United States: Headin’ Down The Copperhead Road – The FCC Proposes New Rules For Legacy Infrastructure

Although it could be said that the FCC's recent focus has been firmly fixed on the future, in particular IP-based communications (see, e.g., high-visibility proceedings involving the Open Internet, possible merger conditions in the Time Warner Cable-Comcast merger, the ongoing TDM to IP transitions, and the $44 billion (and counting) of bidding in the AWS-3 auction), in November the FCC proposed regulations to ensure that the transition to this IP-based world does not betray core values of the Communications Act:  public safety, consumer protection, and competition.1

Reacting to perceptions that some would have these networks quietly fade to black, the FCC in its recent NPRM cuts back to the Granddaddy of the U.S. electronic communications industry:  TDM-carrying copper.  The NPRM also explores the practical effects that the looming retirement of copper networks will have on those traditional values of the Communications Act, and proposes new regulations to cushion the blow from the accelerating IP transition to copper-reliant competitors and consumers while preserving the ability of incumbents to move to new advanced infrastructure.  As a result, the following groups have the most at stake in the developing proceeding and should consider making their voices heard through the notice and comment process:

  • Incumbent/IP Providers;
  • Competitive Providers; and
  • Enterprise customers, particularly small to medium sized businesses.

Safety. For years, virtually anyone in the U.S. could use a landline telephone to dial 911 during an emergency, even if the caller also was experiencing a power outage.  This is because copper wire (unlike coaxial cable or optical fiber) carries its own line power – that is, the line is powered all the way from the carrier's hub (typically protected by backup generators) to the customer premises equipment ("CPE").  Although commercial electrical power may be out at the caller site (and up the holler) during a power failure, the line power carried by copper networks continues to provide electricity to phones and other equipment.  This is not the case with phones and equipment on coaxial or fiber networks and it has been a major concern to consumers, public safety interests and policymakers for years.  Recognizing both the importance of facilitating voice calls during emergencies and the reality that over 37 million Americans receive voice service via IP or interconnected voice over IP ("VoIP"), the Commission proposes to implement backup power requirements for CPE used to provide fixed voice services.

The FCC proposes backup power requirements to afford "sufficient power for minimally essential communications," although providers would assume responsibility for provisioning power for only the first eight hours of an outage.  Given the logistical challenges of issuing new CPE to millions of customers in order to comply with this proposed rule, cable and other providers of interconnected VoIP services may want to consider participating in the proceeding to provide input as to how long such backup power requirements should last, as well as what constitutes "minimally essential communications" required to be maintained during power outages.

Copper Retirement.  Recognizing the benefits of next-generation fiber networks and that maintaining two separate networks would be burdensome for carriers, the Commission seeks to balance incumbents' imperative to transition to IP while simultaneously protecting consumers and competitors who rely on access to legacy copper networks.  Currently, entities retiring copper loops must only provide notice to interconnecting carriers through the Commission's network change notification procedures – prior approval is not required.  Although the Commission does not propose to change this notice-only process, it does seek to expand the contents of the required notice.  To address the concerns voiced by competitive carriers, the Commission proposes that companies retiring copper must provide a description of the expected impact of the planned retirement, including the price, terms, or conditions that will accompany the planned changes, notice of which must be provided to each interconnecting exchange service and certified to the Commission.

In another nod to the concerns voiced by competitive providers, the Commission seeks to define what constitutes a  "copper retirement."  Specifically, the Commission proposes that the term also apply to the feeder and subloop portions of an incumbent's local loop (which respectively connect an incumbent's central office to a local distribution facility and the local distribution facility to a customer's premises).  Without access to these portions of incumbent loops, obtaining access to the remaining portion of the loop would foreclose competitive access.  Given the FCC's continued emphasis on promoting competition, this proposal is not surprising.

In the same spirit, the Commission also seeks comment on including the "de facto" retirement of copper in the scope of its larger retirement rules.  Essentially, the FCC – like the Sheriff coming round in the middle of the night – wants to know if nefarious activities are going on under the cover of darkness; in this case, if incumbent carriers are simply letting their aging copper facilities deteriorate to the point that it becomes "necessary" to replace the copper with fiber.  The Commission is clearly concerned about these allegations of anticompetitive behavior on the part of the incumbent providers.  If incumbents do not allow the competitive providers access to critical feeder loops, or they permit their copper to deteriorate, competitive providers' ability to reach their customers may be compromised.

Interestingly – based on a suggestion by AT&T –  the NPRM also suggests an alternative: that the Commission could facilitate a sale or auction (not at the Mason's Lodge) of retired copper directly to competitive providers, and seeks comment on exactly what role (if any) it should have in this process.   Given the opportunities presented by the possible mass sale of retired copper, competitive providers interested in acquiring these facilities should strongly consider commenting on this proposal to provide input on the possible conditions for such sale, as well as the extent of the role the FCC should play in such a transaction.

As with many important regulatory and policy initiatives, unintended and unforeseen consequences not raised in the NPRM seem likely.  For example, assuming that this renewed regulatory focus produces significant actual plant removal and retirements, one consequence would seem to be that space on ILEC and electric-company poles and in underground conduit networks would become available for new fiber installations and other current technologies.

As a result, multiple (and in some cases unused) bundles of thick twisted-pair, particularly that occupy two or three feet (or more) of usable pole space, or multiple ducts of underground conduit networks will become available for ILEC, and competitor use, lowering a potentially prohibitive entry barrier.  Indeed, the presence of long-dead copper on poles and in ILEC conduit networks over the years has been a boon to ILECs by preventing outright new competitive deployments or freighting them with higher entry costs.

Likewise, competitive stakeholders (such as cable operators and fiber-based competitors) should be attuned to possible ILEC incentives to shift or "back-door" to competitors copper network removal costs through make-ready, "safety audits" and similar measures.  Removal costs for non-trivial portions of these copper networks could be particularly high depending on their locations and even the materials.  For example, much legacy copper still is attached to poles enclosed in lead-jacketed bundles which raises worker-safety and environmental concerns, not to mention high removal costs.  Competitive providers reliant on access to these legacy copper networks – and the small to medium sized businesses that are the primary customers of these legacy, enterprise services – should consider filing comments highlighting the importance of securing continued access to all parts of an incumbent's copper network.

Consumer Protection.  Interconnecting parties are not the only group that the Commission believes require protection during the copper retirement process: the Commission proposes to require carriers retiring copper to directly notify their end-user, retail customers (via email or postal mail).  The proposed notice requirement also would extend to providing the retail customer with information as to whether or not the customer will still be able to purchase their existing service (with the same functionalities and features) from the provider, or if not, then the provider must identify the changes to the service that will be forthcoming.

Equivalent Wholesale Access.  The FCC's concern relating to the preservation of competitive providers' access to last-mile infrastructure pervades the NPRM.  Competitive providers often enter into long-term contracts to serve enterprise customers because they can rely on equivalent wholesale access to ILEC copper networks.  To address these concerns, the Commission proposes requiring incumbent carriers to provide competitive providers wholesale access on equivalent rates, terms, and conditions, although it also asks for comment on the seemingly less stringent (but undefined) "reasonably comparable" standard.  The FCC asks for comment on the specific services and functions to which this mandate should apply, as well as some basic ground rules to establish the guidelines that will govern the discontinuance of wholesale legacy services.

For example, the FCC asks for comment on adoption of the following six principles – advanced by Windstream – that would apply to the evaluation of any legacy-replacement service offered to wholesale customers:  (i) price per Mbps shall not increase; (ii) wholesale rates shall not exceed retail rates; (iii) basic service pricing shall not increase; (iv) bandwidth shall not be reduced; (v) no "backdoor" price increases; and (vi) no impairment of service delivery or quality.  The basis for the FCC's oversight of discontinued TDM services (and the transition to replacement IP-based services) will be rooted in the authority of Section 214 of the Communications Act, and grants of discontinuance applications made under Section 214 may be conditioned on providing such equivalent access to competitive providers.

Competitive providers' concerns stemming from legacy infrastructure retirements have the FCC's full attention – and the FCC is clearly concerned about maintaining and fostering competition and choices for the last-mile or network edge.  Given the continuing  importance of the last-mile, the FCC's retirement proceeding affirmatively puts into play a host of issues that will be of interest to a variety of stakeholders and is likely to produce a host of foreseen and unforeseen practical consequences for such stakeholders who may want to weigh in on the Commission's proposals.

Comments will be due on February 5th, with replies due on March 7th.  If you have any questions about these issues, please contact Sheppard Mullin's communications attorneys.

Footnote

1 In the Matter of Ensuring Customer Premises Equipment Backup Power for Continuity of Communications, Notice of Proposed Rulemaking and Declaratory Ruling, PS Docket No. 14-174, FCC 14-185, ¶49, (rel. Nov. 25, 2014) (the "NPRM"), a copy of which is available here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Events from this Firm
31 Jan 2019, Other, Los Angeles, United States

Invites you to join us for a private cooking class hosted by Parties that Cook!

31 Jan 2019, Conference, Los Angeles, United States

The Southern California Association of Corporate Counsel's In-House Counsel Conference

6 Feb 2019, Other, Los Angeles, United States

Please join Sheppard Mullin for cocktails & hors d'oeuvres during The Wind Power Finance & Investment Summit 2019

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions