3. Additional Data Reporting

DIVCA requires that state video franchise holders report certain broadband and video data to the Commission on an annual basis. As noted in D.07-03-014, DIVCA's broadband and video reporting requirements fulfill a number of statutory purposes. The Commission determined that the Legislature intended such reporting requirements to assist the Commission with its effort under DIVCA to close the digital divide and support a variety of voluntary efforts to increase broadband adoption, in addition to our efforts to enforce video build-out and non-discrimination requirements.¹⁶

At issue here is whether the Commission needs additional, more detailed reporting of data in order to carry out the "express legislative intent to (1) promote widespread access to technologically advanced cable and video services, and (ii) complement efforts to increase investment in broadband infrastructure and close the digital divide."¹⁷

In Phase I of this rulemaking, the Commission considered the extent to which it could impose reporting requirements on video franchise holders in addition to those specifically listed in DIVCA, and determined that it could, stating:

...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. [footnote omitted.] 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.¹⁸

In the following discussion, we summarize the positions of the commenters as to whether, and what, additional data should be reported. Then, we explain our decision to adopt one additional requirement, namely, the number of video customers that a state video franchise holder is serving.

3.1 Positions of the Parties

Eight parties responded to the Scoping Memo's invitation to comment on whether the broadband and video data currently being collected by the Commission is sufficient for the Commission to carry out its responsibilities under DIVCA.¹⁹ The five parties who provide telephone and/or video programming services, and who are either holders of state video franchises now or may be in the future (Verizon California Inc., AT&T California, SureWest TeleVideo, Small LECs, and CCTA) all take the position that the data currently being provided is sufficient.²⁰ Parties representing consumer interests all argue that the current data requirements are not sufficient, and that additional information either regarding the technology being used to provide video or broadband services, pricing, and/or video subscribership should, among other things, be required.

AT&T California asserts that additional data requirements "would be burdensome and go beyond the intent and scope"of DIVCA; that increased competition, not close regulation of video franchise holders, is what will accomplish DIVCA's goals; that additional data requirements would be tantamount to utility regulation; and that Section 5840(a) prohibits any additional data requirements.²¹ As AT&T California indicates, these are arguments it has made previously in this rulemaking.²² Indeed, it was precisely these arguments that the Commission already considered and rejected in the Phase I Decision, when it determined that "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," as quoted more fully above. We need not relitigate the issue here.

SureWest TeleVideo also again argues that any additional reporting requirements would be improper, stating "[i]f anything, this legislative intent is an argument against additional reporting requirements,"²³ and that "[l]ooking to broad statements of legislative intent as a basis for authority to invoke reporting requirements beyond those explicitly created in DIVCA would violate Section 5820(c)."²⁴ SureWest TeleVideo's position on this, like that of AT&T California, was rejected by the Commission in D.07-03-014.

3.2 Adopted Addition to Data Reporting Requirements

We disagree that the imposition of further reporting requirements violates DIVCA. However, we agree generally with the comments of current or potential providers of video programming and broadband services that DIVCA intends video programming and broadband services to be offered in a competitive environment, and that the Commission should avoid imposing additional data requirements that impose a heavy burden on service providers yet do not assist the Commission in carrying out its role.

DRA has proposed that "...data collection should be expanded to include...service pricing by market and/or census tract."²⁵ However, DIVCA makes clear that we have no jurisdiction over pricing issues.²⁶ Thus, we decline at this time to require any pricing information for video or data services.

Although Greenlining and Joint Consumers request that the Commission require additional data regarding specific broadband and video technologies being used and the data speeds being offered for broadband services, we also decline to require such additional reporting. We expect that technologies being used and data speeds will rapidly change as competitive forces drive providers to invest constantly in new technology and increase data speeds in response to consumer demand.

On the other hand, we are persuaded that we should require state video franchise holders to report the number of video customers by census tract in addition to the number of households that are offered video service, as was urged by DRA. DIVCA prohibits both discrimination and the denial of access to any group of potential customers because of income in the area in which they reside. Pub. Util. Code § 5890(a). We believe that subscribership data will be useful for ensuring enforcement of the non-discrimination and build-out provisions of Section 5890.

AT&T California, SureWest Televideo, and Small LECs argue that the requirement for a state video franchise holder to make a substantial and continuous effort to meet build-out requirements, which was mentioned in the Scoping Memo, does not authorize additional data reporting on a regular basis, as the state video franchise holder has the burden of demonstrating such effort only when seeking an extension, pursuant to Section 5890(f), of time to comply with those requirements. AT&T California states that "If and when a franchise holder seeks such an extension, the franchise holder will bear the burden of showing a `substantial and continuous' effort, but DIVCA provides no authority to require all holders to make this showing at all times."²⁷ SureWest TeleVideo claims that it "would be an abuse of discretion, therefore, to rely on this standard to create a reporting requirement that applies regardless of whether a provider seeks such an extension."²⁸

We do not rely on the need for the Commission to monitor whether a "substantial or continuous effort" is taking place in deciding to require state video franchise holders to report the number of video customers they serve. While Section 5890(f) allows the holder, under certain circumstances, to be granted an extension of time to comply with Sections 5890(b), (c), or (e), as appropriate, it does not provide for an extension of time to comply with the non-discrimination requirements of Section 5890(a). Should a holder fail to meet the requirements of Section 5890(b) or (c), seek an extension of these DIVCA provisions, or indeed be granted an extension under Section 5890(f), the Commission, upon complaint or upon its own motion, needs to evaluate a holder's compliance with Section 5890(a). We believe that video subscriber data will be necessary information for the Commission so that it can determine whether to initiate action on its own motion to enforce Section 5890(a). To the extent that franchise holders assert that this is competitively sensitive information, we reiterate that under Section 5960(d), we may provide for confidential treatment of this information.

¹⁶ See generally, D.07-03-014, mimeo, at text accompanying notes 527-70.

¹⁷ Scoping Memo at p. 4. In order to carry out its monitoring responsibilities related to the build out requirements under Pub. Util. Code § 5890, Communications Division staff has proposed Resolution T-17107, adding a question to the video franchise application documents to ascertain whether an applicant (or applicant's affiliate(s)) who are providing telephone service are predominantly deploying fiber optic facilities to their customers' premises. Such information is necessary to know whether Section 5890(e)(1) or (e)(2) is applicable. This proposed change does not impact the annual reporting requirements discussed here.

¹⁸ D.07-03-014, mimeo, at pp. 145-146 (note omitted).

¹⁹ Scoping Memo at p. 5.

²⁰ See, e.g., Small LECs, Opening Comments at p. 4 ("Imposing additional reporting requirements on participants in a competitive marketplace adds compliance costs for carriers, thereby reducing resources that should more appropriately be directed at the investment intended by the Legislature"); Verizon Reply Comments, at p. 2 ("Moreover, as pointed out by several parties, DIVCA recognizes that the path to greater availability of advanced services is through competition, not reporting").

²¹ AT&T California, Opening Comments at pp. 1-3.

²² AT&T California, Opening Comments at pp. 2-3 ("As AT&T California has previously noted, these requirements are both broader, and more granular than authorized by DIVCA") and n.16 (citing four filings in which AT&T California has previously made this argument).