FCC Proceedings On Regulatory Treatment Of Wireline Broadband

The FCC currently has three separate proceedings before it concerning the regulatory treatment of wireline broadband service. They are the Wireline Broadband NPRM, Incumbent LEC Broadband Notice, and the Triennial UNE Review Notice.

These proceedings, along with the Cable Modem NOI, attempt to build the foundation for a comprehensive and consistent national broadband policy regardless of the technology or platform used to deliver it.

More information on federal broadband initiatives and rules is available on the FCC's broadband homepage at http://www.fcc.gov/broadband.

NTCA members are working diligently to deploy broadband services to rural America. However, low take rates suggest that many cannot justify expanding the service to all their remaining customers. NTCA surveyed its members on their deployment activities in 2001. The results of the survey are available in this PDF file.

Wireline Broadband NPRM (CC Docket Nos. 02-33, 95-20, 98-10, FCC 02-42):

Adopted in February 2002, this proceeding, a companion to the Cable Modem NOI, the FCC is looking at the fundamental definitional and classification questions for wireline broadband Internet access service and to consider the regulatory implications of that classification.

Like in its Cable Modem NOI, the FCC tentatively concludes that wireline broadband Internet access service - whether provided over a third party's facilities or self-provisioned facilities - are "information services." The transmission component of retail wireline broadband Internet access services provided over a carrier's own facilities is "telecommunications" rather than "telecommunications services."

By concluding that self-provisioned wireline broadband access is an "information service" with a telecommunications component, the FCC assumes that it will regulate broadband services under Title I of the Telecom Act instead of Title II, common carrier regulation.

Definitions:

• "Information service" is defined as the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.
• "Telecommunications service" is defined as the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available to the public, regardless of facilities used.
• "Telecommunications" is defined as the transmission, between or among points specified by the user, or information of the users choosing, without change in the form or content of the information as sent and received.

The Notice also asks:

• Whether the Computer Inquiry network access requirements should be modified or eliminated
• How to strike an appropriate balance between federal and state responsibility in regulating broadband Internet access
• Whether facilities-based broadband providers should be required to contribute to the universal service fund.

NTCA filed comments in this proceeding on May 3, 2002. NTCA's comments are available in the Federal Filings area.

Regulatory Treatment of ILEC Broadband Services (CC Docket No. 01-337, FCC 01-360)

In December 2001, the FCC initiated an examination of the appropriate regulatory requirements for the ILEC provision of broadband telecommunications services within Title II of the Telecom Act.

Today, incumbent LECs are treated as dominant carriers in the provision of narrowband and broadband services. Dominant carrier status subjects ILECs to certain requirements, such as tariff filings and interconnection obligations. The Commission seeks comment on whether ILECs should be regulated as dominant or non-dominant in the provision of broadband.

In determining whether an ILEC is dominant the Notice asks:

• What the relevant product and geographic markets should be for broadband services
• Whether ILECs possess market power in any relevant market
• How the agency can balance the goals of encouraging broadband investment and deployment, fostering competition in the provision of broadband services, promoting innovation, and eliminating unnecessary regulation

The Commission recognized that the broadband services market is different from the historic narrowband analog voice market which common carrier regulation was created to govern. While DSL can be carried over the same general facilities as plain old telephone service (POTS), the FCC believes that DSL is subject to significant intermodel competition. The proceeding seeks to determine whether it is appropriate to retain dominant carrier requirements for ILEC wireline broadband services.

NTCA filed comments in this proceeding on March 1, 2002. NTCA's comments are available in the Federal Filings area.

Triennial Review of ILEC UNE Obligations (CC Docket No. 01-338, FCC 01-361)

In December 2001, the FCC adopted a notice of proposed rulemaking (NPRM) [FCC 01-361] initiating the first Triennial Review of its policies on unbundled network elements (UNEs), as required under the FCC's 1999 UNE Remand Order.

UNEs are the portions of the phone networks that incumbent local exchange carriers (ILECs) must make available to competing carriers seeking to provide telecommunications services.

The proceeding examines the framework under which ILECs must make UNEs available to competing carriers to ensure they are in line with marketplace developments and technological advances.

The FCC sought comment on most aspects of its unbundling framework, including:

• Application of the statutory "necessary" and "impair" standards, as well as whether and how the FCC should take into account other goals of the Act, such as encouraging broadband deployment, investment in facilities and technological innovation.
• A more targeted approach to defining specific network elements, such as whether or not the unbundling rules should vary by type of service, geography, or other factors.
• The proper role of state commissions in the implementation of unbundling rules.

Some specific questions on broadband UNE provisioning the NPRM asked are whether fiber loops should be de-listed as a UNE and if all fiber-based broadband facilities should be exempted from the UNE requirements.

NTCA filed comments in this proceeding on April 5, 2002. NTCA's comments are available in the Federal FIlings area.