements of relief. We seek comment on 
this proposal.
    76. Our proposal is consistent with the UNE Transport Forbearance 
Order and the UNE Analog Loop and Avoided-Cost Resale Order, both of 
which provide three-year transition periods. In those orders, we 
reasoned that three years was sufficient ``to fully ensure that current 
and potential competition plays its expected role'' to ensure just and 
reasonable rates, and for competitive LECs ``to replace their embedded 
base of legacy TDM customer premises equipment and other increasingly 
obsolete TDM-based peripheral devices with new IP-capable equipment.'' 
Similarly, the BDS Order provided a uniform transition period of three 
years to allow existing customers to facilitate their transition to 
alternative facilities or arrangements. Here, consistent with those 
orders, we also propose a three-year transition for any eliminated UNE 
and Avoided-Cost Resale obligations, whether we grant such relief 
through a finding of non-impairment or through forbearance. We believe 
that this transition period supplies the necessary incentives for both 
incumbent and competitive LECs alike to deploy their own next-
generation networks as expeditiously as possible, while ensuring that 
end users do not experience undue service disruption.
    77. What conditions, if any, should apply to a transition period? 
Are there special circumstances that require longer or shorter 
transition periods for any particular UNEs? Should we provide different 
transition periods for UNEs that we grant relief for based on a non-
impairment finding vs. those based on forbearance? What about for 
Avoided Cost Resale? Should we provide a longer grandfathering period 
for Puerto Rico, for reasons similar to the unique Puerto Rico 
transition periods adopted in our recent forbearance orders?
    78. We recognize that the transition mechanism is simply a default 
process

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and carriers remain free to negotiate alternative arrangements 
superseding this transition period. Any transition mechanism would not 
replace or supersede any commercial arrangements carriers have reached 
for the continued provision of facilities or services.
    79. Alternatively, we seek comment on a transition period that is 
shorter than three years for existing customers. In the BDS Order, the 
Commission found that the presence of a nearby potential BDS competitor 
would be expected to provide reasonably competitive outcomes for DS1 
and DS3 services over three to five years. In the UNE Transport 
Forbearance Order, we concluded that ``connecting nearby fiber . . . is 
unlikely to take a full three years for any individual alternative 
transport link,'' but also noted that two years had elapsed since the 
BDS Order and a three-year transition would coincide with the outer 
bound of the Commission's three to five year expectation in the BDS 
Order; in the UNE Analog Loop and Avoided-Cost Resale Order, we noted 
that a three-year period was consistent with prior Commission action 
and ``should provide more than enough time for competitive LECs and 
their customers to transition.'' Should we set a transition deadline of 
August 2, 2022, which would align the transition period with those of 
the UNE Transport Forbearance Order and the UNE Analog Loop and 
Avoided-Cost Resale Order? If so, should we tie this shorter transition 
period to only some relief or all relief granted? What are the 
administrative benefits of syncing the transitions? Are such benefits 
outweighed by what would be a shorter transition for those UNE and 
Avoided-Cost Resale obligations that we seek comment on today?
    80. We note that in the Triennial Review Remand Order, after 
finding non-impairment, the Commission provided a transition period of 
twelve months for high-capacity loops and DS1 and DS3 transport for 
existing customers and eighteen months for UNE Dark Fiber Transport for 
existing customers. What, if any, weight should we place on this prior 
transition timeframe with respect to current UNE obligations that are 
eliminated through a finding of non-impairment? Commenters should 
provide any other input or considerations that should factor into our 
transition timeframe determinations.

II. Initial Regulatory Flexibility Analysis

    81. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this 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 Rulemaking (NPRM). The Commission requests written public 
comments on this IRFA. Comments must be identified as responses to the 
IRFA and must be filed by the deadlines for comments provided on the 
first page of the NPRM. The Commission will send a copy of the NPRM, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA). In addition, the NPRM and IRFA (or 
summaries thereof) will be published in the Federal Register.

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

    82. In the NPRM, we propose to modernize our unbundling and related 
rules for local loops and dark fiber transport, as well as other types 
of network elements. Specifically, the Commission proposes to eliminate 
UNE DS1 and DS3 loop obligations in counties and study areas deemed 
competitive in the BDS Order and the RoR BDS Order, UNE loops in urban 
census blocks, unbundled dark fiber transport to wire centers that are 
within a half mile of alternative fiber, UNE subloops in the particular 
instances or geographic areas where we propose to find no impairment 
for UNE DS0 loops for the underlying loop to the customer's premises, 
the UNE Analog Loop obligation where it still applies, the unbundling 
requirement for the narrowband frequencies of hybrid loops, the stand-
alone UNE network interface device (NID) obligation, the operations 
support systems (OSS) unbundling obligation, except in the case where 
it is used for managing other UNEs, and avoided-cost resale obligations 
in non-price cap areas.

B. Legal Basis

    83. The legal basis for any action that may be taken pursuant to 
the NPRM is contained in sections 1 through 4, 10, and 201, 202, and 
251 of the Communications Act of 1934, as amended, 47 U.S.C. 151 
through 154, 160, 201, 202, and 251.

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

    84. The RFA directs agencies to provide a description of, and where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and by the rule revisions on which the 
NPRM seeks comment, 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.
1. Total Small Entities
    85. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. Our actions, over time, may affect small entities that 
are not easily categorized at present. We therefore describe here, at 
the outset, three broad groups of small entities that could be directly 
affected herein. First, while there are industry specific size 
standards for small businesses that are used in the regulatory 
flexibility analysis, according to data from the SBA's Office of 
Advocacy, in general a small business is an independent business having 
fewer than 500 employees. These types of small businesses represent 
99.9% of all businesses in the United States which translates to 30.2 
million businesses.
    86. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
Nationwide, as of August 2016, there were approximately 356,494 small 
organizations based on registration and tax data filed by nonprofits 
with the Internal Revenue Service (IRS).
    87. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, towns, 
townships, villages, school districts, or special districts, with a 
population of less than fifty thousand.'' U.S. Census Bureau data from 
the 2012 Census of Governments indicates that there were 90,056 local 
governmental jurisdictions consisting of general purpose governments 
and special purpose governments in the United States. Of this number 
there were 37,132 general purpose governments (county, municipal and 
town or township) with populations of less than 50,000 and 12,184 
special purpose governments (independent school districts and special 
districts) with populations of less than 50,000. The 2012 U.S. Census 
Bureau data for most types of governments in the local government 
category shows that the majority of these governments have populations 
of less than 50,000. Based

[[Page 484]]

on these data we estimate that at least 49,316 local government 
jurisdictions fall in the category of ``small governmental 
jurisdictions.''
2. Broadband Internet Access Service Providers
    88. Internet Service Providers (Broadband). Broadband Internet 
service providers include wired (e.g., cable, DSL) and VoIP service 
providers using their own operated wired telecommunications 
infrastructure fall in the category of Wired Telecommunication 
Carriers. Wired Telecommunications Carriers are comprised of 
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 size 
standard for this category classifies a business as small if it has 
1,500 or fewer employees. U.S. Census data for 2012 show that there 
were 3,117 firms that operated that year. Of this total, 3,083 operated 
with fewer than 1,000 employees. Consequently, under this size 
standard, the majority of firms in this industry can be considered 
small.
3. Wireline Providers
    89. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as ``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 communications 
networks. Transmission facilities may be based on a single technology 
or a combination of technologies. Establishments in this industry use 
the wired telecommunications network facilities that they operate to 
provide a variety of services, such as wired telephony services, 
including VoIP services, wired (cable) audio and video programming 
distribution, and wired broadband internet services. By exception, 
establishments providing satellite television distribution services 
using facilities and infrastructure that they operate are included in 
this industry.'' 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 2012 show 
that there were 3,117 firms that operated that year. Of this total, 
3,083 operated with fewer than 1,000 employees. Thus, under this size 
standard, the majority of firms in this industry can be considered 
small.
    90. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the 
Commission nor the SBA has developed a small business size standard 
specifically for incumbent LEC services. The closest applicable size 
standard under SBA rules is for the category Wired Telecommunications 
Carriers as defined above. Under that size standard, such a business is 
small if it has 1,500 or fewer employees. According to Commission data, 
3,117 firms operated in that year. Of this total, 3,083 operated with 
fewer than 1,000 employees. Consequently, the Commission estimates that 
most providers of incumbent local exchange service are small businesses 
that may be affected by the rules and policies adopted. A total of 
1,307 firms reported that they were incumbent local exchange service 
providers. Of this total, an estimated 1,006 have 1,500 or fewer 
employees.
    91. Competitive Local Exchange Carriers (Competitive LECs), 
Competitive Access Providers (CAPs), Shared-Tenant 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 NAICS Code category is Wired 
Telecommunications Carriers, as defined above. Under that size 
standard, such a business is small if it has 1,500 or fewer employees. 
U.S. Census data for 2012 indicate that 3,117 firms operated during 
that year. Of that number, 3,083 operated with fewer than 1,000 
employees. Based on this data, the Commission concludes that the 
majority of Competitive LECS, CAPs, Shared-Tenant Service Providers, 
and Other Local Service Providers, are small entities. 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. 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. Also, 72 carriers have reported that 
they are Other Local Service Providers. Of this total, 70 have 1,500 or 
fewer employees. Consequently, based on internally researched FCC data, 
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.
    92. 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.
    93. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA has developed a definition for Interexchange Carriers. The closest 
NAICS Code category is Wired Telecommunications Carriers as defined 
above. The applicable size standard under SBA rules is that such a 
business is small if it has 1,500 or fewer employees. U.S. Census data 
for 2012 indicates that 3,117 firms operated during that year. Of that 
number, 3,083 operated with fewer than 1,000 employees. According to 
internally developed Commission data, 359 companies reported that their 
primary telecommunications service activity was the provision of 
interexchange services. Of this total, an estimated 317 have 1,500 or 
fewer employees. Consequently, the Commission estimates that the 
majority of IXCs are small entities that may be affected by our 
proposed rules.
    94. Local Resellers. The SBA has developed a small business size 
standard for the category of Telecommunications Resellers. The 
Telecommunications Resellers industry comprises establishments engaged 
in purchasing access and network capacity from owners and operators of 
telecommunications networks and reselling wired and wireless 
telecommunications services (except satellite) to businesses and 
households. Establishments in this industry resell telecommunications; 
they do not operate transmission facilities and infrastructure. Mobile 
virtual network operators (MVNOs) are included in this industry. Under 
that size standard, such a business is small if it has 1,500 or fewer 
employees. Census data for 2012 show that 1,341 firms provided resale 
services during that year. Of that number, all operated with fewer than 
1,000 employees. Thus, under this category and the associated small

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business size standard, the majority of these prepaid calling card 
providers can be considered small entities.
    95. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a definition 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 NAICS Code category is for 
Wired Telecommunications Carriers as defined above. Under the 
applicable SBA size standard, such a business is small if it has 1,500 
or fewer employees. Census data for 2012 show that there were 3,117 
firms that operated that year. Of this total, 3,083 operated with fewer 
than 1,000 employees. Thus, under this category and the associated 
small business size standard, the majority of Other Toll Carriers can 
be considered small. According to internally developed 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. Consequently, the 
Commission estimates that most Other Toll Carriers are small entities 
that may be affected by rules adopted pursuant to the Second Further 
Notice.
    96. Operator Service Providers (OSPs). Neither the Commission nor 
the SBA has developed a small business size standard specifically for 
operator 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, 33 carriers have reported that 
they are engaged in the provision of operator services. Of these, an 
estimated 31 have 1,500 or fewer employees and two have more than 1,500 
employees. Consequently, the Commission estimates that the majority of 
OSPs are small entities.
4. Wireless Providers--Fixed and Mobile
    97. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
appropriate size standard under SBA rules is that such a business is 
small if it has 1,500 or fewer employees. For this industry, U.S. 
Census data for 2012 show that there were 967 firms that operated for 
the entire year. Of this total, 955 firms had employment of 999 or 
fewer employees and 12 had employment of 1000 employees or more. Thus 
under this category and the associated size standard, the Commission 
estimates that the majority of wireless telecommunications carriers 
(except satellite) are small entities.
    98. According to internally developed Commission data, 413 carriers 
reported that they were engaged in the provision of wireless telephony, 
including cellular service, Personal Communications Service, and 
Specialized Mobile Radio Telephony services. Of this total, an 
estimated 261 have 1,500 or fewer employees, and 152 have more than 
1,500 employees. Thus, using available data, we estimate that the 
majority of wireless firms can be considered small.
    99. Wireless Communications Services. This service can be used for 
fixed, mobile, radiolocation, and digital audio broadcasting satellite 
uses. The Commission defined ``small business'' for the wireless 
communications services (WCS) auction as an entity with average gross 
revenues of $40 million for each of the three preceding years, and a 
``very small business'' as an entity with average gross revenues of $15 
million for each of the three preceding years. The SBA has approved 
these definitions.
    100. Wireless Telephony. Wireless telephony includes cellular, 
personal communications services, and specialized mobile radio 
telephony carriers. The closest applicable SBA category is Wireless 
Telecommunications Carriers (except Satellite). Under the SBA small 
business size standard, a business is small if it has 1,500 or fewer 
employees. For this industry, U.S. Census Bureau data for 2012 show 
that there were 967 firms that operated for the entire year. Of this 
total, 955 firms had fewer than 1,000 employees and 12 firms had 1000 
employees or more. Thus under this category and the associated size 
standard, the Commission estimates that a majority of these entities 
can be considered small. According to Commission data, 413 carriers 
reported that they were engaged in wireless telephony. Of these, an 
estimated 261 have 1,500 or fewer employees and 152 have more than 
1,500 employees. Therefore, more than half of these entities can be 
considered small.
    101. All Other Telecommunications. ``All Other Telecommunications'' 
is defined as follows: This U.S. industry is comprised of 
establishments that are 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 ``All Other Telecommunications,'' 
which consists of all such firms with gross annual receipts of $35 
million or less. For this category, census data for 2012 show that 
there were 1,442 firms that operated for the entire year. Of these 
firms, a total of 1,400 had gross annual receipts of less than $25 
million. Consequently, we estimate that the majority of All Other 
Telecommunications firms are small entities that might be affected by 
our action.

D. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    102. The NPRM propose changes to, and seeks comment on, the 
Commission's unbundling and related rules for local loops and dark 
fiber transport, as well as other types of network elements. The 
objective of the proposed modifications is to encourage the deployment 
of next-generation networks and unburden incumbent LECs where there is 
substantial evidence of facilities-based competition and market entry. 
Beyond the benefits that providers will enjoy from a decreased 
regulatory burden on their day-to-day operations, these changes would 
not affect the reporting, recordkeeping, and other compliance 
requirements of carriers, some of which are small entities.

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

    103. 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

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requirements or timetables that take into account the resources 
available to small entities; (2) the clarification, consolidation, or 
simplification of compliance and reporting requirements under the rules 
for such 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 such small entities.
    104. The rule changes proposed by the NPRM would reduce the 
economic impact and market distortions of the Commission's unbundling 
rules on incumbent LECs and would increase the incentives for incumbent 
LECs and new entrants to invest in new facilities and deploy new 
technologies. We seek comment as to any additional economic burden 
incurred by small entities that may result from the rule changes 
proposed in the NPRM.

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

    105. None.

III. Procedural Matters

    106. Paperwork Reduction Act of 1995 Analysis. This document does 
not contain proposed information collection(s) subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, 
it does not contain any new or modified information collection burden 
for small business concerns with fewer than 25 employees, pursuant to 
the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4).
    107. Initial Regulatory Flexibility Analysis. An initial regulatory 
flexibility analysis (IRFA) is set forth above. Comments to the IRFA 
must be identified as responses to the IRFA and filed by the deadlines 
for comments on the Notice of Proposed Rulemaking. The Commission will 
send a copy of the Notice of Proposed Rulemaking, including the IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration.
    108. Ex Parte Information. This proceeding 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 list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and 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 section 1.1206(b) of the Commission's rules. 
In proceedings governed by section 1.49(f) of the Commission's rules 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.

IV. Ordering Clauses

    109. Accordingly, it is ordered that, pursuant to sections 1 
through 4, 10, 201, 202, and 251 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151 through 154, 160, 201, 202, and 251, this Notice 
of Proposed Rulemaking is adopted.
    110. It is further ordered that the Commission's Consumer & 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Notice of Proposed Rulemaking, 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 common carriers, Telecommunications.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Proposed Rule

    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 citation for part 51 continues to read as follows:

    Authority:  47 U.S.C. 151 through 155, 201 through 205, 207 
through 209, 218, 225 through 227, 251 through 252, 271, 332 unless 
otherwise noted.

0
2. Amend Sec.  51.319 by:
0
a. Revising paragraph (a)(1);
0
b. Removing paragraph (a)(3)(iii)(C); and
0
c. Revising paragraphs (a)(4)(i), (a)(5)(i), (b), and (d)(2)(iv).
    The revisions read as follows:


Sec.  51.319  Specific unbundling requirements.

    (a) * * *
    (1) Copper loops. An incumbent LEC shall provide a requesting 
telecommunications carrier with nondiscriminatory access to the copper 
loop in census blocks defined as rural by the Census Bureau on an 
unbundled basis. A copper loop is a stand-alone local loop comprised 
entirely of copper wire or cable. Copper loops include two-wire and 
four-wire analog voice-grade copper loops, digital copper loops (e.g., 
DS0s and integrated services digital network lines) as well as two-wire 
and four-wire copper loops conditioned to transmit the digital signals 
needed to provide digital subscriber line services, regardless of 
whether the copper loops are in service or held as spares. The copper 
loop includes attached electronics using time division multiplexing 
technology, but does not include packet switching capabilities as 
defined in paragraph (a)(2)(i) of this section. The availability of DS1 
and DS3 copper loops is subject to the requirements of paragraphs 
(a)(4) and (5) of this section.
* * * * *
    (4) * * * (i) Subject to the cap described in paragraph (a)(4)(ii) 
of this section, an incumbent LEC shall provide a requesting 
telecommunications carrier with nondiscriminatory access to a DS1 loop 
on an unbundled basis to any building not served by a wire center with 
at least 60,000 business lines and at least four fiber-based 
collocators. Once a wire center exceeds both the business line and 
fiber-based collocator thresholds, no future DS1 loop unbundling will 
be required in that wire center. In addition, a DS1 loop only is 
available to a building located in one or more of the following: (A) 
Any county or portion of a county served by a price cap incumbent LEC 
that is not included on the list of counties that have been

[[Page 487]]

deemed competitive pursuant to the competitive market test established 
under 49 CFR 69.803; (B) any study area served by a rate-of-return 
incumbent LEC provided that study area is not included on the list of 
competitive study areas pursuant to the competitive market test 
established under 47 CFR 61.50; or (C) any census block defined as 
rural by the Census Bureau if being requested solely to serve 
residential customers. A DS1 loop is a digital local loop having a 
total digital signal speed of 1.544 megabytes per second. DS1 loops 
include, but are not limited to, two-wire and four-wire copper loops 
capable of providing high-bit rate digital subscriber line services, 
including T1 services.
* * * * *
    (5) DS3 loops. (i) Subject to the cap described in paragraph 
(a)(5)(ii) of this section, an incumbent LEC shall provide a requesting 
telecommunications carrier with nondiscriminatory access to a DS3 loop 
on an unbundled basis to any building not served by a wire center with 
at least 38,000 business lines and at least four fiber-based 
collocators. Once a wire center exceeds the business line and fiber-
based collocator thresholds, no future DS3 loop unbundling will be 
required in that wire center. In addition, a DS3 loop only is available 
to a building located in one of the following: (A) Any county or 
portion of a county served by a price cap incumbent LEC that is not 
included on the list of counties that have been deemed competitive 
pursuant to the competitive market test established under 49 CFR 
69.803; or (B) any study area served by a rate-of-return incumbent LEC 
provided that study area is not included on the list of competitive 
study areas pursuant to the competitive market test established under 
47 CFR 61.50. A DS3 loop is a digital local loop having a total digital 
signal speed of 44.736 megabytes per second.
* * * * *
    (b) Subloops. An incumbent LEC shall provide a requesting 
telecommunications carrier with nondiscriminatory access to subloops on 
an unbundled basis in accordance with section 251(c)(3) of the Act and 
this part and as set forth in paragraph (b) of this section, provided 
that the underlying loop is available as set forth in paragraph (a) of 
this section.
* * * * *
    (d) * * *
    (2) * * *
    (iv) Dark fiber transport. Dark fiber transport consists of 
unactivated optical interoffice transmission facilities. Incumbent LECs 
shall unbundle dark fiber transport between any pair of incumbent LEC 
wire centers except where, through application of tier classifications 
described in paragraph (d)(3) of this section, where both wire centers 
defining the route are either Tier 1, Tier 2, or a Tier 3 wire center 
identified on the list of wire centers that has been found to be within 
a half mile of alternative fiber pursuant to the Report and Order on 
Remand and Memorandum Opinion and Order in WC Docket No. 18-14, FCC 19-
66 (released July 12, 2019). An incumbent LEC must unbundle dark fiber 
transport if a wire center on either end of a requested route is a Tier 
3 wire center that is not on the published list of wire centers.
* * * * *
[FR Doc. 2019-27607 Filed 1-3-20; 8:45 am]
 BILLING CODE 6712-01-P