[Federal Register Volume 86, Number 26 (Wednesday, February 10, 2021)]
[Rules and Regulations]
[Pages 8872-8876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00287]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 63

[WC Docket No. 17-84; DA 20-1241; FRS 17275]


Accelerating Wireline Broadband Deployment by Removing Barriers 
to Infrastructure Investment

AGENCY: Federal Communications Commission

ACTION: Denial of reconsideration.

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SUMMARY: In this document, the Wireline Competition Bureau of the 
Federal Communications Commission (Commission) denies Public 
Knowledge's Petition for Reconsideration of the Wireline Infrastructure 
Second Report and Order, published on July 9, 2018, and dismisses as 
moot Public Knowledge's companion Motion to Hold in Abeyance the same 
Order pending an appeal that has now been denied.

DATES: The Commission denies the petition for reconsideration as of 
March 12, 2021.

ADDRESSES: Federal Communications Commission, 45 L Street NE, 
Washington, DC 20554.

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau, 
Competition Policy Division, Michele Levy Berlove, at (202) 418-1477, 
[email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Wireline 
Competition Bureau's Order on Reconsideration in WC Docket No. 17-84, 
adopted October 20, 2020 and released October 20, 2020. The full text 
of this document is available on the Commission's website at https://docs.fcc.gov/public/attachments/DA-20-1241A1.docx. 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 &

[[Page 8873]]

Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 
(TTY).
    The Wireline Competition Bureau adopted the Order on 
Reconsideration in conjunction with an Order and a Declaratory Ruling 
in WC Docket No. 17-84.
    This document does not contain new or modified information 
collection requirements 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).
    The Commission will not send a copy of this Order on 
Reconsideration to Congress and the Government Accountability Office 
pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), 
because the adopted rules are rules of particular applicability. This 
document denying the Order on Reconsideration applies to one 
petitioner, Public Knowledge.

Synopsis

I. Introduction

    1. Next-generation networks hold the promise of new and improved 
service offerings for American consumers, and encouraging the 
deployment of these facilities as broadly as possible has long been a 
priority of the Commission. The COVID-19 pandemic has served to 
underscore the importance of ensuring that people throughout the 
country can reap the benefits of these next-generation networks, which 
provide increased access to economic opportunity, healthcare, 
education, civic engagement, and connections with family and friends. 
Removing unnecessary regulatory barriers faced by carriers seeking to 
transition legacy networks and services to modern broadband 
infrastructure is therefore a key component of the Commission's work to 
improve access to advanced communications services and to close the 
digital divide.
    2. In the Order on Reconsideration, the Wireline Competition Bureau 
denies a petition by Public Knowledge (Petitioner) seeking 
reconsideration of the Wireline Infrastructure Second Report and Order 
(Second Report and Order or Order), 83 FR 31659, July 9, 2018, and 
dismisses as moot its accompanying motion to have the Commission hold 
that Order in abeyance pending the outcome of an appeal.

II. Background

    3. Section 214(a) of the Communications Act of 1934, as amended, 
requires that carriers seek Commission authorization before 
discontinuing, reducing, or impairing service to a community or part of 
a community. Unless otherwise noted, this item uses the term 
``discontinue'' or ``discontinuance'' as a shorthand for the statutory 
language ``discontinue, reduce, or impair.'' The Commission will grant 
such authorization only if it determines that ``neither the present nor 
future public convenience and necessity will be adversely affected.'' 
This requirement is ``directed at preventing a loss or impairment of a 
service offering to a community or part of a community without adequate 
public interest safeguards.'' Reference to ``the Commission'' with 
respect to administering its section 214 discontinuance rules 
throughout this item includes actions taken by the Bureau pursuant to 
its delegated authority to accept, process, and act on section 214 
applications.
    4. The Commission's rules implementing section 214(a) provide that 
a carrier's application seeking Commission discontinuance authority 
will be automatically granted after sixty or thirty days, depending on 
whether the carrier is considered dominant or nondominant, 
respectively, unless the Commission notifies the applicant otherwise. 
This automatic grant feature has become known as streamlined 
processing. The Commission may remove an application from streamlined 
processing based on the contents of the application itself, responsive 
or oppositional comments, or other issues associated with the 
application that warrant further scrutiny prior to acting. The 
Commission will normally authorize the discontinuance, however, 
``unless it is shown that customers would be unable to receive service 
or a reasonable substitute from another carrier or that the public 
convenience or necessity is otherwise adversely affected.''
    5. In evaluating whether a planned discontinuance of service will 
adversely affect the public convenience or necessity, the Commission 
traditionally employs a five-factor balancing test. These five factors 
analyze: (1) The financial impact on the common carrier of continuing 
to provide the service; (2) the need for the service in general; (3) 
the need for the particular facilities in question; (4) increased 
charges for alternative services; and (5) the existence, availability, 
and adequacy of alternatives. While analysis of these five factors 
``generally provides the basis for reviewing discontinuance 
applications, our `public interest evaluation necessarily encompasses 
the broad aims of the Communications Act.' '' In 2016, the Commission 
revised its streamlined discontinuance rules to create a process 
applicable specifically to technology transition discontinuance 
applications. These applications seek to discontinue legacy time-
division multiplexing (TDM)-based voice services in a community, 
replacing them instead with a voice service using a different, next-
generation technology. In adopting a new process specifically for 
technology transition discontinuance applications, the Commission 
concluded that the existence, availability, and adequacy of 
alternatives has ``heightened importance'' in evaluating the impact on 
the public interest, as consumers in the affected community would 
typically need to transition to more modern voice service alternatives 
having different characteristics. As a result, carriers could get 
streamlined treatment of a technology transition discontinuance 
application only by complying with a set of requirements intended to 
focus heightened scrutiny on the replacement service to which end-user 
customers would have access. In order to get streamlined treatment via 
the adequate replacement test, a technology transition discontinuance 
applicant must certify or demonstrate that one or more replacement 
services in the area offers all of the following: (1) Substantially 
similar levels of network infrastructure and service quality as the 
applicant service; (2) compliance with existing Federal and/or industry 
standards required to ensure that critical applications such as 911, 
network security, and applications for individuals with disabilities 
remain available; and (3) interoperability and compatibility with an 
enumerated list of applications and functionalities determined to be 
key to consumers and competitors.
    6. In furtherance of its commitment to encouraging a more rapid 
transition to next-generation voice technologies and services, the 
Commission further amended its technology transition discontinuance 
rules in 2018 to provide an additional, more streamlined option for 
carriers seeking to discontinue legacy voice services. This option 
encompassed ``appropriate limitations to protect consumers and the 
public interest,'' while enabling carriers to work more responsively to 
``redirect resources to next-generation networks,'' ultimately 
benefitting the public. Via a

[[Page 8874]]

new ``alternative options test,'' a carrier's technology transition 
discontinuance application is eligible for streamlined processing when: 
(1) The discontinuing carrier offers a stand-alone, facilities-based 
interconnected Voice over Internet Protocol (VoIP) service throughout 
the affected service area, and (2) at least one stand-alone facilities-
based voice service is available from an unaffiliated provider 
throughout the affected service area. A carrier seeking streamlined 
treatment for a technology transition discontinuance application can 
choose to satisfy either the adequate replacement test or the 
alternative options test. All carriers, regardless of status as 
dominant or non-dominant, are eligible for the streamlined options for 
the discontinuance of legacy TDM-based voice service. We note that 
seeking streamlined treatment for a technology transition 
discontinuance application is optional. If a discontinuing carrier 
cannot, or elects not to attempt to, satisfy the requirements 
associated with seeking one of the streamlined treatment alternatives, 
the carrier may always proceed with its discontinuance application on a 
non-streamlined basis, under the traditional five-factor test. In 
addition, neither the 2016 nor the 2018 technology transition 
discontinuance rules limited their applicability to incumbent local 
exchange carriers (LECs). An incumbent LEC is any local exchange 
carrier in a specific area that: (A) On February 8, 1996, provided 
telephone exchange service in such area; and (B)(i) on February 8, 
1996, was deemed to be a member of the exchange carrier association 
pursuant to Sec.  69.601(b) of the Commission's regulations (47 CFR 
69.601(b)); or (ii) is a person or entity that, on or after February 8, 
1996, became a successor or assign of a member described in clause (i). 
By contrast, a competitive LEC is a carrier that intends to compete 
directly with the incumbent LEC for its customers and its control of 
the local market.

III. Order on Reconsideration

    7. In this Order on Reconsideration, the Wireline Competition 
Bureau (Bureau) denies Public Knowledge's Petition for Reconsideration 
(Petition) of the Wireline Infrastructure Second Report and Order. We 
also dismiss as moot Public Knowledge's companion Motion to Hold in 
Abeyance (Motion) the same Order pending an appeal that has now been 
denied.
    8. On June 7, 2018, the Commission adopted the Second Report and 
Order, in which, among other things, it established a new, alternative 
path for carriers to obtain streamlined treatment of applications to 
discontinue legacy TDM-based voice services as part of a technology 
transition. Public Knowledge subsequently sought reconsideration of 
that Order and to have the Commission hold it in abeyance pending the 
outcome of an appeal of the Wireless Infrastructure First Report and 
Order (First Report and Order) (82 FR 61453, Dec. 28, 2017) in the same 
Commission proceeding. The Wireline Competition Bureau sought comment 
on Public Knowledge's Petition on September 19, 2018 (83 FR 47325). 
While the Public Notification seeking comment on the Petition did not 
also seek comment on the Motion, certain filers responded to the 
Motion. No commenters other than Public Knowledge filed in support of 
the Petition. Three commenters filed oppositions to the Petition, 
generally arguing that it ``offers no basis for the Commission to 
reverse any of its decisions.'' We agree and deny the Petition. 
Moreover, we deny the Motion as moot for the additional independent 
reason that the pending appeal upon which it was based has been denied.

A. The Petition Rehashes Issues Already Addressed

    9. In support of its Petition, Public Knowledge raises several 
arguments that the Commission previously addressed in the Second Report 
and Order. Specifically, the Petition argues that: (1) ``the 
Commission's changes to its rules . . . pose a threat to the ability of 
[F]ederal agencies to complete their missions;'' (2) the ``alternative 
options'' test adopted in the Second Report and Order is deficient in 
various ways; and (3) the Commission improperly relied on ``market-
based incentives [as] sufficient to ensure that customers will retain 
access to adequate service.'' USTelecom noted that ``[m]any of the 
complaints in the Petition have already been considered by the 
Commission.'' The Wireline Competition Bureau denies the Petition 
because all of Public Knowledge's arguments were fully considered, and 
rejected, by the Commission in the underlying proceeding.
    10. First, Public Knowledge argues in its Petition that a filing by 
the National Telecommunications and Information Administration (NTIA), 
submitted after the Second Report and Order was adopted, raises 
concerns that Federal agencies ``are likely to be negatively impacted 
by the fact that the Order's discontinuance process does not require 
carriers to prove that replacement services will provide service 
substantially similar those being discontinued.'' The Wireline 
Competition Bureau disagrees with Public Knowledge's characterization 
of the NTIA letter, and with the assertion that government agencies 
will be negatively affected by the changes adopted in the Second Report 
and Order.
    11. As an initial matter, the Commission fully considered, and 
rejected, arguments that government agencies would be negatively 
impacted by the rules adopted in the Second Report and Order. In that 
Order, the Commission found unpersuasive ``concerns that large 
enterprise or government customers will be adversely affected by 
further streamlined processing of legacy voice discontinuance 
applications that do not meet the adequate replacement test.'' The 
Commission found in the Second Report and Order that ``carriers are 
accustomed to working with . . . government users . . . to avoid 
service disruptions'' and noted the Commission's expectation that under 
the new streamlined discontinuance processing rules ``carriers will 
`continue to collaborate with their [enterprise or government] 
customers . . . to ensure that they are given sufficient time to 
accommodate the transition to [next-generation services] such that key 
functionalities are not lost during this period of change.' '' The 
Commission went on to note that ``as with all discontinuance 
applications, [Federal agency] customers are able to file comments in 
opposition to a discontinuance application and seek to have the 
Commission remove the application from streamlined processing.'' The 
NTIA letter referenced by the Petition raises no new concerns about 
these findings.
    12. Moreover, several commenters point out that the Petition 
misconstrues NTIA's filing, which, ``[c]ontrary to Public Knowledge's 
assertions, . . . generally supports the Commission's approach'' in the 
Second Report and Order. For example, NTIA ``support[s] the 
Commission's decision to extend . . . streamlined processing rules . . 
. for legacy voice and data services operating at speeds less than 
1.544 Mbps to carrier applications to discontinue data services at 
speeds below 25/3 Mbps.'' NTIA observes that ``if carriers' conduct 
impairs . . . critical national security and public safety functions, 
the Commission retains `flexibility to address [agencies'] 
circumstances on a case-by-case basis.' '' More generally, NTIA 
recognizes the Second Report and Order's discussion of Federal agencies 
``as a commitment to sanction conduct impinging on'' critical

[[Page 8875]]

agency functions, expressing confidence ``that the Commission will 
continue to recognize and address the specific needs of [F]ederal 
[G]overnment users during the IP transition.'' In particular, NTIA's 
letter endorses the Commission's discussion of Federal agencies in the 
Second Report and Order, noting that the Commission retains flexibility 
to address issues related to national security and public safety raised 
by legacy voice service discontinuances on a case-by-case basis. As 
Verizon notes, ``NTIA agreed [with the Commission's finding that] the 
[F]ederal [G]overnment `generally is well-positioned to protect its 
interests through large-scale service contracts with carriers.' '' 
While the NTIA letter cited in the Petition notes that some Federal 
agencies in remote or less populated areas may not enjoy the level of 
competition for communications services that exists in other areas of 
the country, NTIA goes on to state that it is ``encouraged'' by the 
Commission's discussion of Federal agencies' interests regarding 
service discontinuances in the Second Report and Order. The letter 
likewise expresses confidence that the Commission's procedures for 
processing service discontinuances will be sufficient to safeguard the 
interests of Federal agencies in maintaining mission critical 
communications infrastructure. In its reply comments in support of its 
Petition, Public Knowledge seems to suggest that despite its ``amicable 
tone'' we should nonetheless read the NTIA letter as constituting an 
implied opposition to the alternative options test adopted in the 
Second Report and Order. The Wireline Competition Bureau declines, 
however, to read into NTIA's letter arguments that do not appear in its 
text. And although NTIA suggests that the Bureau ``should hold in 
abeyance any copper retirement if a [F]ederal user credibly alleges 
that the carrier's proposed retirement date does not give the user 
`sufficient time to accommodate the transition to new network 
facilities,' '' nowhere does NTIA argue that the framework adopted in 
the Second Report and Order ``is likely'' to adversely impact Federal 
agencies, nor does NTIA argue that ``any replacement test without 
quantifiable performance standards has inherent shortcomings,'' as 
claimed in the Petition. Copper retirements are subject to the 
Commission's section 251 network change disclosure rules rather than 
the section 214 discontinuance rules. Those rules contain objection 
procedures that allow for a limited extension of the proposed copper 
retirement effective date.
    13. The Wireline Competition Bureau also disagrees with arguments 
in the Petition that the Commission's alternative options test and 
consumer comment period for discontinuances are arbitrary, inconsistent 
with the public interest, or unsupported by the record underlying the 
Second Report and Order. The Commission already considered, and 
rejected, these arguments in the underlying Order. As the Commission 
found in that Order, the record ``shows strong support for further 
streamlining the section 214(a) discontinuance process for legacy voice 
services for carriers in the midst of a technology transition.'' The 
Commission observed that ``the number of switched access lines has 
continued to plummet'' since the adequate replacement test was adopted, 
``while the number of interconnected VoIP and mobile voice 
subscriptions have continued to climb,'' and concluded that ``providing 
additional opportunities to streamline the discontinuance process for 
legacy voice services, with appropriate limitations to protect 
consumers and the public interest, [will] allow carriers to more 
quickly redirect resources to next-generation networks, and the public 
to receive the benefit of those new networks.'' Based on these 
findings, the Commission adopted the alternative options test for 
carriers seeking streamlined treatment of applications to discontinue 
legacy voice services, while retaining the preexisting adequate 
replacement test as an option for carriers.
    14. We also dismiss Petitioner's arguments that we must reconsider 
the Second Report and Order because of perceived deficiencies regarding 
the Commission's broadband maps. Petitioner offers no support for its 
speculation that these maps ``would presumably guide [the Commission's] 
analysis regarding whether another stand-alone facilities-based service 
is available.'' Indeed, nothing in the Second Report and Order suggests 
that the Commission's broadband maps would provide the basis for this 
determination, and the burden falls on the provider seeking 
discontinuance to demonstrate the existence of alternative service 
options.
    15. The Petition argues that the absence of specific performance 
metrics in the alternative options test indicates that the Commission 
has ``abdicated its statutory duty to promote the public interest.'' 
The Wireline Competition Bureau disagrees. As Verizon notes in its 
opposition, the Petition ``ignores the Commission's explanation for why 
the . . . compliance obligations that it found necessary for the . . . 
adequate replacement test are not necessary under the alternative 
options test,'' which, unlike the adequate replacement test, requires 
the existence of at least two alternative services. The alternative 
options test complements, rather than replaces, the adequate 
replacement test, both of which ensure that the public interest is 
protected when carriers seek to discontinue legacy voice services that 
are part of a technology transition. As the Commission explained in the 
Second Report and Order, ``[w]here only one potential replacement 
service exists, a carrier must meet the more rigorous demands of the 
adequate replacement test in order to receive streamlined treatment of 
its discontinuance application. But where there is more than one 
facilities-based alternative . . . we expect customers will benefit 
from competition between facilities-based providers.'' The Commission 
went on to explain that ``[t]he stand-alone interconnected VoIP service 
option required to meet the alternative options test embodies managed 
service quality and underlying network infrastructure, and disabilities 
access and 911 access requirements, key components of the Commission's 
2016 streamlining action.'' For these reasons, the Commission 
explained, ``under either test, customers will be assured a smooth 
transition to a voice replacement service that provides capabilities 
comparable to legacy TDM-based voice services and, often, numerous 
additional advanced capabilities.'' For this reason, the Wireline 
Competition Bureau also disagrees with Petitioner's argument that there 
are ``instances of specific harm that the Commission appeared to 
purposefully overlook during its 2018 rulemaking,'' citing ``critical 
functions like medical device support, fire alarms, and connecting 
credit card readers for small businesses'' and the effects of natural 
disasters like hurricanes and wildfires. As the Commission explained in 
the Second Report and Order, ``[t]he two parts of the alternative 
options test . . . address commenters' concerns about potentially 
inadequate mobile wireless replacement services for customers requiring 
service quality guarantees and their concerns that vulnerable 
populations will be unable to use specialized equipment for people with 
disabilities, such as TTYs or analog captioned telephone devices or 
will be left without access to 911.''
    16. The Wireline Competition Bureau also disagrees with arguments 
in the Petition that we should reconsider the 10-day consumer comment 
period adopted in the Second Report and Order and ``reinstate the 180-
day notice period

[[Page 8876]]

for customers of discontinued services.'' There has never been a 180-
day customer notice period for discontinuance applications. As Verizon 
notes, Petitioner's arguments regarding customer notification seem to 
conflate copper retirement with service discontinuance. The Second 
Report and Order provided for a streamlined 10-day comment period for 
applications to grandfather legacy voice services, which had previously 
been subject to the default of 15 days for non-dominant providers and 
30 days for dominant providers. The Commission had previously adopted 
streamlined comment and automatic grant periods for applications to 
grandfather or to discontinue previously grandfathered low-speed legacy 
voice and data services. In the Second Report and Order, the Commission 
extended this streamlined treatment to all legacy voice services. The 
Commission explained in the Second Report and Order, ``as existing 
customers will be entitled to maintain their legacy voice services, 
they will not be harmed by grandfathering applications.'' It did not, 
however, shorten the comment period applicable to non-grandfathering 
technology transition discontinuance applications. Such applications 
are still subject to the default comment period. And, while the First 
Report and Order revised the Commission's copper retirement rules to 
``eliminate the requirement of direct notice to retail customers'' and 
reduced the copper retirement waiting period from 180 to 90 days, these 
changes did not affect the requirement or timing within which consumers 
receive notice of service discontinuance applications under section 
214.
    17. Finally, the Wireline Competition Bureau dismisses the 
Petition's argument that the Commission ``must reconsider its belief 
that market-based incentives are sufficient to ensure that carriers 
provide adequate replacement services to consumers in the event of a 
service discontinuance.'' The Commission has previously considered and 
rejected Petitioner's claims in this regard. Nevertheless, judgments 
concerning the nature and impact of market incentives as they relate to 
public policy are well within the Commission's discretion. The rules 
adopted in the Second Report and Order were based on an extensive 
record, and in the absence of any new data or facts, the Wireline 
Competition Bureau rejects Petitioner's request to reconsider those 
rules based solely on the fact that it disagrees with the Commission's 
assessment of competition in the market for telecommunications 
services.

B. The Motion To Hold in Abeyance Is Moot

    18. The Wireline Competition Bureau dismisses as moot Public 
Knowledge's accompanying Motion to hold the Second Report and Order 
``in abeyance until pending litigation is resolved.'' The Motion refers 
to a challenge in the United States Court of Appeals for the Ninth 
Circuit of the Commission's 2017 Wireline Infrastructure First Report 
and Order, which was then pending but has since been dismissed for lack 
of standing. We note that some commenters argue that Public Knowledge's 
Motion was an improper motion for a stay, or is procedurally defective 
in other ways. We need not reach determination of these issues, 
however, as we instead merely dismiss this accompaniment to the Public 
Knowledge Petition as moot.
    19. This action is taken pursuant to the authority delegated by 
Sec. Sec.  0.91 and 0.291 of the Commission's rules, 47 CFR 0.91 and 
0.291.

IV. Procedural Matters

    20. This document does not contain new or modified information 
collection requirements 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).
    21. Contact Person. For further information about this proceeding, 
please contact Michele Levy Berlove, Competition Policy Division, 
Wireline Competition Bureau, at (202) 418-1477.

V. Ordering Clauses

    22. Accordingly, it is ordered that, pursuant to sections 1-4 and 
214 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154 
and 214, this Order on Reconsideration is adopted.
    23. It is further ordered that the Petition for Reconsideration 
filed by Public Knowledge is denied.
    24. It is further ordered that this Order on Reconsideration shall 
be effective 30 days after publication in the Federal Register.

Federal Communications Commission
Daniel Kahn,
Associate Chief, Wireline Competition Bureau.

    Editorial note: This document was received for publication by 
the Office of the Federal Register on January 6, 2021.

[FR Doc. 2021-00287 Filed 2-9-21; 8:45 am]
BILLING CODE 6712-01-P