FCC Docket 05-25: FCC Special Access Data Request is Still on Hold

By Andrew Regitsky, President, Regitsky & Associates

It’s been a long eight months since the FCC issued its request for the massive amount of data that will enable it to conduct a market analysis of the special access industry and determine if the special access rates of ILECs need to be re-regulated. Eight months later and we continue to get nowhere fast! As you may remember, the Commission turned over day-to-day control of the data request to its Wireline Bureau. That Bureau will decide when the data will be filed and if any modifications are needed as the data is analyzed and the market analysis proceeds. 

Currently, according to the Commission, “[the] Bureau is working diligently to implement the [data] collection, which is contingent on the Office of Management and Budget’s (OMB) approval per the Paperwork Reduction Act (PRA). The Bureau expects to begin collecting data towards the end of this year or early next year after OMB approval.”

Since submission of the data is required before the industry can provide comments to the Commission to aid the market analysis, and since comments were due on August 19, 2013, those comments have had to be delayed.  Therefore, industry comments on the special access data are now due on March 19, 2014, while reply comments are due on April 30, 2014.  Of course those dates will likely change.  

While the Bureau waits for OMB approval before proceeding, industry lobbying on special access proceeds unabated. ILECs continue pushing the Commission to consider not just the special access services currently provided by competitors today in the market analysis, but also include the new sources of supply that competitors have planned or that are likely to become available going forward. ILECs also argue that there should be no special exemptions for particular types of competitors such as cable companies who claim that it would be a hardship to supply much of the data. Cable companies are legitimate special access competitors that are expanding their existing networks and deploying new technologies to serve the rapidly growing demand for broadband and other advanced services for enterprise customers.

ILEC competitors continue to argue for immediate FCC action on special access. Level 3 claims that price cap ILECs have a dominant market position for a wide range of special access services. It asks the Commission to limit ILEC use of demand lock-up arrangements that tie purchases for products subject to competition to purchases for non-competitive services and also limit contracts that trade commitments of a high percentage of existing expenditures for price discounts or other favorable conditions. These anticompetitive practices limit buyer choice, narrow the available market for sellers, deter construction of new competitive facilities and generally obstruct the development of a competitive marketplace.

The industry should expect to provide special access data to the Bureau within the next six months. Any modifications to ease the data requirements will probably be minimal since the more data the Commission has, the easier it will be to defend against the inevitable court appeal. 

The required data will likely be for 2013 special access services to ensure that the data be as recent as possible. Small carriers especially must ensure they have a firm understanding of special access if they are to appropriately respond to the data request. The clock is ticking on special access customers and suppliers.

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