4. Discussion
For the reasons set forth below, we conclude that the petition for Rulemaking should be granted. We intend to examine three principal issues in this rulemaking: (1) whether we should establish procedural rules that ILECs and others must follow when an ILEC intends to retire or permanently remove copper loop facilities, and if so, what the rules should be, (2) whether we should adopt substantive prohibitions or conditions on the removal of such facilities, and, if we require that the facilities be maintained, who shall pay for such maintenance; and (3) whether ILECs are permanently removing copper drops and, if so, what action we may take to ensure their replacement where a customer so requests.
We agree with DOD/FEA's point that our decision to open a rulemaking does not decide its outcome. We believe CALTEL's petition raises important issues for our consideration, but we cannot predict the outcome of this examination, or whether we will adopt rules binding the parties.
4.1. We Are Not Preempted From Acting
The FCC did not preempt state commissions from adopting rules governing ILEC retirement of copper plant. Instead, the FCC anticipated that states might take action: "We expect that the state review process, working in combination with the Commission's network disclosure rules noted above, will address the concerns ... regarding the potential impact of an incumbent LEC retiring its copper loops."9
Nor does the pendency of a petition before the FCC preclude us from acting. The FCC petition has been pending since January 2007 and the comment cycle concluded in April 2007,10 and there is no indication of when - or if - it will act. Further, the FCC already has rules on the subject - despite the fact that CALTEL believes them inadequate - so there is little indication that it will act to change those rules in the near term.
The current FCC rules require the ILEC to provide notice of any copper retirement. Among other things, the notice must include the planned date for retiring a copper loop and a description of the reasonably foreseeable impact of the planned changes. The FCC found that "[s]uch notifications will ensure that incumbent and competitive carriers can work together to ensure the competitive LECs maintain access to loop facilities."11 CLECs are allowed to file objections to the ILEC's notice of copper loop retirement, but the FCC cautioned that unless the copper retirement scenario suggests that competitors will be denied access to the loop facilities required under its rules, the objection will be denied, unless the FCC rules otherwise based on the specific facts and circumstances of the case.
We are not countermanding the FCC's determination that the ILECs have no obligation to provide competitors access to unbundled network elements (UNEs) on their fiber facilities (other than the 64 kilobits per second narrowband portion necessary for voice grade service). We acknowledge that the FCC has determined that ILECs need not offer unbundled access to Fiber to the Home (FTTH) loops in new deployments (referred to as "greenfield" construction projects), for either narrowband or broadband services, and that in overbuild situations, where the ILEC constructs fiber transmission facilities parallel to or in replacement of existing copper plant, CLECs are not impaired in their ability to provide broadband services without access to ILEC FTTH loops.12
4.2. Commission Rule 6.3(F) Does
Not Bar This Rulemaking
Verizon and AT&T assert that the Commission is barred from opening this rulemaking by Rule 6.3(f) of the Commission's Rules of Practice and Procedure (Rules), which states that "The Commission will not entertain a petition for rulemaking on an issue that the Commission has acted on or decided not to act on within the preceding 12 months." Verizon and AT&T assert that because we stated in Decision (D.) 06-01-043 that we would not create a rule regarding the retirement of copper loops, we cannot address the issue here. However, we issued D.06-01-043 in January 2006, more than 12 months ago. While we addressed the extent of Verizon's obligation to share fiber loops on rehearing in D.07-02-034 (in February 2007), we have not, in the past 12 months, examined whether to adopt substantive or procedural rules relating to ILEC removal of copper loops or related plant.
Even if we had addressed the issue comprehensively in the last 12 months, Rule 6.3(f) does not bar the Commission from opening the present rulemaking. Pub. Util. Code § 1708.5, on which Rule 6.3(f) is based, states that we are entitled to open a notice and comment rulemaking at any time.
In opening this rulemaking, we do not prejudge whether we should develop substantive or procedural rules governing copper plant replacement or retirement. We recognize, however, that the questions the petition raises warrant careful consideration, given the ubiquity of copper facilities and their continued usage to provide today's - and potentially tomorrow's - telecommunications services.
4.3. Issues to Be Considered
We seek the parties' input on several issues, as set forth in Appendix A to this decision. Generally, we ask the parties to indicate what independent state authority we have to implement substantive or procedural rules; to comment specifically on CALTEL's proposed rules (included with this order as Appendix B), even if they oppose adoption of any rules; to propose their own rules if they disagree with CALTEL's proposal; to address how copper facilities should be maintained if ILECs no longer need them for their own service; and to address the redundancy and safety issues CALTEL raises and the ILECs refute.
Parties have already provided us some information on the amount, type and usage of copper telecommunications facilities in the field; the extent of removals or retirement; the extent to which facilities that are removed may be replaced; the cost to maintain existing facilities; who should bear such cost; and related matters.13 Parties may simply reproduce those responses if they are germane to any of the comments they provide on this OIR.
9 TRO ¶ 284.
10 See Petition for Rulemaking and Clarification of BridgeCom International, Inc., Broadview Networks, Inc., Cavalier Telephone LLC, et al., RM-11358 (filed Jan. 18, 2007); Petition of XO Communications, LLC, Covad Communications Group, Inc., NuVox Communications and Eschelon Telecom Inc., RM-11358 (filed Jan. 19, 2007).
11 In the Matter of Review of the Section 251 Unbundling Requirements of Incumbent Local Exchange Carriers, CC Docket Nos. 01-338, 96-98, 98-147, Report and Order on Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd. 19,020, FCC 03-36 (rel. Aug. 21, 2003), modified on recon., In the Matter of Unbundled Local Exchange Carriers, Order on Remand, 20 FCC Rcd 2533, FCC 04-290 (rel. Feb. 4, 2005) ("TRRO"), ¶ 282.
12 Id., ¶¶ 275-76.
13 Parties filed responses on October 4, 2007, October 16, 2007 and October 19, 2007, which are available on the electronic docket card for this proceeding at http://www.cpuc.ca.gov/proceedings/P0707009.htm.
