[Federal Register Volume 66, Number 161 (Monday, August 20, 2001)]
[Rules and Regulations]
[Pages 43516-43523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20860]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 51
[CC Docket No. 98-147; FCC 01-204]
Deployment of Wireline Services Offering Advanced
Telecommunications Capability
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: This document reevaluates certain provisions of the
Commission's collocation rules on remand from the United States Court
of Appeals for the District of Columbia Circuit. Specifically, the
Commission amends its rules regarding which equipment is ``necessary
for interconnection or access to unbundled network elements'' within
the meaning of section 251(c)(6) of the Communications Act of 1934, as
amended, (Communications Act or Act) and thus may be collocated without
an incumbent local exchange carrier's (incumbent LEC's) approval. The
Commission also amends its rules regarding cross-connects between
collocators at an incumbent LEC's premises. The Commission further
amends its rules addressing how an incumbent LEC may assign and
configure physical collocation space.
DATES: Effective September 19, 2001.
FOR FURTHER INFORMATION CONTACT: William Kehoe, Special Counsel, or
Kimberly Cook, Attorney Advisor, Policy and Program Planning Division,
Common Carrier Bureau, (202)
418-1580.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Fourth
Report and Order in CC Docket No.
98-147, released August 8, 2001. The complete text of this Order is
available for inspection and copying during regular business hours in
the FCC Reference Information Center, Courtyard Level, 445 12th Street,
SW., Washington, DC and also may be purchased from the Commission's
copy contractor, International Transcription Services (ITS, Inc.), CY-
B400, 445 12th Street, SW., Washington, DC. It is also available on the
Commission's website at http://www.fcc.gov.
Synopsis of Fourth Report and Order
1. The Commission concludes that equipment is ``necessary for
interconnection or access to unbundled network elements'' within the
meaning of section 251(c)(6) of the Communications Act of 1934, as
amended (Communications Act or Act), and thus may be collocated without
an incumbent local exchange carrier's (incumbent LEC's) approval if, an
inability to deploy that equipment would, as a practical, economic, or
operational matter, preclude the requesting carrier from obtaining
interconnection or access to unbundled network elements as contemplated
in sections 251(c)(2) and 251(c)(3) of the Act. The Commission also
concludes that section 251(c)(6) allows a requesting carrier to
collocate any equipment necessary for obtaining equal interconnection
or nondiscriminatory access to unbundled network elements as
contemplated in sections 251(c)(2) and 251(c)(3). Applying the
statutory standard set forth in section 251(c)(2), the Commission
concludes that section 251(c)(6) allows the interconnecting carrier to
collocate any equipment necessary for interconnecting with the
incumbent LEC at a level equal in quality to that which the incumbent
obtains within its own network or the incumbent provides to any
affiliate, subsidiary, or other party. Similarly, applying the
statutory standard set forth in section 251(c)(3), the Commission
further concludes that section 251(c)(6) allows a requesting carrier to
collocate any equipment necessary for obtaining ``nondiscriminatory
access'' to an unbundled network element, including any of its
features, functions, or capabilities.
2. The Commission finds that multifunction equipment meets the
``necessary'' standard only if the primary purpose and function of the
equipment, as the requesting carrier seeks to deploy it, are to provide
the requesting carrier with ``equal in quality'' interconnection or
``nondiscriminatory access'' to one or more unbundled network elements.
The Commission also finds that, for purposes of determining whether a
piece of equipment is to be used primarily to obtain ``equal in
quality'' interconnection or ``nondiscriminatory access'' to one or
more unbundled network elements, there must be a logical nexus between
the additional functions the equipment would perform and the
telecommunication services the requesting carrier seeks to provide to
its customers by means of the interconnection or unbundled network
[[Page 43517]]
element. The Commission further finds that any function that would not
meet its equipment standard as a stand-alone function must not cause
the equipment to significantly increase the burden on the incumbent's
property. The Commission concludes, in addition, that switching and
routing equipment typically meets its equipment standard because an
inability to deploy that equipment would, as a practical, economic, or
operational matter, preclude a requesting carrier from obtaining
nondiscriminatory access to an unbundled network element, the local
loop. As a general matter, an incumbent LEC therefore must allow
requesting carriers to collocate switching and routing equipment. An
incumbent LEC, however, generally need not allow collocation of
traditional circuit switches, which are very large pieces of equipment
compared to newer, more advanced switching and routing equipment. The
Commission finds, in light of the practical, economic, and operational
availability of the relatively small switches and routers, that
traditional circuit switches generally do not meet its equipment
standard.
3. The Commission eliminates its previous requirement, adopted
pursuant to section 251(c)(6), that an incumbent LEC allow competitive
LECs to construct and maintain cross-connects outside of their
immediate physical collocation space at the incumbent's premises. The
Commission finds, however, that sections 201 and 251(c)(6) of the
Communications Act authorize it to require that an incumbent LEC
provision cross-connects between collocated carriers, and the
Commission requires that an incumbent LEC provide such cross-connects
upon reasonable request. The Commission finds that, in making available
a cross-connect offering, an incumbent LEC must provide the appropriate
cross-connect as requested by the collocated competitive local exchange
carriers (competitive LECs). The Commission notes that the
``appropriate'' cross-connect facility may constitute a ``lit'' service
or a dark fiber service depending upon the requirements of the two
collocated competitors. Where a collocator is requesting a cross-
connect pursuant to the Commission's action under section 201, it shall
provide a certification to the incumbent that more than ten percent of
the amount of traffic to be transmitted through the cross-connect will
be interstate. The Commission specifies that the incumbent LEC cannot
refuse to accept the certification, but instead must provision the
cross-connect promptly.
4. The Commission eliminates rules that gave carriers requesting
physical collocation the option of picking their physical collocation
space from among the unused space in an incumbent LEC's premises, that
precluded an incumbent LEC from restricting physical collocation to
space separated from space housing the incumbent's equipment, and that
precluded an incumbent from requiring the construction and use of a
separate entrance to access physical collocation space. In their place,
the Commission adopts new rules that establish principles to ensure
that the incumbent LEC's policies and practices in assigning and
configuring physical collocation space are consistent with the
statutory requirement that the incumbent provide for physical
collocation ``on rates, terms, and conditions that are just,
reasonable, and nondiscriminatory.'' The Commission also adopts
presumptions that will apply in evaluating an incumbent LEC's policies
and practices in these areas.
Final Regulatory Flexibility Analysis
5. As required by the Regulatory Flexibility Act (RFA), a
Supplemental Initial Regulatory Flexibility Analysis (Supplemental
IRFA) was incorporated in the Order on Reconsideration and Second
Further Notice of Proposed Rulemaking (Second Further NPRM) in CC
Docket 98-147, 65 FR 54527, September 8, 2000. The Commission sought
written public comment on the proposals in the Second Further NPRM,
including comment on the Supplemental IRFA. We received comments from
The Organization for the Promotion and Advancement of Small
Telecommunications Companies (OPASTCO) specifically directed toward the
Supplemental IRFA. These comments are discussed below. This Final
Regulatory Flexibility Analysis (FRFA) conforms to the RFA.
I. Need for, and Objectives of, the Fourth Report and Order
6. This Fourth Report and Order (Fourth Order) continues the
Commission's efforts to facilitate the development of competition in
telecommunications services. In the Advanced Services First Report and
Order, 64 F.R. 23229, April 30, 1999, the Commission strengthened its
collocation rules to reduce the costs and delays faced by carriers that
seek to collocate equipment at the premises of incumbent local exchange
carriers (incumbent LECs). In GTE v. FCC, the D.C. Circuit vacated
several of those rules and remanded the case to the Commission. In this
Fourth Order, we address the remanded issues and take additional steps
toward implementing Congress' goals in enacting section 251(c)(6) of
the Communications Act. Specifically, we adopt rule amendments that
more appropriately implement the balance reflected in the
Communications Act, between promoting competition and technological
innovation, and establishing limits on the scope of the intrusion
allowed into the incumbent LEC's property rights to avoid unnecessary
takings of such property. Nonetheless, through these amended rules, we
reaffirm our commitment to ensuring that facilities-based competitors,
including those that are small entities, have the incentive and ability
to invest in alternative infrastructure and innovative technologies,
while, at the same time, ensuring that incumbents retain similar
incentives and capabilities.
II. Summary of Significant Issues Raised by Public Comments in Response
to the Supplemental IRFA
7. In the Supplemental IRFA, we stated that any rule changes would
impose minimum burdens on small entities, including both
telecommunications carriers that request collocation and the incumbent
LECs that, under section 251(c)(6) of the Communications Act, must
provide collocation to requesting carriers. We also solicited comments
on alternatives to the proposed rules that would minimize the impact
that any changes to our rules might have on small entities. In their
comments, OPASTCO states that the Supplemental IRFA did not provide
``the flexibility necessary to accommodate the needs of small
[incumbent LECs] and their customers.'' OPASTCO also states that the
Supplemental IRFA does not specify the specific requirements that might
be imposed on small incumbent LECs or the extent to which those
requirements might burden small incumbent LECs. Finally, OPASTCO states
that the Supplemental IRFA failed ``to describe the `significant
alternatives' for small [incumbent LECs] that [were] presumptively
under consideration'' in this rulemaking. As noted above, OPASTCO filed
comments specifically directed to the Supplemental IRFA and to issues
that were raised in the NPRM but not addressed in this Fourth Order
which is limited to issues that the D.C. Circuit remanded. In making
the determinations reflected in the Fourth Order, we have considered
the impact of our actions on small entities.
[[Page 43518]]
III. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
8. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of entities that will be affected
by the rules. The RFA defines ``small entity'' as having the same
meaning as the term ``small business,'' ``small organization,'' and
``small governmental jurisdiction.'' In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act, unless the Commission has developed one
or more definitions that are appropriate to its activities. Under the
Small Business Act, a ``small business concern'' is one that: (1) is
independently owned and operated; (2) is not dominant in its field of
operation; and (3) meets any additional criteria established by the
Small Business Administration (SBA). In this Fourth Order, we take a
number of steps that may affect small entities that either provide or
obtain collocation pursuant to section 251(c)(6) of the Communications
Act. The requirements we adopt will require small incumbent LECs to
change their collocation practices. As Congress contemplated in
enacting section 251(c)(6), however, our collocation requirements
benefit small competitive local exchange carriers (competitive LECs) in
their efforts to compete against incumbent LECs in the provision of
telecommunications services, including advanced services. We believe
that, on balance, the benefits to small competitive LECs of our actions
in this Fourth Order far outweigh any burdens these place on small
incumbent LECs.
9. The most reliable source of information regarding the total
numbers of certain common carrier and related providers nationwide, as
well as the number of commercial wireless entities, appears to be data
the Commission publishes annually in its Carrier Locator report, which
encompasses data compiled from FCC Form 499-A Telecommunications
Reporting Worksheets. According to data in the most recent report,
there are 4,822 service providers. These carriers include, inter alia,
providers of telephone exchange service, wireline carriers and service
providers, LECs, interexchange carriers, competitive access providers,
and resellers.
10. We have included small incumbent LECs in this present RFA
analysis. A ``small business'' under the RFA is one that, inter alia,
meets the pertinent small business size standard (e.g., a telephone
communications business having 1,500 or fewer employees), and ``is not
dominant in its field of operation.'' The SBA's Office of Advocacy
contends that, for RFA purposes, small incumbent LECs are not dominant
in their field of operation because any such dominance is not
``national'' in scope. We have therefore included small incumbent LECs
in this RFA analysis, although we emphasize that this RFA action has no
effect on FCC analyses and determinations in other, non-RFA contexts.
11. Total Number of Telephone Companies Affected. The United States
Bureau of the Census (Census Bureau) reports that, at the end of 1992,
there were 3,497 firms engaged in providing telephone services, as
defined therein, for at least one year. This number contains a variety
of different categories of carriers, including local exchange carriers,
interexchange carriers, competitive access providers, cellular
carriers, mobile service carriers, operator service providers, pay
telephone operators, covered specialized mobile radio providers, and
resellers. It seems certain that some of these 3,497 telephone service
firms may not qualify as small entities or small incumbent LECs because
they are not ``independently owned and operated.'' For example, a
personal communications service (PCS) provider that is affiliated with
an interexchange carrier having more than 1,500 employees would not
meet the definition of a small business. It is reasonable to conclude
that fewer than 3,497 telephone service firms are small entity
telephone service firms or small incumbent LECs that may be affected by
the proposed rules, herein adopted.
12. Wireline Carriers and Service Providers. The SBA has developed
a definition of small entities for telephone communications companies
other than radiotelephone (wireless) companies. The Census Bureau
reports that there were 2,321 such telephone companies in operation for
at least one year at the end of 1992. According to the SBA's
definition, a small business telephone company other than a
radiotelephone (wireless) company is one employing no more than 1,500
persons. All but 26 of the 2,321 non-radiotelephone (wireless)
companies listed by the Census Bureau were reported to have fewer than
1,000 employees. Thus, even if all 26 of those companies had more than
1,500 employees, there would still be 2,295 non-radiotelephone
(wireless) companies that might qualify as small entities or small
incumbent LECs. The Commission does not have data specifying the number
of these carriers that are not independently owned and operated, and
thus are unable at this time to estimate with greater precision the
number of wireline carriers and service providers that would qualify as
small business concerns under the SBA's definition. Consequently, the
Commission estimates that fewer than 2,295 small telephone
communications companies other than radiotelephone (wireless) companies
are small entities or small incumbent LECs that may be affected by the
proposed rules, herein adopted.
13. Local Exchange Carriers. Neither the Commission nor the SBA has
developed a definition for small providers of local exchange service
(LECs). The closest applicable definition under the SBA rules is for
telephone communications companies other than radiotelephone (wireless)
companies. According to the most recent data, there are 1,395 incumbent
and other LECs. The Commission does not have data specifying the number
of these carriers that are either dominant in their field of
operations, are not independently owned and operated, or have more than
1,500 employees, and thus are unable at this time to estimate with
greater precision the number of LECs that would qualify as small
business concerns under the SBA's definition. Consequently, the
Commission estimates that fewer than 1,395 providers of local exchange
service are small entities or small incumbent LECs that may be affected
by the proposed rules, herein adopted.
14. Interexchange Carriers. Neither the Commission nor the SBA has
developed a definition of small entities specifically applicable to
providers of interexchange services (IXCs). The closest applicable
definition under the SBA rules is for telephone communications
companies other than radiotelephone (wireless) companies. According to
the most recent data, there are 204 carriers engaged in the provision
of interexchange services. The Commission does not have data specifying
the number of these carriers that are not independently owned and
operated or have more than 1,500 employees, and thus are unable at this
time to estimate with greater precision the number of IXCs that would
qualify as small business concerns under the SBA's definition.
Consequently, the Commission estimates that there are less than 204
small entity IXCs that may be affected by the proposed rules, herein
adopted.
15. Competitive Access Providers. Neither the Commission nor the
SBA has developed a definition of small entities specifically
applicable to competitive access services providers
[[Page 43519]]
(CAPs). The closest applicable definition under the SBA rules is for
telephone communications companies other than except radiotelephone
(wireless) companies. According to the most recent data, there are 349
CAPs and competitive LECs engaged in the provision of competitive local
exchange services. The Commission does not have data specifying the
number of these carriers that are not independently owned and operated,
or have more than 1,500 employees, and thus are unable at this time to
estimate with greater precision the number of CAPs that would qualify
as small business concerns under the SBA's definition. Consequently,
the Commission estimates that there are less than 349 small entity CAPs
providing competitive local exchange services that may be affected by
the proposed rules, herein adopted.
16. Resellers (including debit card providers). Neither the
Commission nor the SBA has developed a definition of small entities
specifically applicable to resellers. The closest applicable SBA
definition for a reseller is a telephone communications company other
than radiotelephone (wireless) companies. According to the most recent
data, there are 541 local and toll resellers engaged in the resale of
telephone service. The Commission does not have data specifying the
number of these carriers that are not independently owned and operated
or have more than 1,500 employees, and thus are unable at this time to
estimate with greater precision the number of resellers that would
qualify as small business concerns under the SBA's definition.
Consequently, the Commission estimates that there are fewer than 541
small local and toll resellers that may be affected by the proposed
rules, herein adopted.
17. Wireless Communications Services. This service can be used for
fixed, mobile, radiolocation and digital audio broadcasting satellite
uses. The Commission defined ``small business'' for the wireless
communications services (WCS) auction as an entity with average gross
revenues of $40 million for each of the three preceding years, and a
``very small business'' as an entity with average gross revenues of $15
million for each of the three preceding years. The SBA has approved
these definitions. The Commission auctioned geographic area licenses in
the WCS service. In the auction, there were seven winning bidders that
qualified as very small business entities, and one that qualified as a
small business entity. The Commission concludes that the number of
geographic area WS licenses affected includes these eight entities.
IV. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
18. The Fourth Order imposes nominal increases in projected
reporting, recordkeeping, and other compliance requirements. Both of
these changes affect small and large companies equally. First, the
Fourth Order requires a competitive LEC that is requesting incumbent-
LEC provisioned cross-connects pursuant to section 201 of the Act to
provide a short certification that the amount of interstate traffic to
be transmitted over the cross-connect constitutes more than ten percent
of all traffic transmitted over that cross-connect. This certification
requirement stems from jurisdictional considerations. Thus, it is not
possible to exempt small entities from compliance with the
certification requirement.
19. In the Fourth Order, the Commission requires that an incumbent
LEC must allow a requesting carrier to submit physical collocation
space preferences prior to assigning that carrier space. This will
enable the requesting carrier to request the space that best fits its
operational needs. We also amend our existing space report rule to
require that, upon request, an incumbent LEC must submit to the
requesting carrier a report describing in detail the space that is
available for collocation in a particular incumbent LEC premises. Thus,
the new rule requires more detailed information within a report that
already must be provided. A professional would likely prepare the
additional information in a limited period of time. To give the rule
any meaning, this report must be generated by small and large entities
alike. Otherwise, carriers requesting collocation at a small incumbent
LEC's facility would not have the all of the information available to
make an educated space preference request.
V. Steps Taken To Minimize Significant Economic Impact on Small
Entities and Significant Alternatives Considered
20. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
The establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.
21. In this Fourth Order, the Commission adopts collocation rules
in implementation of section 251(c)(6) of the Communications Act. These
rules respond to the D.C. Circuit's decision in GTE v. FCC, remanding
certain rules the Commission had adopted to implement that provision.
Our actions will affect both telecommunications carriers that request
collocation and the incumbent LECs that, under section 251(c)(6), must
provide collocation. As indicated above, both groups of carriers
include entities that, for purposes of this FRFA, are classified as
small entities. Neither section 251(c)(6) nor the D.C. Circuit decision
permits the Commission to exempt any incumbent LECs, including those
that are small entities, from their collocation obligations. Indeed,
section 10(d) of the Communications Act precludes the Commission from
forbearing from the application of section 251(c)(6) to any entity
prior to that section's full implementation, an event that has not yet
occurred.
22. In this Fourth Order, the Commission takes a number of steps
that may affect small entities that either provide or obtain
collocation pursuant to section 251(c)(6) of the Communications Act.
The requirements the Commission adopts will require incumbent LECs to
change their collocation practices. As Congress contemplated in
enacting section 251(c)(6), our collocation requirements benefit small
competitive LECs in their efforts to compete against incumbent LECs,
both large and small, in the provision of telecommunications services,
including advanced services. The Commission believes that, on balance,
the benefits to small competitive LECs of our actions in this Fourth
Order far outweigh any burdens the Fourth Order places on small
incumbent LECs.
23. As set forth more fully below, the Commission believes that our
actions in this Fourth Order are consistent with the RFA. Specifically,
as OPASTCO urges, the requirements the Commission adopts provide
substantial flexibility to incumbent LECs, including small incumbent
LECs, in implementing section 251(c)(6). See OPASTCO Comments at 6;
para. 3, supra. OPASTCO does not address directly any of the issues
remanded by the D.C. Circuit and thus does not raise any specific
alternatives we might consider in this Fourth Order. The Commission's
requirements, however, stop short of
[[Page 43520]]
allowing any incumbent LEC to act inconsistent with that statutory
provision. Any such action would be inconsistent with the requirements
of section 251(c)(6) and would upset the balance reflected in the
statute. Such action also would substantially burden competitive LECs,
including those that are small entities, in their efforts to compete
against incumbent LECs.
24. The record makes clear that, absent the adoption of rules
addressing the matters remanded by the D.C. Circuit, incumbent LECs
will impede requesting carriers' collocation efforts.
25. The Commission's actions in this Fourth Order should benefit
requesting carriers, many of which may be small entities, by reducing
barriers they encounter in seeking to compete effectively in the
provision of advanced services and other telecommunications services.
The Commission's actions seek to balance the property interests of the
incumbent LECs, including small incumbent LECs, with the public
interest in promoting innovation and competition. It is concluded that
rules that are more restrictive or less restrictive would not strike
the appropriate balance.
26. In this Fourth Order, the Commission adopts standards that
determine which competitive LECs, including small carriers, may
collocate equipment at incumbent LEC premises pursuant to section
251(c)(6). These standards provide that equipment is ``necessary for
interconnection or access to unbundled network elements'' within the
meaning of section 251(c)(6) if an inability to deploy that equipment
would, as a practical, economic, or operational matter, preclude the
requesting carrier from obtaining interconnection or access to
unbundled network elements as contemplated in sections 251(c)(2) and
251(c)(3). The Commission also finds that multifunction equipment meets
the ``necessary'' standard only if the primary purpose and function of
the equipment, as the requesting carrier seeks to deploy it, would be
practically, economically, or operationally necessary for that carrier
to obtain ``equal in quality'' interconnection or ``nondiscriminatory
access'' to one or more unbundled network elements. The Commission
rejects incumbent LEC and competitive LEC requests for alternative
equipment standards because we believe such standards would be
inconsistent with section 251(c)(6). The Commission also finds that
standards more favorable to the incumbent LECs would thwart competition
without significantly improving the interests of the incumbent LECs,
while standards more favorable to competitive LECs would not properly
take into consideration the property interests of the incumbent LECs.
Therefore, the Commission selects the alternative that best balances
the impact on each party, including small entities, and maximizes
benefits.
27. The Commission also concludes that switching and routing
equipment generally meets our equipment standard because an inability
to deploy that equipment would, as a practical, economic, and
operational matter, preclude a requesting carrier from accessing all
the features, functions, and capabilities of unbundled local loops. An
incumbent LEC therefore generally must allow requesting carriers to
collocate the relatively small switching and routing equipment that
technological advances have enabled manufacturers to develop. An
incumbent LEC, however, generally need not allow collocation of
traditional circuit switches, which are very large pieces of equipment.
The Commission finds, in light of the practical, economic, and
operational availability of the relatively small switches and routers
and the materially lesser burden collocation of these switches and
routers imposes on an incumbent's property interests, that traditional
circuit switches generally do not meet our equipment standard. The
Commission believes that this approach toward switching and routing
equipment furthers the purposes behind the RFA, because it allows small
competitive LECs flexibility in configuring their networks while
precluding the collocation of switching and routing equipment that
would infringe small incumbent LECs' property interests. It is noted
that any alternative that might allow a small incumbent LEC to
generally preclude the collocation of relatively small switches and
routers within its premises would violate the statutory mandate that
incumbent LECs, both large and small, provide for the collocation of
``necessary'' equipment.
28. In addition, in this Fourth Order, we eliminate the requirement
that, pursuant to section 251(c)(6), an incumbent LEC allow competitive
LECs to construct and maintain cross-connects outside of their
immediate physical collocation space at the incumbent's premises. The
Commission considered maintaining this requirement, but that
alternative would be inconsistent with the Communications Act and would
not properly take into consideration the property interests of the
incumbent LECs. The elimination of this requirement gives small
incumbent LECs flexibility that was not available under the
Commission's prior collocation rules.
29. The Commission finds that sections 201 and 251 of the
Communications Act provide statutory authority to require an incumbent
LEC to provision cross-connects between collocated carriers, and we
require that an incumbent LEC provide such cross-connects upon
reasonable request. The Commission considered not requiring incumbent
LECs to provision cross-connects between collocated carriers, but that
alternative would allow incumbent LECs to provide collocation to
competitive LECs in an unjust, unreasonable, and discriminatory manner.
It is noted that all incumbent LECs, including those that are small
carriers, cross-connect their own equipment within their premises.
Indeed, those premises are, by design, places where a carrier can
cross-connect equipment. The benefits to competition from requiring
that a small incumbent LEC provision cross-connects between collocators
within its premises far outweigh any additional burden such a
requirement may impose on that carrier. In addition, allowing a small
incumbent LEC to refrain from provisioning cross-connects between
collocated carriers would allow the incumbent to impose unreasonable
and discriminatory terms and conditions on collocators, in violation of
the Communications Act.
30. In this Fourth Order, the Commission eliminates the requirement
that incumbent LECs allow the requesting carrier to select its physical
collocation space from among the unused space in the incumbent's
premises as well as requirements constraining how incumbents LEC may
configure physical collocation space. The Commission now allows
incumbent LECs, in certain circumstances, to restrict physical
collocation to space separated from space housing the incumbent's
equipment and to require the construction and use of a separate
entrance to access physical collocation space. The Commission rejects
the alternative of retaining the prior rules, because they failed to
properly balance the congressional goal of promoting competition
against the need to protect an incumbent LEC's property interests
against unwarranted intrusion. The elimination of these prior rules
gives incumbent LECs, including small entities, flexibility that was
not previously available.
31. The Commission recognizes, however, that an incumbent LEC has
powerful incentives that, left unchecked, may influence it to allocate
[[Page 43521]]
space in a manner inconsistent with its statutory duty to provide for
physical collocation ``on rates, terms, and conditions that are just,
reasonable, and nondiscriminatory.'' Accordingly, the Commission
establishes specific principles that each incumbent LEC, including
those that are small carriers, must follow in assigning physical
collocation space. These rules are designed to ensure that incumbent
LECs, both large and small, act as neutral property owners and
managers, rather than as direct competitors of the carriers requesting
collocation, in assigning physical collocation space to requesting
carriers. Alternatives that would give a small incumbent LEC more
flexibility in assigning space might enable it to act unreasonably and
discriminatorily in violation of section 251(c)(6). Those alternatives
also would burden requesting carriers, including those that are small
carriers, by increasing the costs they incur in competing against
incumbent LECs. Therefore, for both statutory and public policy
reasons, the Commission does not adopt a different standard for
incumbent LECs that are small entities.
32. The Commission also rejects the alternative of allowing
incumbent LECs, including those that are small entities, to restrict
physical collocation to space separated from space housing the
incumbent's equipment and to require the construction and use of a
separate entrance to access physical collocation space in all
instances, because we find that such separation measures would be
unreasonable and discriminatory in certain circumstances. The
Commission concludes, for example, that an incumbent LEC may require
such separation measures only where legitimate security concerns, or
operational constraints unrelated to the incumbent's or any of its
affiliates' or subsidiaries' competitive concerns, warrant them. This
is consistent with the D.C. Circuit's recognition that alternatives
other than separation are sufficient to address incumbent LECs'
security concerns. To the extent small incumbent LECs encounter
security concerns or operational constraints that differ from those
incumbent LECs encounter, our rules permit small incumbent LECs to take
those differences into account in their space assignment and
configuration policies and practices.
VI. Report to Congress
33. The Commission will send a copy of the Fourth Order, including
this FRFA, in a report to be sent to Congress pursuant to the SBREFA.
In addition, the Commission will send a copy of the Fourth Order,
including the FRFA, to the Chief Counsel for Advocacy of the SBA. A
copy of the Fourth Order and the FRFA (or summaries thereof) will also
be published in the Federal Register.
Ordering Clauses
34. Pursuant to sections 1-4, 201, 202, 251-254, 256, 271, and
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-54,
201, 202, 251-54, 256, 271, and 303(r), that this Fourth Report and
Order is adopted.
35. Pursuant to sections 1-4, 201, 202, 251-54, 256, 271, and
303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151-54,
201, 202, 251-54, 256, 271, and 303(r), that Part 51 of the
Commission's rules, 47 CFR part 51, is amended, as set forth in Rule
Changes, and that those rule amendments shall become effective thirty
days after publication of the text or summary thereof in the Federal
Register, unless the FCC publishes a document in the Federal Register
to delay or withdraw them.
36. The Commission's Consumer Information Bureau, Reference
Information Center, SHALL SEND a copy of this Fourth Report and Order,
including the Final Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.
Final Paperwork Reduction Analysis
37. The action contained herein has been analyzed with respect to
the Paperwork Reduction Act of 1995 and found to impose new or modified
reporting and recordkeeping requirements or burdens on the public.
Implementation of these new or modified reporting and recordkeeping
requirements will be subject to approval by the Office of Management
and Budget (OMB) as prescribed by the Paperwork Reduction Act of 1995,
and will go into effect 30 days after publication in the Federal
Register, unless the FCC publishes a document in the Federal Register
to delay or withdraw them.
List of Subjects in 47 CFR Part 51
Communications, Common carriers, Collocation, Interconnection,
Unbundled network elements.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR Part 51 as follows:
PART 51--INTERCONNECTION
1. The authority for Part 51 continues to read as follows: Sections
1-5, 7, 201-05, 207-09, 218, 225-27, 251-54, 271, 332, 48 Stat. 1070,
as amended, 1077; 47 U.S.C. 151-55, 157, 201-05, 207-09, 218, 225-27,
251-54, 271, 332, unless otherwise noted.
2. Section 51.5 is amended by adding in alphabetical order a
definition of ``multi-functional equipment'' to read as follows:
Sec. 51.5 Terms and definitions.
* * * * *
Multi-functional equipment. Multi-functional equipment is equipment
that combines one or more functions that are necessary for
interconnection or access to unbundled network elements with one or
more functions that would not meet that standard as stand-alone
functions.
* * * * *
3. Section 51.321 is amended by revising paragraph (h) to read as
follows:
Sec. 51.321 Methods of obtaining interconnection and access to
unbundled elements under section 251 of the Act.
* * * * *
(h) Upon request, an incumbent LEC must submit to the requesting
carrier within ten days of the submission of the request a report
describing in detail the space that is available for collocation in a
particular incumbent LEC premises. This report must specify the amount
of collocation space available at each requested premises, the number
of collocators, and any modifications in the use of the space since the
last report. This report must also include measures that the incumbent
LEC is taking to make additional space available for collocation. The
incumbent LEC must maintain a publicly available document, posted for
viewing on the incumbent LEC's publicly available Internet site,
indicating all premises that are full, and must update such a document
within ten days of the date at which a premises runs out of physical
collocation space.
* * * * *
4. Section 51.323 is amended by revising paragraphs (b), (c), (e),
(f) introductory text, (h), (i) introductory text, and (k)(2) and
adding paragraphs (f)(7), (i)(4)(i) through (i)(4)(v), (i)(5), and
(i)(6)(i) through (i)(6)(iv) to read as follows:
Sec. 51.323 Standards for physical collocation and virtual
collocation.
* * * * *
(b) An incumbent LEC shall permit the collocation and use of any
[[Page 43522]]
equipment necessary for interconnection or access to unbundled network
elements.
(1) Equipment is necessary for interconnection if an inability to
deploy that equipment would, as a practical, economic, or operational
matter, preclude the requesting carrier from obtaining interconnection
with the incumbent LEC at a level equal in quality to that which the
incumbent obtains within its own network or the incumbent provides to
any affiliate, subsidiary, or other party.
(2) Equipment is necessary for access to an unbundled network
element if an inability to deploy that equipment would, as a practical,
economic, or operational matter, preclude the requesting carrier from
obtaining nondiscriminatory access to that unbundled network element,
including any of its features, functions, or capabilities.
(3) Multi-functional equipment shall be deemed necessary for
interconnection or access to an unbundled network element if and only
if the primary purpose and function of the equipment, as the requesting
carrier seeks to deploy it, meets either or both of the standards set
forth in paragraphs (b)(1) and (b)(2) of this section. For a piece of
equipment to be utilized primarily to obtain equal in quality
interconnection or nondiscriminatory access to one or more unbundled
network elements, there also must be a logical nexus between the
additional functions the equipment would perform and the
telecommunication services the requesting carrier seeks to provide to
its customers by means of the interconnection or unbundled network
element. The collocation of those functions of the equipment that, as
stand-alone functions, do not meet either of the standards set forth in
paragraphs (b)(1) and (b)(2) of this section must not cause the
equipment to significantly increase the burden on the incumbent's
property.
(c) Whenever an incumbent LEC objects to collocation of equipment
by a requesting telecommunications carrier for purposes within the
scope of section 251(c)(6) of the Act, the incumbent LEC shall prove to
the state commission that the equipment is not necessary for
interconnection or access to unbundled network elements under the
standards set forth in paragraph (b) of this section. An incumbent LEC
may not object to the collocation of equipment on the grounds that the
equipment does not comply with safety or engineering standards that are
more stringent than the safety or engineering standards that the
incumbent LEC applies to its own equipment. An incumbent LEC may not
object to the collocation of equipment on the ground that the equipment
fails to comply with Network Equipment and Building Specifications
performance standards or any other performance standards. An incumbent
LEC that denies collocation of a competitor's equipment, citing safety
standards, must provide to the competitive LEC within five business
days of the denial a list of all equipment that the incumbent LEC
locates at the premises in question, together with an affidavit
attesting that all of that equipment meets or exceeds the safety
standard that the incumbent LEC contends the competitor's equipment
fails to meet. This affidavit must set forth in detail: the exact
safety requirement that the requesting carrier's equipment does not
satisfy; the incumbent LEC's basis for concluding that the requesting
carrier's equipment does not meet this safety requirement; and the
incumbent LEC's basis for concluding why collocation of equipment not
meeting this safety requirement would compromise network safety.
* * * * *
(e) When providing virtual collocation, an incumbent LEC shall, at
a minimum, install, maintain, and repair collocated equipment meeting
the standards set forth in paragraph (b) of this section within the
same time periods and with failure rates that are no greater than those
that apply to the performance of similar functions for comparable
equipment of the incumbent LEC itself.
(f) An incumbent LEC shall provide space for the collocation of
equipment meeting the standards set forth in paragraph (b) of this
section in accordance with the following requirements:
* * * * *
(7) An incumbent LEC must assign collocation space to requesting
carriers in a just, reasonable, and nondiscriminatory manner. An
incumbent LEC must allow each carrier requesting physical collocation
to submit space preferences prior to assigning physical collocation
space to that carrier. At a minimum, an incumbent LEC's space
assignment policies and practices must meet the following principles:
(A) An incumbent LEC's space assignment policies and practices must
not materially increase a requesting carrier's collocation costs.
(B) An incumbent LEC's space assignment policies and practices must
not materially delay a requesting carrier occupation and use of the
incumbent LEC's premises.
(C) An incumbent LEC must not assign physical collocation space
that will impair the quality of service or impose other limitations on
the service a requesting carrier wishes to offer.
(D) An incumbent LEC's space assignment policies and practices must
not reduce unreasonably the total space available for physical
collocation or preclude unreasonably physical collocation within the
incumbent's premises.
* * * * *
(h) As described in paragraphs (1) and (2) of this section, an
incumbent LEC shall permit a collocating telecommunications carrier to
interconnect its network with that of another collocating
telecommunications carrier at the incumbent LEC's premises and to
connect its collocated equipment to the collocated equipment of another
telecommunications carrier within the same premises, provided that the
collocated equipment is also used for interconnection with the
incumbent LEC or for access to the incumbent LEC's unbundled network
elements.
(1) An incumbent LEC shall provide, at the request of a collocating
telecommunications carrier, a connection between the equipment in the
collocated spaces of two or more telecommunications carriers, except to
the extent the incumbent LEC permits the collocating parties to provide
the requested connection for themselves or a connection is not required
under paragraph (h)(2) of this section. Where technically feasible, the
incumbent LEC shall provide the connection using copper, dark fiber,
lit fiber, or other transmission medium, as requested by the
collocating telecommunications carrier.
(2) An incumbent LEC is not required to provide a connection
between the equipment in the collocated spaces of two or more
telecommunications carriers if the connection is requested pursuant to
section 201 of the Act, unless the requesting carrier submits to the
incumbent LEC a certification that more than 10 percent of the amount
of traffic to be transmitted through the connection will be interstate.
The incumbent LEC cannot refuse to accept the certification, but
instead must provision the service promptly. Any incumbent LEC may file
a section 208 complaint with the Commission challenging the
certification if it believes that the certification is deficient. No
such certification is required for a request for such connection under
section 251 of the Act.
[[Page 43523]]
(i) As provided herein, an incumbent LEC may require reasonable
security arrangements to protect its equipment and ensure network
reliability. An incumbent LEC may only impose security arrangements
that are as stringent as the security arrangements that the incumbent
LEC maintains at its own premises for its own employees or authorized
contractors. An incumbent LEC must allow collocating parties to access
their collocated equipment 24 hours a day, seven days a week, without
requiring either a security escort of any kind or delaying a
competitor's employees' entry into the incumbent LEC's premises. An
incumbent LEC may require a collocating carrier to pay only for the
least expensive, effective security option that is viable for the
physical collocation space assigned. Reasonable security measures that
the incumbent LEC may adopt include:
* * * * *
(4) Restricting physical collocation to space separated from space
housing the incumbent LEC's equipment, provided that each of the
following conditions is met:
(i) Either legitimate security concerns, or operational constraints
unrelated to the incumbent's or any of its affiliates' or subsidiaries
competitive concerns, warrant such separation;
(ii) Any physical collocation space assigned to an affiliate or
subsidiary of the incumbent LEC is separated from space housing the
incumbent LEC's equipment;
(iii) The separated space will be available in the same time frame
as, or a shorter time frame than, non-separated space;
(iv) The cost of the separated space to the requesting carrier will
not be materially higher than the cost of non-separated space; and
(v) The separated space is comparable, from a technical and
engineering standpoint, to non-separated space.
(5) Requiring the employees and contractors of collocating carriers
to use a central or separate entrance to the incumbent's building,
provided, however, that where an incumbent LEC requires that the
employees or contractors of collocating carriers access collocated
equipment only through a separate entrance, employees and contractors
of the incumbent LEC's affiliates and subsidiaries must be subject to
the same restriction.
(6) Constructing or requiring the construction of a separate
entrance to access physical collocation space, provided that each of
the following conditions is met:
(i) Construction of a separate entrance is technically feasible;
(ii) Either legitimate security concerns, or operational
constraints unrelated to the incumbent's or any of its affiliates' or
subsidiaries competitive concerns, warrant such separation;
(iii) Construction of a separate entrance will not artificially
delay collocation provisioning; and
(iv) Construction of a separate entrance will not materially
increase the requesting carrier's costs.
* * * * *
(k) * * *
(2) Cageless collocation. Incumbent LECs must allow competitors to
collocate without requiring the construction of a cage or similar
structure. Incumbent LECs must permit collocating carriers to have
direct access to their equipment. An incumbent LEC may not require
competitors to use an intermediate interconnection arrangement in lieu
of direct connection to the incumbent's network if technically
feasible. An incumbent LEC must make cageless collocation space
available in single-bay increments, meaning that a competing carrier
can purchase space in increments small enough to collocate a single
rack, or bay, of equipment.
* * * * *
[FR Doc. 01-20860 Filed 8-17-01; 8:45 am]
BILLING CODE 6712-01-P