XIII. Reporting Requirements
Several types of reports are expressly addressed in DIVCA. These reports are as follows: (i) reports used for the collection of the user fee (Public Utilities Code § 443), (ii) annual employment reports (Public Utilities Code § 5920); and (iii) annual broadband and video service reports (Public Utilities Code § 5960).
As indicated in the OIR, we further recognize that additional reports may be necessary for enforcement of specific DIVCA provisions. For example, we need reports on free service delivered to community centers in order to enforce Public Utilities Code § 5890(b)(3).
This section seeks to impose reporting requirements in a straightforward and reasonable way that is not unduly burdensome. Accordingly, we review parties' comments on reports proposed in the OIR, and we make modifications to the reports as needed.
A. Position of Parties
Comments on proposed reporting requirements are mixed. On the one hand, consumer organizations support our proposed annual reporting requirements, and one even offers recommendations for ways to enhance them. On the other hand, multiple communications companies greatly protest our proposed reporting requirements.
CCTPG/LIF proposes a number of additional reporting requirements. First, CCTPG/LIF recommends that the Commission require submission of detailed build-out data. CCTPG/LIF states that companies should be "required to submit this information for every community they plan to provide service in" (at a census block basis), and "the specific technology offered should be reported."469 CCTPG/LIF asserts that this more detailed information is particularly important to determining whether "franchisees are making substantial and continuous efforts to meet the anti-discriminatory build-out requirements of § 5890."470 State video franchise holders' reports, according to CCTPG/LIF, should be made public, or at least made available to non-market participant intervening parties.471 Second, CCTPG/LIF urges the Commission to require communications companies to report on "the number of women and minorities in various job titles."472 Third, CCTPG/LIF states that the Commission may seek reports on whether state video franchise holders are complying with customer protection standards.473
CCTPG/LIF also endorses the Commission's proposed reporting requirements regarding provision of free service to community centers. According to CCTPG/LIF, "[u]nless this information on free service to community centers is reported to the Commission there is no way for the Commission to know if the law is being adhered to."474 CCTPG/LIF adds that "actual locations of community centers should be reported as part of the . . . report of information on service to community center."475
DRA argues that the Commission has the authority to require additional reports consistent with DIVCA. DRA explains that "it is necessary that the Commission be able to obtain information above and beyond that which is specifically enumerated in [DIVCA] in order to fulfill its statutory duties under" the Act.476
TURN maintains that "the information detailed in the G.O. is precisely the kind of information discussed in the statute."477 In particular, TURN declares that "the information required for reporting purposes including any additional information the Commission deems `legitimate' is precisely the data necessary for the Commission to fulfill its statutory responsibilities. Anything less makes a mockery of the authority delegated to the Commission by the Legislature."478
BBIC praises the OIR's proposed reporting requirements. In particular, BBIC applauds our "emphasis on census tract rather than the zip code methodology. . . ."479 BBIC contends that "absence of sufficient data" may be the chief limitation on the government's ability to address the Digital Divide.480
In contrast to these consumer organizations, Verizon opposes many of the reporting requirements proposed in the OIR. First, Verizon argues that elements of our proposed broadband and video reporting requirements "result in unjustified expansion of the Act."481 To remedy this "unjustified expansion," Verizon proposes that we permit approximation of all broadband data, and it states we should not require any showing that this approximation is necessary and appropriate.482 Second, Verizon asks that we permit low-income information to be reported as of January 1, 2007.483 Verizon reasons that this allowance is consistent with the statute and gives state video franchise holders a "known, identifiable, and constant target in assessing their build and deployment plans."484
Verizon further emphasizes "the need for confidentiality in a market where new entrants compete with established players."485 According to Verizon, "DIVCA is easily harmonized with existing law by allowing submitting parties to assert confidentiality at the time information is submitted, and rely on such treatment unless and until the Commission orders otherwise."486 Verizon, in particular, asserts that we should acknowledge the possibility that we may need to alter the presentation of aggregated broadband and video data included in reports to the Governor and Legislature.487 "Although the aggregated data presented in the report[s] will in all likelihood not be competitively sensitive," Verizon reasons that "it is possible that some information will be deemed competitively sensitive."488
Verizon also clarifies that it "offers service in the geographical areas reached by its wirecenters," rather than by whole census tracts.489 Accordingly, Verizon asks that the Commission recognize that "the boundaries of wireless centers will frequently bisect census tracts."490
While not objecting to a community center reporting requirement, Verizon maintains that "any additional reports should be used sparingly."491 It declares that "the potential for other future reports would not seem to be objectionable so long as they are requested for legitimate reasons consistent with the Act."492
AT&T argues that we do not have the ability to require additional reports: "AB 2987 provides for specified reporting in sections 5920 and 5960; the Commission may not impose any other reporting requirements."493 In particular, AT&T contests our proposal to require reporting of community center data. According to AT&T, "AB 2987 does not grant the Commission authority to require community center reporting, and AT&T California objects to such expanded reporting because provision of data would reveal competitive data."494
AT&T also contests several features of our proposed broadband and video reporting requirements. First, AT&T contends that we should not request information on the extent to which a broadband provider uses different technologies to provide broadband access. AT&T asserts that DIVCA "requires only a statement without quantification of the amount of each of the various technologies provided, which would be much less burdensome . . ." and would avoid "potential ambiguities regarding how to count and compare various technologies."495 Second, AT&T argues that that the Commission should allow approximation of all categories of broadband and video data496. According to AT&T, "the intent was always that holders of video franchises could approximate all categories of information required by section 5960."497 AT&T adds that it "would be irrational to permit approximating for just broadband availability when all of the categories in the report are in one way or another subsets of each other. . . ."498 Third, AT&T maintains that "it is important to accord trade secret protection" to the broadband and video reports and all other information provided pursuant to reporting requirements of DIVCA.499
In addition, AT&T clarifies that "there are instances in which AT&T California's telephone service area only partially covers a census block group."500 AT&T plans to only offer video service within its telephone footprint, and accordingly, it requests that the Commission "indicate that this approach is acceptable."501
Finally, AT&T raises concerns regarding our employment reporting requirements. It states that "requiring the parent company to hold the franchise would create . . . illogical employment reporting. AT&T California's ultimate parent company does not have any employees that would work directly on the provision of video services. . . ."502
Small LECs states that the "Commission should not categorically preclude build-out data from being marked as confidential . . . ."503 First, Small LECs argues that "data need not qualify as confidential under Section 5960 to be deemed confidential. . . . If it qualifies for confidential treatment under the Commission's existing rules, it should be treated as" confidential.504 Second, Small LECs asserts that "the Commission's statements that build-out data will not be granular cannot be squared with the discussion of build-out requirements for providers with less than one million customers."505 Small LECs notes that "smaller providers have no set build-out requirements, so the type of information that might be required from them is not yet established."506 Thus, Small LECs urges the Commission to "not prejudge the confidentiality status of build-out data that has not yet been identified."507
With respect to our proposal regarding submission of workplace diversity data, Small LECs argues that the "EEO-1 `Employment Information Report' should only be provided for applicants who are currently required to submit the report."508 "Under 29 C.F.R. § 1602.7," Small LECs points out that "the requirement to file form EEO-1 applies only to employers with `100 or more employees.' Since many of the smaller LECs do not have 100 or more employees, many of them do not currently file this form."509
SureWest states that the Commission should not reserve "broad authority to collect any information it deems necessary": "Subjecting video providers to unlimited obligations to produce information to the Commission sounds precisely like an attempt to regulate video providers as though they were public utilities. . . ."510
With respect to user fee reports, SureWest asks the Commission to modify requirements for holders to submit quarterly subscriber information.511 It argues that the Commission should provide more time to submit the quarterly information or "preferably, conform its process to that used by local franchising entities."512 SureWest encourages the Commission to allow state video franchise holders to "pay the user fee and provide the number of subscribers with the fee payment."513
SureWest also raises multiple issues regarding our proposed broadband and video reporting requirements. First, SureWest argues that community center reporting requirements should only apply to larger video providers. SureWest explains that "the clear intent of the Franchise Act was to limit this requirement to those holders or their affiliates with more than 1,000,000 telephone customers in California."514 Second, SureWest protests how we define "telephone service area." SureWest asserts that it should not be required to report on the number of households encompassed by its Certificate of Public Convenience and Necessity (CPCN), because SureWest does "not serve most of those areas and certainly should not be required to report on the number of households outside its actual service area. Rather, applicants should be reporting on the number of households where they or their affiliates actually provide service."515
Moreover, SureWest claims that "requiring smaller providers to gather data on a census tract basis is an obvious defect in the Franchise Act."516 Attributing this "defect" to "insufficient vetting," SureWest alleges that reporting information on a census tract basis would require "massive alterations" to its billing database and would force the company "to incur significant costs."517 SureWest even questions whether "such changes could be effected."518 Nevertheless, SureWest "does not object to the proposed General Order with respect to its implementation of the census tract requirement. . . ."519 SureWest reiterates that it is appropriate for the Commission to "follow the letter of the law when adopting its rules."520 To the extent SureWest takes issue with law, SureWest states that it will propose "clean-up" legislation.521
In contrast to SureWest, CCTA does not question whether the Commission's annual broadband and video reporting requirements can be fulfilled. CCTA states that "the requirement to report on the basis of census tracts can be met."522 According to CCTA, "unless the holder also currently collects funds from the California High Cost Fund-B (CHCF-B) (which requires collection of data using census block group information, which can be "rolled up" into census tracts), the holder will necessarily have to purchase or develop the systems to correlate the holder's customer street address data to add the ability to comply with the census tract requirement."523 Thus, the primary operational issue is just the "expense to the holder of a state franchise."524
CCTA focuses more on its argument that "the Commission must allow for confidential treatment of the information."525 It argues that the Legislature acknowledges the confidential nature of the required information in its requirements that the data submitted be aggregated and be disclosed to the public only as provided by Public Utilities Code § 583.526
B. Discussion
This section assesses parties' divergent comments on the proposed reporting requirements. The reporting requirements include (i) user fee reports, (ii) employment reports, (iii) broadband and video service reports, (iv) antidiscrimination and build-out reports, and (v) additional reports necessary for our enforcement of specific DIVCA provisions.
Public Utilities Code § 443(a) allows the Commission to "require a video service provider . . . to furnish information and reports to the commission, at the time or times it specifies, to enable it to determine" the user fee. Pursuant to this statutory authority, the OIR tentatively concluded that the user fee should be based on subscribership, and it called for state video franchise holders to submit quarterly video subscribership reports in support of this fee system.
As discussed in Section XII, we now conclude that user fees subsequent to Fiscal Year 2007-2008 should be based on annual gross state video franchise revenues, as defined in Public Utilities Code § 5860(d). In order to complete the alignment of the video user fee process with processes followed for other utilities subject to Commission jurisdiction, the Commission now will calculate user fees annually. This calculation will be based upon annual reports of each state video franchise holder's gross state video franchise revenue. These reports will be due to the Commission no later than April 1 of each year following the calendar year upon which the report is based.
Although we have substantially altered our user fee reporting requirements, some of AT&T and SureWest's arguments remain applicable in this context. We discuss each of these parties' comments in turn.
First, we find value in Verizon's and AT&T's contention that we should recognize "the need for confidentiality in a market where new entrants compete with established players."527 Currently state video franchise revenues are not publicly disclosed: The video revenue-related data AT&T and other similarly situated companies provide to the FCC are not separately broken out from other unregulated services. Given the sensitivity of this nonpublic revenue data, we will release individual state video franchise holder's annual state video franchise revenue data only if we determine that the disclosure of the data is made as provided for pursuant to Public Utilities Code § 583.528
Second, we decline to adopt SureWest's recommendation to modify our reporting requirements to permit state franchise holders to submit user fees and the data upon which the fees are based at the same time. We could not determine a state video franchise holder's pro rata payment unless the base number of all state video franchise holders' subscribers (or other applicable criterion) is known. Under our new fee system, the fee payment would necessarily be nothing more than a guess if the state video franchise holder were allowed to submit the amount of its gross intrastate revenues along with its fee payment. The state video franchise holder would not know the ratio of its gross intrastate revenues to the amount of total gross intrastate revenues received by state video franchise holders.
We further note that the procedures for reporting, setting, and receiving user fees closely track the user fee procedures currently used by California telecommunications carriers. Thus, we do not anticipate implementation problems arising from these long-standing procedures. Any exceptional procedures, such as those proposed by SureWest, are unnecessary.
Public Utilities Code § 5920 imposes specific employment reporting requirements that direct state video franchise holders with more than 750 California employees to report upon the number and types of jobs held by their employees in California.529 Additionally state video franchise holders must provide projections of new hires expected an upcoming year.530
We decline to modify implementing regulations proposed by the OIR. No parties challenge the substance of these proposed reporting requirements, which closely adhere to the text of Public Utilities Code § 5920.
Despite AT&T's and Verizon's requests, we do not afford confidential treatment to this employment data.531 To do so would violate the express language of DIVCA. Public Utilities Code § 5920(b) requires the Commission to make "the information required to be reported by holders of state franchises . . . available to the public on its Internet Web site." Unlike annual broadband and video reports produced pursuant to Public Utilities Code § 5960, DIVCA does not direct that our employment reports aggregate information provided by state video franchise holders; instead, these reports are supposed to convey "information . . . reported by holders" without any further stipulation. The Legislature could have imposed an aggregation requirement, but it chose not to here. Thus, we find it is most consistent with the statute to make individual reports submitted pursuant to Public Utilities Code § 5920 available to the public.
We addressed concerns related to requiring the parent company to hold the state video franchise in Section V above.
Public Utilities Code § 5960 requires state video franchise holders to produce detailed annual reports on broadband and video services. While we recognize that a video service area may only cover parts of certain census tracts, statutorily required deployment and subscribership data nonetheless must be submitted on a census tract basis.
These broadband and video reporting requirements fulfill a number of statutory purposes. We do not consider the requirements to only be build-out reporting requirements, as a number of parties do.532 That interpretation too narrowly construes the purpose of the annual broadband and video reports. The Legislature intended for DIVCA to "[c]omplement efforts to . . . close the digital divide," and possessing broadband and video data also will enable us to support a variety of voluntary efforts to increase broadband adoption.533
This section discusses parties' issues regarding these important annual broadband and video services reporting requirements. We address parties' comments on an issue-by-issue basis below.
To the greatest extent possible, we seek to attain broadband and video data that cleanly falls within census tracts. This approach is most consistent with DIVCA reporting requirements and DIVCA's stated policy objectives.
The plain language of the DIVCA reporting requirements does not allow state video franchise holders to elect to approximate most broadband and video services data submitted to the Commission. With the exception of § 5960(a),534 Public Utilities Code § 5960 expressly directs state video franchise holders to report broadband and video data on a "census tract basis."535
With respect to policy, BBIC rightly recognizes that the "absence of sufficient data" may be the chief limitation on the government's ability to address the Digital Divide in a meaningful and targeted way.536 With sufficient data, California has the information it needs to address broadband access gaps (by technology type) and depressed usage rates. For example, the Commission could map areas where broadband access is unavailable and use these maps to craft incentives to encourage competitive entry into unserved markets.
The value of broadband and video data is enhanced when correlated with U.S. Census demographic information (reported by census tract). Then, we will know where broadband is offered, and what regions, or populations, are most likely to take advantage of the technology. Moreover, we anticipate that state video franchise holders will combine U.S. Census data and video and broadband availability data in order to establish compliance with Public Utilities Code §§ 5890(b)(1)-(2) (non-discrimination provisions) and 5960(b)(3)(ii) (reporting requirements), both of which require state video franchise holders to determine the percentage of low-income households offered access to their services.
We, however, do not seek to ask the impossible. As supported by AT&T's and SureWest's comments, we recognize that it may be difficult for state video franchise holders and their affiliates to report information on households that the companies merely pass, rather than serve.537 A communications company may not have a database of all households that it is capable of serving. Thus, we will deem data on broadband and video availability to be collected "on a census tract basis" if a company uses a geocoding application that assigns its potential customers' addresses in the manner prescribed in Appendix D.
Subscribership data does not require similar accommodations. As recognized by CCTA, communications companies maintain billing databases that include subscriber addresses, and any company may "purchase or develop the systems to correlate the holder's customer street address data to add the ability to comply with the census tract requirement."538 Moreover, a communications company collecting CHCF-B funds likely already has such systems in place.539 We, therefore, require subscribership data to be based upon customers' individual addresses. These addresses shall be geocoded to specific, corresponding census tracts or other census units that nest within census tracts.
Regarding broadband data required by Public Utilities Code § 5960(B)(1)(A), we decline to alter our assessment of when a state video franchise holder may elect to approximate data reported on a "census tract basis." The statute provides that this approximation is allowed only if the state video franchise holder (i) "does not maintain this information on a census tract basis in its normal course of business" and (ii) the alternate reporting methodology "reasonably approximate[s]" census tract data." Despite Verizon's protests,540 our requiring a showing that these conditions are met is both reasonable and explicitly supported by the text of DIVCA.
As called for by CCTPG/LIF, we plan to make aggregated broadband and video data available to the public. 541 Public Utilities Code § 5960(c) requires the Commission to submit annually "to the Governor and the Legislature a report that includes based on year-end data, on an aggregated basis, [broadband and video] information submitted by holders . . . ." Thus, we will publish availability and adoption statistics combined for all reporting broadband providers.
Any release of more granular data (e.g., data for individual technologies used) will be subject to Commission discretion pursuant to Public Utilities Code § 583. AT&T, CCTA, SureWest, and Verizon rightly recognize that the Commission should allow for confidential treatment of broadband and video services data.542 Thus, we modify the General Order to clarify that we will release non-aggregated annual broadband and video data only if we determine that disclosure of these data is provided for pursuant to Public Utilities Code § 583.543
AT&T and CCTPG/LIF dispute how much detail the Commission should require of broadband and video data. AT&T prefers less detail; CCTPG/LIF seeks more detail. We find merit only in CCTPG/LIF's requests.
AT&T's proposal to scale back our broadband reporting requirements runs contrary to the statute. While the language of Public Utilities Code § 5960(b)(1)(C) is subject to dispute, the express principles underlying DIVCA convince us that we should interpret the statute to require quantification of broadband technologies offered.544 The Legislature stated that, among other objectives, it intended for DIVCA "promote the widespread access to the most technologically advanced cable and video services to all California communities" and "complement efforts to increase investment in broadband infrastructure."545 To ensure that we are indeed promoting access to "the most technologically advanced" services, we need information on the form of technology used.
In contrast, we find there is merit in CCTPG/LIF's request that we better define the type of video technology reported to the Commission. CCTPG/LIF rightly observes that DIVCA build-out requirements only apply to certain types of video service.546 Accordingly, we modify our video reporting requirements so that they require submission of data on the specific type of video service access at issue in Public Utilities Code § 5890.
Also we join CCTPG/LIF in its concern that "customers in low-income communities" may be "offered inferior technology."547 This result would be contrary to the Legislature's intent that DIVCA will (i) "promote the widespread access to the most technologically advanced cable and video services" and (ii) "complement efforts to increase investment in broadband infrastructure and close the digital divide."548 We also note that the statute expects that state video franchise holders will demonstrate "a substantial and continuous" effort to meeting build-out requirements.549 Given that parties have not evaluated the import of these statutory provisions in detail, Phase II of this rulemaking will consider whether the Commission needs additional, more detailed broadband and video information for enforcement of specific DIVCA provisions.
We modify the draft General Order to require low-income household information that utilizes the most recent U.S. Census projections available as of January 1, 2007. Upon further review, we find that this requirement is most consistent with the definition of "low-income household" found in Public Utilities Code § 5890(j)(2).550 Also defining low-income household in this manner will ensure that the data collected will be useful for assessing compliance with Public Utilities Code § 5890.551 Public Utilities Code § 5890(b) establishes low-income build-out requirements that are benchmarked upon household income available as of January 1, 2007.552
Appendix E to this decision clarifies our expectations regarding submission of U.S. Census data. This Appendix describes what U.S. Census data may be submitted to fulfill various demographic reporting requirements.
Pursuant to Public Utilities Code § 5960(b)(2), a state video franchise holder must provide video availability data on households in its "telephone service area." DIVCA, however, does not define "telephone service area."
The OIR defined "telephone service area" as area where the Commission has granted an entity a Certificate of Public Convenience and Necessity (CPCN) to provide telephone service. We decline to alter this definition of "telephone service area." We find that our decision to use a company's CPCN to define its telephone service area is most consistent with DIVCA. Although the statute does not provide an explicit definition of a "service area," we note that the statute considers a "video service area footprint" to be an area "that is proposed to be served."553 Likewise, our proposal, by relying on a company's CPCN, effectively defines a telephone service area as the area that has been proposed to be served by a telecommunications provider.
We also note that employing this definition will benefit the Commission, while imposing little burden on SureWest and other CLECs. To the extent a company does not have customers in a region, the company need only collect and report updated U.S. Census demographic data for that region. Having ready access to data on where a company is, and is not, serving will help us determine whether a state video franchise holder is providing service in a nondiscriminatory manner.
4. Information for Antidiscrimination and Build-Out Assessments
To be able to enforce the antidiscrimination and build-out provisions, we must be able to determine whether a state video franchise holder fulfills its build-out requirements.554 We also need to be prepared to judge whether a state video franchise holder has made a "substantial and continuous effort" to meet the build-out requirements.555 This latter evaluation is critical to our decision as to whether to grant a state video franchise holder an extension for fulfilling its build-out requirements.
Reports on video availability will allow the Commission to gauge whether a state video franchise holder has made a "substantial and continuous effort" to meet the build-out requirements established by Public Utilities Code § 5890.556 The Commission, therefore, shall require state video franchise holders to submit annual reports on video service offered, both to California households generally and to low-income households specifically. State video franchise holders will be required to provide these data on a census tract basis. Details on the standards used for these reports are outlined in Section XIII.B.3.
The OIR imposed additional build-out reports to ensure that statutorily specified state video franchise holders provide free service to community centers in underserved areas, at a ratio of at a ratio of one community center for every 10,000 video customers.557 Only three parties comment on the substance of the OIR's proposed community center reporting: AT&T opposes the reporting, CCTPG/LIF supports the reporting, and Verizon neither supports nor opposes the reporting.558 Of these three parties, we agree most with CCTPG/LIF. We recognize that it is necessary to require information on individual community centers provided free service pursuant to Public Utilities Code § 5890(b)(3). The consumer organization rightly points out that "[u]nless this information on free service to community centers is reported to the Commission there is no way for the Commission to know if the law is being adhered to."559 We adopt reporting requirements, like this one, if they mandate reports that are necessary for enforcement of specific DIVCA provisions.
In contrast, SureWest focuses on applicability of the community center requirements. It argues that the Legislature did not intend for Public Utilities Code § 5890(b)(3) - or related enforcement measures - to apply to state video franchise holders that alone, or in conjunction with their affiliates, have less than one million California telephone customers.560 Upon review of Public Utilities Code § 5890(b), we agree with SureWest's reading of the statute.561 We, therefore, modify the community center reporting requirement so that it only applies to state video franchise holders that alone, or in conjunction with their affiliates, have more than one million California telephone subscribers.
Like AT&T, Small LECs, and Verizon we find that it is reasonable to allow for confidential treatment of build-out data, just as we allow for confidential treatment of data required by Public Utilities Code § 5960.562 Build-out data present competing confidentiality concerns. On the one hand, build-out data may be just (if not more) granular than data afforded special confidentiality protections in Public Utilities Code § 5960.563 On the other hand, restricting public access to build-out data might unduly impede external stakeholders' ability to monitor compliance with build-out requirements. We conclude that it is appropriate to balance these concerns on a case-by-case basis. Accordingly, we modify the General Order to clarify that we will release individual state video franchise holder's build-out data only if we determine that the disclosure of the data is made as provided for pursuant to Public Utilities Code § 583. 564
Section XV explains that we have the authority to take actions necessary for our enforcement of specific DIVCA provisions. Despite AT&T's and SureWest's protests to the contrary, we hold that this authority extends to our ability to impose additional reporting requirements.565 We, like DRA, find that "it is necessary that the Commission be able to obtain information above and beyond that which is specifically enumerated in [DIVCA] in order to fulfill its statutory duties under" the Act.566
We, however, also heed Verizon's words of caution. Verizon is correct that "any additional reports should be used sparingly."567 We will require production of new reports only if they are truly necessary for the enforcement of specific DIVCA provisions under our regulatory authority. Thus, we do not require new reports suggested by CCTPG/LIF.568 We find that ordering new proposed reports on workplace diversity and customer service, while desirable for public policy reasons, is outside the scope of our statutory authority.
With respect to workplace diversity in particular, we conclude that there are other means of ensuring that we are informed about state video franchise holders' employment practices. Most notably, we find that state video franchise holders can participate voluntarily in Commission diversity efforts, such as the outstanding efforts of the California Utilities Diversity Council (CUDC).569 Established under the leadership of President Michael Peevey, CUDC pursues diversity in five major areas: governance; customer service and marketing; philanthropy; procurement; and employment. CUDC reports on its results to the Commission at a daylong hearing held each fall. The Commission is pleased to see marked progress in every area by our CUDC participants. We expect that in the near future state video franchise holders, like CUDC participants, will provide data regarding governance; customer service and marketing; philanthropy; procurement; and employment.
If it declines to provide workplace diversity data equivalent to that of other CUDC members, we will require a state video franchise holder that submits Employment Information Report EEO-1 (EEO-1) filings to the federal Department of Labor to provide us copies of these future filings. An EEO-1 form is attached as Appendix F. EEO-1 reports include data on race and gender of workers by job category. For multi-establishment employers, we expect that state video franchise holders subject to this requirement will provide us EEO-1 reports that describe workplace diversity of the parent company as a whole, as well as diversity of its California affiliates in particular.
Unlike requiring a new report, we find that requesting copies of EEO-1 filings places a minimal burden upon state video franchise holders. We are merely requesting a copy of reports that are already produced.570 Moreover, all company-specific reports and company-specific information received from these filings to the Commission will be kept confidential. We only will release aggregate video industry data at the statewide level.
Finally, we conclude that a collective bargaining reporting requirement is necessary for the enforcement of DIVCA labor provisions. If a state video franchise is being transferred, we must be aware of existing collective bargaining agreements to ensure, pursuant to Public Utilities Code § 5970(b), that the transferee agrees to respect any such preexisting agreement. Collective bargaining provisions are discussed in greater detail in Section VI above.
469 CCTPG/LIF Opening Comments at 11; CCTPG/LIF Reply Comments at 4-5.
470 CCTPG/LIF Opening Comments on the PD at 6.
471 CCTPG/LIF Opening Comments at 11; CCTPG/LIF Reply Comments on the PD at 3.
472 CCTPG/LIF Opening Comments at 12. CCTPG/LIF also calls upon the Commission to subject all video franchise holders to Public Utilities Code § 8281 et seq. (requiring a plan for increasing women, minority, and disabled veteran business enterprises) and General Order 156 (which establishes minimum long-term goals for the percentage of enterprises owned by minorities, women, and disabled veterans). Id.
473 Id. at 8.
474 CCTPG/LIF Reply Comments at 5.
475 CCTPG/LIF Opening Comments on the PD at 6.
476 DRA Reply Comments at 9.
477 TURN Reply Comments at 10.
478 Id.
479 BBIC Reply Comments at 2.
480 Id.
481 Verizon Opening Comments at 19.
482 Id. at 19-20.
483 Id. at 20.
484 Id. at 20-21.
485 Verizon Reply Comments on the PD at 1.
486 Id. at 1.
487 Verizon Opening Comments at 22.
488 Id. at 21.
489 Verizon Opening Comments on the PD at 11.
490 Id.
491 Verizon Opening Comments at 22.
492 Id.
493 AT&T Reply Comments at 15.
494 AT&T Opening Comments at 9.
495 Id. at 8.
496 AT&T Reply Comments at 18.
497 Id.
498 Id. at 19.
499 Id. at 17-18.
500 AT&T Opening Comments on the PD at 5.
501 Id. at 6.
502 AT&T Opening Comments at 8.
503 Small LECs Opening Comments on the PD at 10.
504 Id.
505 Id.
506 Id.
507 Id.
508 Id. at 6.
509 Id.
510 SureWest Opening Comments at 15-16.
511 Id. at 19.
512 Id.
513 Id.
514 Id. at 13.
515 Id. at 12.
516 Id. at 16.
517 Id.
518 Id.
519 Id. at 17.
520 Id.
521 Id.
522 CCTA Opening Comments at 13.
523 Id. CCTA adds that the "final GO reporting requirements should also make clear that the broadband reporting obligations extend only to areas served under the state-issued franchise(s) of a video service provider. Id. at 13, n.7.
524 Id. at 13.
525 Id. at 14.
526 Id. at 13.
527 Verizon Reply Comments on the PD at 1. See also AT&T Reply Comments at 17-18 (calling upon the Commission to accord "trade secret protection" to information provided pursuant to the reporting requirements of AB 2987).
528 See Cal. Pub. Util. Code § 5960(d) ("All information submitted to the commission and reported by the commission pursuant to this section shall be disclosed to the public only as provided for pursuant to Section 583.").
529 Id. at § 5920(a)(1)-(3).
530 Id. at § 5920(a)(4).
531 See AT&T Reply Comments at 17-18 (asking for confidential treatment for all information provided pursuant to reporting requirements of DIVCA); Verizon Reply Comments on the PD at 1 (similarly recognizing the need for confidential treatment of a wide variety of data submitted pursuant to DIVCA).
532 See, e.g., CCTPG/LIF Opening Comments at 11 (characterizing video data required pursuant to Public Utilities Code § 5960 as "build-out data").
533 Cal. Pub. Util. Code § 5810(a)(2)(E).
534 Id. at § 5960(a) (allowing approximation only for certain broadband availability data).
535 Id. at § 5960(b) ("Every holder . . . shall report to the commission on a census tract basis . . . .").
536 BBIC Reply Comments at 2.
537 AT&T Reply Comments at 19; SureWest Opening Comments at 16.
538 CCTA Opening Comments at 13.
539 See id. (recognizing that CHCF-B "requires collection of data using census block group information, which can be `rolled up' into census tracts").
540 Verizon Opening Comments at 19-20.
541 CCTPG/LIF Opening Comments at 11 (stating that "reports should be made available to the public so that the public can assess the progress that is being made").
542 AT&T Reply Comments at 17-18; CCTA Opening Comments at 13-14; SureWest Reply Comments on the PD at 4; Verizon Opening Comments at 21-22.
543 See Cal. Pub. Util. Code § 5960(d) ("All information submitted to the commission and reported by the commission pursuant to this section shall be disclosed to the public only as provided for pursuant to Section 583.").
544 Public Utilities Code § 5960(b)(1)(C) requires state video franchise holders to provide information on "[w]hether the broadband provided by the holder utilizes wireline-based facilities or another technology." Given this language, it is unclear whether the requirement for information on "the broadband provided" means that the state video franchise holder only needs to indicate what technologies it uses to provide service in a given census tract, or if it means that the state video franchise holder must quantify how much it uses various technologies to provide broadband to households in a given census tract.
545 Cal. Pub. Util. Code § 5810(a)(2)(B); id. at § 5810(a)(2)(E).
546 CCTPG/LIF Opening Comments on the PD at 5. See Cal. Pub. Util. Code § 5890(j)(4) ("`Access' means that the holder is capable of providing video service at the household address using any technology, other than direct-to-home satellite service, providing two-way broadband Internet capability and video programming, content, and functionality, regardless of whether any customer has ordered service or whether the owner or landlord or other responsible person has granted access to the household. If more than one technology is utilized, the technologies shall provide similar two-way broad band Internet accessibility and similar video programming.").
547 CCTPG/LIF Opening Comments on the PD at 6. See CCTPG/LIF Opening Comments at 11 (suggesting that we require state video franchise holders to submit information on specific technologies used in the offering of broadband services); CCTPG/LIF Reply Comments at 4-5 (recommending the broadband data be submitted at a census block level).
548 Cal. Pub. Util. Code § 5810(a)(2).
549 See id. at § 5890(f)(4) (allowing the Commission to grant an extension of build-out requirements only if the state video franchise holder demonstrates a "substantial and continuous effort" to meet its build-out requirements).
550 Id. at § 5890(j)(2) ("'Low income household' means those residential households located within the holder's existing telephone service area where the average annual household income is less than $35,000 based on the United States Census Bureau estimates adjusted annually to reflect rates of change and distribution through January 1, 2007.").
551 See Verizon Opening Comments at 20 (arguing that this "information provides holders a known, identifiable, and constant target in assessing their build and deployment plans").
552 Cal. Pub. Util. Code § 5890(b) (providing specified state video franchise holders a set amount of time by which to build out their networks so that a designated percentage of households with access to their service qualify as "low-income households").
553 Id. at § 5840(e)(6).
554 See id. at § 5890 (imposing build-out requirements on state video franchise holders).
555 Id. at § 5890(f)(4).
556 Id. at § 5890(f)(4).
557 See id. at § 5890(b)(3) (requiring this provision of free service to community centers in underserved areas).
558 AT&T Opening Comments at 9; CCTPG/LIF Reply Comments at 5; Verizon Opening Comments at 22.
559 CCTPG/LIF Reply Comments at 5.
560 SureWest Opening Comments at 13.
561 See Cal. Pub. Util. Code § 5890(b) (only requiring "Holders or their affiliates with more than 1,000,000 telephone customers in California" to provide free service to community centers).
562 AT&T Reply Comments at 17-18; Small LECs Opening Comments on the PD at 10; Verizon Reply Comments on the PD at 1.
563 Indeed, data on individual locations of community centers receiving free service is equivalent to "individually identifiable customer information," which Public Utilities Code § 5960(d) prohibits from being publicly disclosed. Also Small LECs are correct to note that it is unclear what, if any additional, build-out data may be required to enforce build-out requirements that we have yet to establish for state video franchise holders that alone, or in conjunction with their affiliates, have less than one million telephone customers. Small LECs Opening Comments on the PD at 10.
564 See Cal. Pub. Util. Code § 5960(d) ("All information submitted to the commission and reported by the commission pursuant to this section shall be disclosed to the public only as provided for pursuant to Section 583.").
565 See AT&T Reply Comments at 15 (arguing that the Commission does not have the authority to require reports other than those specified in Public Utilities Code §§ 5920 and 5960); SureWest Opening Comments at 15-16 (stating that the Commission's asserting the authority to require further reports suggests that the Commission is seeking to regulate video service providers like public utilities).
566 DRA Reply Comments at 9. See also TURN Reply Comments at 10 (stating that it would be "a mockery of the authority delegated to the Commission" if the Commission failed to request additional data needed for enforcing DIVCA).
567 Verizon Opening Comments at 22.
568 See CCTPG/LIF Opening Comments at 8, 12 (recommending expanded reporting requirements).
569 Although "video service providers are not public utilities or common carriers," we expect that state video franchise holders' voluntary participation in CUDC nonetheless would be valuable. Cal. Pub. Util. Code § 5810(a)(3).
570 We, like Small LECs, recognize that it is inappropriate to require state video franchise holders with less than one hundred employees to file a form they do not already produce. Small LECs Opening Comments on the PD at 6.
