Petition of South Slope for Classification as an Incumbent Local Exchange Carrier: Oxford, Tiffin and Solon, Iowa Exchanges; Section 251(h)(2)

Federal Register: November 10, 2008 (Volume 73, Number 218)

Proposed Rules

Page 66585-66587

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr10no08-31

FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 51

WC Docket No. 04-347; FCC 08-237

Petition of South Slope for Classification as an Incumbent Local

Exchange Carrier in the Oxford, Tiffin and Solon, IA Exchanges; Section 251(h)(2)

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

SUMMARY: In the Notice of Proposed Rulemaking (NPRM), the Federal

Communications Commission (Commission) seeks comment on whether South

Slope Cooperative Telephone Company, Inc. (South Slope) should be treated as an incumbent local exchange carrier (LEC) for purposes of section 251 of the Communications Act of 1934, as amended,

(Communications Act or Act) in the Iowa exchanges of Oxford, Tiffin and

Solon as provided for in section 251(h)(2) of the Act. The Commission also requests comment on the appropriate regulatory treatment of South

Slope and Iowa Telecommunications Services, Inc. (Iowa Telecom), the legacy incumbent LEC in those exchanges pursuant to section 251 of the

Act, if the Commission concludes that South Slope should be accorded incumbent LEC treatment in the Oxford, Tiffin and Solon exchanges.

DATES: Comments are due on or before December 10, 2008. Reply comments are due on or before December 31, 2008.

ADDRESSES: You may submit comments, identified by WC Docket No. 04-347, by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the instructions for submitting comments.

Federal Communications Commission's Web site: http:// www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.

Mail: Parties choosing to file by paper must file an original and four copies of each filing in WC Docket No. 07-38. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail

(although the Commission continues to experience delays in receiving

U.S. Postal Service mail). If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. The

Commission's mail contractor, Vistronix, Inc., will receive hand- delivered or messenger-delivered paper filings for the Commission's

Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and

Priority Mail) must be sent to 9300 East Hampton Drive, Capitol

Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW.,

Washington, DC 20554. All filings must be addressed to the Commission's

Secretary, Office of the Secretary, Federal Communications Commission.

People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: FCC504@fcc.gov or phone: 202-418- 0530 or TTY: 202-418-0432.

For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY

INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Claudia Pabo, Wireline Competition

Bureau, Competition Policy Division, (202) 418-0940.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice of Proposed Rulemaking in WC Docket No. 04-347, adopted on October 7, 2008, and released on October 10, 2008. The complete text of this

Notice of Proposed Rulemaking is available for public inspection Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from 8 a.m. to 11:30 a.m. in the Commission's Consumer and Governmental Affairs

Bureau, Reference Information Center, Room CY-A257, 445 12th Street,

SW., Washington, DC 20554. The complete text is available also on the

Commission's Internet site at http://www.fcc.gov. Alternative formats are available for persons with disabilities by contacting the Consumer and Governmental Affairs Bureau, at (202) 418-0531, TTY (202) 418-7365, or at fcc504@fcc.gov. The complete text of the decision may be purchased from the Commission's duplicating contractor, Best Copying and Printing, Inc., Room CY-B402, 445 12th Street, SW., Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, or e-mail at fcc@bcpiweb.com.

Synopsis of Further Notice of Proposed Rulemaking 1. In 2004, South Slope, a cooperative telephone company providing service in Iowa, filed a petition requesting that it be treated as an incumbent LEC in the Iowa exchanges of Oxford, Tiffin and

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Solon. In 2001, South Slope began to construct facilities in these three exchanges where Iowa Telecom is currently the incumbent LEC.

South Slope estimates that it now serves approximately 90 percent of the subscribers in these three exchanges. 2. In the NPRM, the Commission seeks comment on whether South Slope should be treated as an incumbent LEC for purposes of section 251 of the Communications Act in the Iowa exchanges of Oxford, Tiffin and

Solon as provided for in section 251(h)(2) of the Act. The Commission also requests comment on the appropriate regulatory treatment of South

Slope and Iowa Telecom, the legacy incumbent LEC in those exchanges pursuant to section 251(h)(1) of the Act, if the Commission concludes that South Slope should be accorded incumbent LEC treatment in the

Oxford, Tiffin and Solon exchanges. 3. Section 251(h)(1) of the Act defines an incumbent LEC as a local exchange carrier that, on the date of enactment of the

Telecommunications Act of 1996, provided local exchange service in an area and was either a member of the National Exchange Carrier

Association (NECA), or became a successor or assign of such a LEC.

Section 251(h)(2) provides that the Commission may provide by rule for the treatment of a LEC as an incumbent LEC for the purposes of section 251 if a three-part test is satisfied. Specifically, in order to find that a LEC should be treated as an incumbent LEC for purposes of section 251, the Commission must find that: (1) The LEC at issue occupies a market position within an area that is comparable to the position of a legacy incumbent LEC; (2) the LEC has ``substantially replaced'' the legacy incumbent LEC; and (3) the reclassification is consistent with the public interest, convenience and necessity and the purposes of section 251. 4. The Commission sought comment on whether South Slope satisfies the three-part test in section 251(h)(2) and should be treated as an incumbent LEC for purposes of section 251 in the Oxford, Tiffin and

Solon exchanges. The Commission did not address the treatment of South

Slope as an incumbent in these three exchanges for purposes of interstate access charges, federal universal service support, and other interstate purposes. The Commission stated that these issues would be addressed as appropriate in other proceedings, including any study area boundary waiver petition that South Slope may file with the Commission. 5. The Commission tentatively concluded that the Oxford, Tiffin and

Solon exchanges are the relevant area for analyzing South Slope's market position. The Commission also tentatively concluded that South

Slope occupies a market position in this area that is comparable to that occupied by a legacy incumbent LEC in light of its extensive facilities build-out and estimate that it now provides local exchange service to approximately 90 percent of the subscribers in these exchanges over its own facilities. The Commission sought comment on these tentative conclusions. 6. In light of South Slope's estimate that it serves approximately 90 percent of the subscribers in the Oxford, Tiffin and Solon exchanges over its own facilities, the Commission tentatively concluded that

South Slope has substantially replaced Iowa Telecom as the local exchange service provider in these exchanges. The Commissions sought comment on this tentative conclusion. 7. The Commission also sought comment on whether the treatment of

South Slope as an incumbent LEC for purposes of section 251 in the

Oxford, Tiffin and Solon exchanges would satisfy the public interest standard. 8. The Commission has previously found that the Act does not automatically convert the legacy incumbent LEC into a competitive LEC when another LEC is designated as an incumbent LEC in a particular area under section 251(h)(2). Instead, the Commission concluded that the elimination of unnecessary regulation is appropriately addressed through the removal of dominant carrier regulation and forbearance under section 10 of the Act. 9. The Commission tentatively concluded that Iowa Telecom should be given non-dominant regulatory treatment for interstate purposes in the

Oxford, Tiffin and Solon exchanges if South Slope is accorded incumbent

LEC status for purposes of section 251. The Commission sought comment on this tentative conclusion. The Commission also stated that Iowa

Telecom may request additional deregulation in the Oxford, Tiffin and

Solon exchanges by filing a formal petition for forbearance consistent with the Commission's rules. 10. The Commission sought comment on whether it should address, in this proceeding, the long-term regulation of South Slope's interstate operations in the Oxford, Tiffin and Solon exchanges if South Slope is accorded section 251(h)(2) incumbent LEC status. If the Commission addresses long-term regulation of South Slope's interstate operations in these exchanges in the current proceeding, it asked what regulations should apply to South Slope's interstate offerings. For example, the

Commission asked whether South Slope should be regulated as a dominant carrier in these three exchanges if it is treated as a section 251(h)(2) incumbent LEC for purposes of section 251.

Ex Parte Presentations 11. This proceeding shall be treated as a ``permit-but-disclose'' proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one-or two-sentence description of the views and arguments presented is generally required. Other rules pertaining to oral and written presentations are set forth in section 1.1206(b) of the Commission's rules as well.

Comment Filing Procedures 12. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR Sec. Sec. 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. All filings related to this Notice of Proposed

Rulemaking should refer to WC Docket No. 04-347. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS);

(2) the Federal Government's rulemaking Portal; or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24,121 (1998).

Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS, http://www.fcc.gov/cgb/ecfs or the Federal eRulemaking Portal, http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.

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For ECFS filers, if multiple dockets or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the

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following words in the body of the message, ``get form.'' A sample form and directions will be sent in response.

Paper Filers: Parties who choose to file by paper must file an original and four copies 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 (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal

Communications Commission.

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The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236

Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

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Commercial overnight mail (other than U.S. Postal Service

Express Mail and Priority Mail) must be sent to 9300 East Hampton

Drive, Capitol Heights, MD 20743.

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U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554. 13. Comments and reply comments and any other filed documents in this matter may be obtained from Best Copy and Printing, Inc., in person at 445 12th Street, S.W., Room CY-B402, Washington, DC 20554, via telephone at (202) 488-5300, via facsimile at (202) 488-5563, or via e-mail at FCC@BCPIWEB.COM. The pleadings will also be available for public inspection and copying during regular business hours in the FCC

Reference Information Center, Room CY-A257, 445 12th Street, SW.,

Washington, DC 20554, and through the Commission's Electronic Comment

Filing System (ECFS) accessible on the Commission's Web site, http:// www.fcc.gov/cgb/ecfs. 14. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer and Governmental

Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). 15. Comments and reply comments must include a short and concise summary of the substantive arguments raised in the pleading. Comments and reply comments also must comply with section 1.49 and all other applicable sections of the Commission's rules. All parties are encouraged to utilize a table of contents, and to include the name of the filing party and the date of the filing on each page of their submission. 16. Commenters who file information that they believe should be withheld from public inspection may request confidential treatment pursuant to section 0.459 of the Commission's rules. Commenters should file both their original comments for which they request confidentiality and redacted comments, along with their request for confidential treatment. Commenters should not file proprietary information electronically. Even if the Commission grants confidential treatment, information that does not fall within a specific exemption pursuant to the Freedom of Information Act (FOIA) must be publicly disclosed pursuant to an appropriate request. See 47 CFR 0.461; 5

U.S.C. 552. The Commission may grant requests for confidential treatment either conditionally or unconditionally. As such, the

Commission has the discretion to release information on public interest grounds that does fall within the scope of a FOIA exemption.

Initial Paperwork Reduction Act of 1995 Analysis 17. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995, 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 47 U.S.C. 3506(c)(4).

Legal Basis 18. The legal basis for any action that may be taken pursuant to the NPRM is contained in sections 1, 2, 4(i)-(j), 201, 203, 214, 251, 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-(j), 201, 203, 214, 251, 303(r).

Initial Regulatory Flexibility Analysis 19. In this NPRM, the Commission seeks comment on whether South

Slope should be treated as an incumbent LEC for purposes of section 251of the Act in the Iowa exchanges of Oxford, Tiffin and Solon pursuant to section 251(h)(2) of the Act. The Commission also requests comment on the appropriate regulatory treatment of South Slope and Iowa

Telecom, the legacy incumbent LEC in those exchanges, if the Commission concludes that South Slope should be accorded incumbent LEC treatment in these exchanges under section 251(h)(2) of the Act. 20. South Slope is a cooperative telephone company that provides local exchange service and exchange access service to approximately 19,500 access lines in the general vicinity of Cedar Rapids and Iowa

City, Iowa. Iowa Telecom is the legacy incumbent LEC that serves the

Oxford. Solon, and Tiffin, Iowa exchanges. Because the proposed rule affects only South Slope and Iowa Telecom, we find that any potential action in this proceeding would not affect a substantial number of small entities. 21. Therefore, we certify that the proposals in this NPRM, if adopted, will not have a significant economic impact on a substantial number of small entities. 22. The Commission will send a copy of this NPRM, including a copy of this Initial Regulatory Flexibility Certification, to the Chief

Counsel for Advocacy of the SBA. This initial certification will also be published in the Federal Register.

Federal Rules That May Duplicate, Overlap, or Conflict With the

Proposed Rules 23. None.

Ordering Clauses 24. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 2, 4(i)-(j), 201, 203, 214, 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i)-

(j), 201, 203, 214, 251, and 303(r), this NPRM is adopted. 25. It is further ordered that the Commission's Consumer and

Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice, including the Initial Regulatory Flexibility

Certification, to the Chief Counsel for Advocacy of the Small Business

Administration.

Federal Communications Commission.

Marlene H. Dortch

Secretary.

FR Doc. E8-26813 Filed 11-7-08; 8:45 am

BILLING CODE 6712-01-P