5. The FCC Has Rules in Place

The FCC has rules in place that require ILECs to provide notice of proposed action to remove copper loops. Those rules are found at 47 C.F.R. 51.333 et seq. We do not express an opinion on whether those rules are adequate for all potential future copper retirement, but do summarize them here.

The FCC rules give competitors that lease lines from an ILEC proposing to remove copper facilities the right to file objections to gain time to smoothly transition service. Under these rules, ILECs planning to retire copper loops that have been replaced with a FTTH or FTTC loop must comply with the network disclosure requirements set forth in 47C.F.R. 51.325-51.335.³⁴ These rules provide that ILECs must provide public notice or planned changes at the "make/buy point."³⁵ The make/buy point, in this instance, is the time at which an ILEC decides to replace copper loops within its network with fiber facilities.³⁶ The notice requirement depends on when the planned change can be implemented after the make/buy point. The ILEC must give notice within 12 months of the make/buy point except:

(1) If the changes can be implemented within 12 months of the make/buy point, public notice must be given at the make/buy point but at least six months before implementation.

(2) If the changes can be implemented within six months of the make/buy point, public notice may be given pursuant to the short-term notice procedures provided in 51.333.³⁷

The short term notice requirements under 47C.F.R. 51.333 require public notice if the ILEC wishes to implement the planned network changes less than six months after public notice.³⁸ In this case, the ILEC must serve a copy of its public notice upon each telephone exchange service provider that directly interconnects with the ILEC's network at least five business days in advance of its filing with the FCC.³⁹ Under the FCC's rules for notice of replacement of copper loops or copper subloops with FTTH or FTTC loops, the FCC requires that notices shall be given within a minimum of 90 days of such change.⁴⁰ Notices of replacement of copper loops or subloops with FTTH or FTTC loops shall be deemed approved on the 90th day after release of the FCC's public notice of the filing, unless an objection is filed.⁴¹

An information service provider or telecommunications service provider that directly interconnects with the ILEC's network may file objections to an ILEC's notice.⁴² These objections must be filed with the FCC and served on the ILEC no later than the ninth business day following the release of the FCC's public notice.⁴³ The objecting party must clearly set forth reasons why it cannot accommodate the ILEC's changes by the date stated in the public notice and must indicate any specific technical information required that would enable the objector to accommodate those changes.⁴⁴ Further, the objector must list steps that it is taking to accommodate the planned retirement and state the earliest possible date (not to exceed six months from the original date given in the public notice) by which the objector anticipates it can accommodate the proposed retirement.⁴⁵ It must also provide an affidavit stating that the objection is reasonable and not being submitted for purposes of delay.⁴⁶

The ILEC shall have until no later than the 14th business day following the release of the public notice to file a response to the objection with the FCC and serve the response on all parties that filed objections.⁴⁷ If an objection is filed, the FCC will issue an order determining a reasonable public notice period.⁴⁸

Under the FCC's rules, ILECs must provide a minimum of 90 days of notice to CLECs that will be directly affected by planned copper retirement.⁴⁹ Further, ILECs must notify affected CLECs directly if they plan to implement the retirement in fewer than six months. Thus, while the FCC rules do not allow a CLEC to prevent a proposed retirement, the rules do give affected CLECs notice and information regarding the planned retirements. Moreover, as discussed above, the FCC noted that it expected the carriers to work together to maintain access to the facilities.

The FCC's website also lists the number of copper retirement notices that have been filed with the FCC.⁵⁰ Since January 1, 2006, there have been over
250 notifications of proposed copper retirements by ILECs throughout the country, although the number in California is small. Despite these numerous notifications, filed pursuant to the FCC's rules, commenters in this proceeding failed to submit any evidence that CLECs or consumers have been harmed in any way as a result of these copper retirements. The Commission believes that there would be at least some evidence of harm if copper retirement posed the significant threat to competition, customers, and safety that CLECs claim, and if the FCC's rules were inadequate to protect against this threat.

³⁴ 47 C.F.R. § 51.325(a)(4).

³⁵ 47 C.F.R. § 51.331(b).

³⁶ Id.

³⁷ 47 C.F. R. § 51.331(a).

³⁸ 47 C.F. R. § 51.333(a).

³⁹ Id.

⁴⁰ 47 C.F.R. § 51.333(b)(2).

⁴¹ Id.

⁴² 47 C.F.R. § 51.333(c).

⁴³ Id.

⁴⁴ Id. at (c)(1).

⁴⁵ Id. at (c)(2) and (3).