3. Parties' Positions
3.1. CALTEL
CALTEL asserts that copper telecommunications facilities (including loops, subloops, feeder facilities and "drops," as defined below) are or will soon be used for an array of advanced, high-speed communications services including Digital Subscriber Line (DSL), high-definition video, video on demand, voice over Internet protocol, and "Ethernet over copper." CALTEL argues that if the ILECs that own the copper decide to remove or retire copper facilities, competitors will be unable to use the facilities to offer high-speed services that compete with ILECs' services. CALTEL points out that competitors will not have access to substitute fiber facilities that the ILECs install in place of copper, because the Federal Communications Commission (FCC) has ruled that when ILECs replace copper with fiber optic cable, ILECs are not required to give competitors access to fiber to provide high speed services. The only portion of fiber that ILECs must share is the narrowband portion that facilitates voice-grade telephone service.
CALTEL therefore asks that we develop two types of rules governing ILEC retirement of copper facilities. First, it asks for procedural rules that would set forth a process which the ILECs must follow before removing copper plant. Second, CALTEL seeks substantive rules that would restrict ILECs from retiring or permanently removing copper facilities under certain circumstances.
CALTEL asserts that in its TRO order,5 the FCC explicitly left open for state commission consideration the adoption of rules governing the retirement of copper facilities:
We stress that we are not preempting the ability of any state commission to evaluate an incumbent LEC's retirement of its copper loops to ensure such retirement complies with any applicable state legal or regulatory requirements. We also stress that we are not establishing independent authority based on federal law for states to review incumbent LEC copper loop retirement policies. We understand that many states have their own requirements related to discontinuance of service, and our rules do not override these requirements.6
Thus, CALTEL asserts, the FCC granted this Commission express authority to consider whether state law, rules or procedures exist or should exist to govern ILEC retirement of copper facilities. CALTEL asks us to act on its petition at the earliest possible time.
CALTEL also asserts that leaving copper in the network provides redundancy necessary during natural and man-made disasters and other outages. The copper-based network has its own source of electricity emanating from the central office, they maintain, and therefore provides security in an era where disasters seem to be ever more prevalent.
3.2. ILECs
The ILECs oppose the petition on several grounds. First, they7 claim the FCC has already adopted adequate procedural rules for giving notice of copper plant retirement and, further, that additional rules would run counter to FCC precedent. The ILECs note that the FCC is already considering a similar petition and that comity dictates that we wait for the FCC to act. Concurrent with these arguments, they assert that the FCC has precluded states from granting competitive carriers access to fiber optic facilities, and that by considering rules to prohibit removal of copper facilities, we would be making an end run around those FCC restrictions.
Second, the ILECs question the need for rules governing permanent removal or retirement of copper facilities, stating that both the FCC and this Commission have expressed a preference for facilities-based competition. They argue that requiring ILECs to retain all copper loops so that competitive carriers have access to them will forestall installation of competitive facilities.
Third, the ILECs maintain that they are not removing copper loops, and therefore assert that rules are unnecessary. While Verizon removes "drops" leading from its outside plant (poles or underground conduit) to the network interface device (NID) on the side of the home to facilitate installation of its new fiber optic network named FiOS, it will replace the drop if the customer so requests.8 The "drop" is not part of the local loop, Verizon asserts. It is not retiring any part of the local loop except in "rare circumstances" that do not warrant our intervention, and has no current plans for mass retirement of facilities.
AT&T, SureWest and the Small LECs also assert that CALTEL's petition is a solution in search of a problem, as they are not retiring copper loops, and have no current plans to do so.
Fourth, the ILECs question the mechanics of any rule that requires that they leave copper facilities in the network. If they migrate away from such facilities and no longer need them, they question who will pay the substantial sum necessary to maintain such the facilities.
Fifth, the ILECs disagree fundamentally with CALTEL's claim that the copper network enhances security in the event of disaster or other outage. Most fiber and copper facilities occupy the same space underground or on poles, and therefore an outage affecting the fiber network would also take copper facilities out of service. Thus, they maintain, even if they were removing the copper network, it would have no discernable effect on safety or security.
Finally, the ILECs maintain that our rules governing Petitions for Rulemaking prohibit us from opening a rulemaking if we have acted on the same issues within a year of the petition's filing. We address this issue below, but disagree that we are barred from taking the present action.
3.3. Other Parties
TURN, DRA and DOD/FEA all support CALTEL's petition. TURN states that the current FCC process for ILEC retirement of copper facilities merely requires notice, with little opportunity for meaningful protest. TURN asserts that removal of copper to the home by ILECs has the practical effect of depriving consumers of competitive alternatives. TURN also agrees with CALTEL that copper facilities provide important redundancy and a reliable telecommunications option for consumers in the event of power disruptions.
DRA states that even if the ILECs claim they are generally not retiring copper facilities for fiber replacement in California now, and state they intend no retirement in the future, the Commission should act proactively to address future ILEC retirement, abandonment and/or removal of copper now. DRA points out that answers provided by ILECs to questions by the ALJ at the Prehearing Conference blur the difference between "retirement" and "removal" of copper facilities, and that we should inquire into both activities in this proceeding. DRA also notes that because Verizon does not consider removal of copper "drops" (as described above) to be retirement of copper loops, we should explicitly include those facilities in our definition of retirement/removal of copper loops.
The DOD/FEA state that a rulemaking as CALTEL proposes should enhance competition for advanced services and that as a large customer in California, the DOD/FEA will benefit from such competition. DOD/FEA also asserts that most of the ILECs' opposition to CALTEL's petition is premature, as they are in large part arguing against the substance of CALTEL's proposals rather than the propriety of exploring those proposals by rulemaking. The DOD/FEA urge us not to deny CALTEL's petition merely because a similar petition is pending before the FCC, especially since, according to DOD/FEA, it is this Commission that can best protect the interests of California's customers.
5 Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers; Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Development of Wireline Services Offering Advanced Telecommunications Capability, 18 FCC Rcd 16978 (2003) (TRO).
6 Id. ¶ 284.
7 Each of the positions stated here is raised by one or more ILECs, but not all ILECs raise the same issues.
8 Certain parties dispute Verizon's claim that it always replaces the drops, and we have included this factual issue within the scope of this rulemaking.
