Yesterday the FCC’s Wireline Competition Bureau issued an Order that clarifies and modifies the Special Access Data Collection Order (adopted on 12/11/12 and released in December 2012). The due date for responses has not been set, as OMB approval is required first. Since the FCC is already eight months behind its self-imposed schedule for this proceeding, companies obligated to respond to this mandatory data request should anticipate a due date as early as the first quarter of 2014. Both Providers and Purchasers subject to the FCC’s jurisdiction must respond to the request or face significant fines — up to $160,000 per day capping out at $1.575M.
To briefly recap, in December 2012, the FCC initiated a comprehensive, mandatory special access data collection directed at all providers and purchasers of interstate and intrastate special access services (e.g., DS1s, DS3s, OC3s, etc.) and most entities that provide “best efforts” business broadband Internet access services. The FCC required any company subject to its jurisdiction that sells or buys these services to file extensive information about their facilities, served locations, prices, revenues, and expenditures. The FCC will use this information to evaluate competition in the special access market, which could lead to changes to the pricing flexibility that the FCC has previously given to ILECs for these services.
Yesterday’s Order narrowed the types of Purchasers that are required to respond to the data request, by eliminating certain categories of companies that may purchase some special access services but are only tangentially subject to FCC regulation, such as experimental radio authorization holders, antenna structure registration holders, TV and radio broadcasters, etc. While excluding these selected categories of Purchasers, the FCC specifically declined to create a broader de minimis exception for small Purchasers as some commenters had proposed.
The FCC clarified that the data request only applies to Providers or Purchasers of dedicated services in areas where the ILEC was subject to price cap regulation at any point in 2010 or 2012, the reporting period for the data collection. The FCC has made a map available on its website that shows the price cap areas.
The Order also clarifies that all entities that are required to submit the Form 477 because they provide broadband connections to end users must at least file a certification in response to the data request, indicating whether they are a Provider, Purchaser, or providing Best Efforts Broadband Internet Access service (in which case, they must respond to the relevant questions), or none of the above (in which case, no response other than the certification is required). The FCC will use the list of 477 filers to determine if an entity should have filed a response to the special access data collection, so if your company reported any broadband connections on the 477, be sure to file a response to avoid a possible fine.
Yesterday’s Order includes a comprehensive set of instructions and format specifications for responding to the data collection, which the FCC says will answer many of the clarification requests that it received in response to the December 2012 order. For instance, the instructions clarify the kinds of connections that need to be reported by various types of service providers (e.g., cable vs. non-cable competitive providers, ILECs); the reporting of location information by type of location (a provider can specify “unknown” if it does not have the information) and by geocode (which can be based on a postal address using a geocoding platform rather than a site visit); and the mapping requirements for fiber routes and nodes. Although it made some concessions to reduce the burden of the mapping requirements, the FCC did not significantly modify the obligations included in the December data request and rejected proposals by some parties to limit the requirement to whatever network maps a competitive provider has available.
The Order eliminated the requirement for cable system operators (but not other competitive providers) to report the locations of their U.S. headquarters and that of their affiliates and entities acquired through merger, going back to 1995. It also clarified that Purchasers are not required to provide detailed narrative responses to certain questions about problems they have experienced with terms and conditions of Providers if they have not experienced such problems or simply do not care to respond.
Appendix A of the Order includes the final instructions for the special data collection, including filing requirements, general and detailed instructions, and data table specifications. Appendix B includes the Mandatory Data Collection questions, including definitions. This latter appendix is a revised version of Appendix A from the December 2012 Order. There is no red-line version, but the body of the order identifies the substantive changes
For Regulatory Bulletin Service subscribers, a TMI Bulletin will be issued that provides more details about yesterday’s Order.
We will be discussing this at our October Regulatory Seminar.
See a sample TMI Regulatory Bulletin here.