FCC Rules Could Limit Data Delays in Forbearance Proceedings
The FCC should adopt procedural rules for forbearance to get more competition data in less time, said comments on a CLEC petition to adopt rules for forbearance procedures. NCTA, EarthLink and state regulators supported tightening controls on petitioners to relieve a time crunch for replies. But the FCC should also require competitors to be timely, said Alaska incumbent ACS. Meanwhile, the Independent Telephone & Telecommunications Alliance (ITTA) warned against adopting “redundant or superfluous” rules that could undermine deregulation.
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The FCC should create a “minimal set of requirements designed to produce a complete record fairly early in the process,” NCTA said. Cable companies are burdened when Commission requests for regional competition data come late in the forbearance process -- as has often happened in recent proceedings, NCTA said. To speed the process, the FCC should put the burden of proof on the petitioner by adopting a “complete-as-filed” rule preventing them from revising and adding to applications, it said. EarthLink agreed: “It serves no purpose to allow petitioners to withhold critical data until reply comments -- or even later. These ‘hide the ball’ games are inappropriate and are designed solely to frustrate meaningful public input.”
Getting immediate state reaction is also critical, said the Texas Public Utilities Commission. The FCC should require petitioners to send written notice to commissions in states affected, it said. That would give regulators “a reasonable opportunity to submit written comments” to the FCC before the Commission takes action, it said. Rules should “specifically recognize the right of a state commission to intervene and participate in the proceeding to review the petition,” the PUC added.
Competitors should also be subject to tight data filing deadlines, said ACS, which won partial forbearance last year (CD Aug 22 p1). The FCC should adopt rules “that require competitors to provide information that is not ascertainable through public filings or that is not readily available to the forbearance petitioner,” it said. Competitors often aren’t required to publish certain market share and facilities data, it said. “The Commission may deny a petition that is not adequately justified” but it shouldn’t “deny based on the absence of information over which the petitioner has no control.”
But the FCC should be careful not to slow the process, said ITTA. Unnecessary rules could “thwart deregulation or create greater regulatory hurdles,” it said. The 12-month deadline for forbearance petitions has been effective in compelling “prompt resolution,” ITTA said. No rule is needed requiring notice and comment periods because the FCC has always given affected parties opportunity to present their views, it said. And rules to encourage state commission participation are unnecessary because states “have the same rights as other parties to participate in the process,” it said.
Slowing deregulation is the aim of the petition, said AT&T. “Under the guise of seeking “procedural” rules to facilitate Commission consideration of forbearance petitions, the CLECs are actually seeking to throw as much sand into the forbearance gears as they can, to erect arbitrary roadblocks to much-needed regulatory reform, and to reduce the Commission’s flexibility fully and fairly to respond to requests for forbearance.”
ITTA and the Texas PUC comments also advocated data confidentiality. The FCC should reject proposals that would let a party use protected, confidential material from one forbearance proceeding in a separate case, ITTA said. The FCC should recognize states’ responsibility to maintain confidentiality, Texas said. “The Commission protective order should not be allowed to become a tool for a party to fish through competitively sensitive information collected by state commissions,” it said.
Cavalier, Paetec and other CLECs said the FCC should “provide that authorized persons should be able to use confidential and highly confidential information in related forbearance proceedings.” The FCC should refuse to accept CPNI or carrier confidential information that violates the Telecom Act, it said.
The FCC can also improve the process by forbearing from “aspects” of Telecom Act section 10 in “certain circumstances,” several CLECs said in joint comments. The FCC shouldn’t consider “forbearance petitions that are repetitious or that cover the same ground of pending rulemaking proceedings,” they said. “This would permit the agency to engage in an orderly administration of its responsibilities and free up agency resources to work on important industry-wide policy making.”