8. Assignment of Proceeding
Rachelle B. Chong is the assigned Commissioner and Sarah R. Thomas is the assigned Administrative Law Judge in this proceeding.
1. On July 12, 2007, CALTEL filed its petition pursuant to Pub. Util. Code § 1708.5 to institute a rulemaking on whether the Commission should adopt, amend, or repeal regulations governing the retirement by incumbent local exchange carriers of copper loops and related facilities used to provide telecommunications services
2. It is reasonable to institute a rulemaking regarding rules governing retirement or other removal of copper telecommunications facilities.
1. Pursuant to Pub. Util. Code § 1708.5, the Commission has authority to consider a petition requesting the initiation of a rulemaking into whether the Commission should adopt rules governing the retirement or other removal of copper telecommunications facilities.
2. The petition which is the subject of this order should be granted to the extent set forth herein.
3. A rulemaking should be initiated to consider whether the Commission should adopt, amend, or repeal regulations governing the retirement or other removal by incumbent local exchange carriers of copper loops (including copper "drops" as defined above) and related facilities used to provide telecommunications services.
IT IS ORDERED that:
1. The California Association of Competitive Telecommunications Companies (CALTEL) petition for the Commission to institute a rulemaking to consider whether the Commission should adopt, amend, or repeal regulations governing the retirement or other removal by incumbent local exchange carriers of copper loops (including copper "drops" as defined above) and related facilities used to provide telecommunications services is granted to the extent set forth in this order.
2. A rulemaking on the Commission's own motion into considering substantive and procedural rules governing retirement and removal from service of copper telecommunications plant, as set forth in this order, is hereby initiated.
3. The issues to be considered in this proceeding are set forth in the Preliminary Scoping Memo and summarized in Appendix A of this OIR.
4. An initial service list for this proceeding shall be created by the Process Office and posted on the Commission's website (www.cpuc.ca.gov) as soon as it is practicable. We direct the Process Office to add all parties that responded or replied to the petition as appearances.
5. After the initial service list is established, other additional persons or entities who wish to be placed on the new service list shall follow the directions below.
(a) Party category. Those who wish to participate in this proceeding as a party must contact the assigned administrative law judge in writing, by email (srt@cpuc.ca.gov) or at CPUC, 505 Van Ness Avenue, San Francisco, CA 94102 and describe their interest in the proceeding, indicate how the person or entity intends to participate, and list all relevant contact information (name; person or entity represented; mailing address; telephone number; and email address).
(b) Information-only category or state-service category. Those who intend only to monitor this proceeding, must contact the Commission's Process Office in writing, by email at (Process_Office@cpuc.ca.gov) or at CPUC, Process Office, 505 Van Ness Avenue, San Francisco, CA, 94102), specify the service category desired and list all relevant contact information (name; person or entity represented; mailing address; telephone number; and email address).
6. The category of this rulemaking is preliminarily determined to be "quasi-legislative" as defined in Rule 1(d) of the Commission's Rules of Practice and Procedure. Pursuant to Rule 7.6, any party may file and serve an appeal of categorization no later than 10 days from the date of issuance of this OIR.
7. All parties shall abide by the Commission's electronic service rules contained in Rule 2.3.1 of the Commission's Rules of Practice and Procedure.
8. It is preliminarily determined that hearings are necessary.
9. Comments are hereby solicited regarding issues identified for the proceeding as set forth in the Scoping Memo section of this order and summarized in Appendix A. Comments shall be due on or before 60 calendar days after the date of issuance of this OIR. Reply comments shall be due 30 calendar days after initial comments are filed.
10. The due dates for subsequent comments, if any, shall be set by assigned Commissioner and/or assigned Administrative Law Judge (ALJ) ruling at a later date.
11. The schedule for this proceeding is preliminarily approved and adopted, but may be changed, if necessary, by an assigned Commissioner Ruling or an ALJ Ruling.
12. This order shall be served on the service lists that were served with Petition 07-07-009 and shall also be served on all Incumbent Local Exchange Carriers and Competitive Local Exchange Carriers under the jurisdiction of this Commission as shown on Appendix C.
13. Petition 07-07-009 is closed.
This order is effective today.
Dated January 10, 2008, at San Francisco, California.
MICHAEL R. PEEVEY
President
DIAN M. GRUENEICH
JOHN A. BOHN
RACHELLE B. CHONG
TIMOTHY ALAN SIMON
Commissioners
APPENDIX A
Preliminary Scope of Issues to be Addressed in this Rulemaking
A. Applicable State Law, Rules or Procedure
1) Assuming we decide that in certain cases we should, as the FCC noted, "evaluate an incumbent LEC's retirement of its copper loops to ensure such retirement complies with any applicable state legal or regulatory requirements," what applicable state legal or regulatory requirements govern such evaluation?
In its petition, CALTEL cites Public Utilities Code Sections 709 and 709.5. Section 709 sets forth the California Legislature's policies for telecommunications. Those polices promote the development, deployment, and wide-spread availability of high-quality telecommunications services. Section 709.5 expresses the Legislature's intent to open telecommunications markets to competition by January 1, 1997 and to ensure that competition in the telecommunications markets is fair and that the state's universal service policy is observed. CALTEL also cites Section 851, which requires a public utility to receive Commission approval before disposing of any of its property, and Section 701, which gives the Commission authority to "do all things . . . which are necessary and convenient in the exercise of [its] power and jurisdiction."14
2) What does the following quoted FCC passage allow us, as a state commission, to do?:
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.
B. Procedural Rules
1. Comment on the procedural rules CALTEL proposes, attached hereto as Appendix B, even if you disagree that we should adopt any such rules. CALTEL should file comments explaining each provision of its proposed rules, and why such provisions are necessary. Other parties may respond to CALTEL's explanation in reply comments.
2. If you propose a different set of rules from those CALTEL proposes, furnish those proposed rules. Explain each provision of such rules and why such provisions are necessary.
C. Substantive Rules
1. Under what circumstances should ILECs be precluded from permanently removing or retiring copper loops (including copper drops) and related facilities, and why?
2. If ILECs are precluded from retiring any such facilities, who will maintain the facilities, and who will bear the cost of such maintenance?
3. Are there any circumstances under which the Commission could allow third parties (i.e., parties other than ILECs) to purchase, lease or otherwise take responsibility for copper loops and related facilities? How should the cost of retired copper loops be determined?
4. What factors should we consider in differentiating between facilities that may be removed, if any, and facilities that must be maintained, if any?
5. How many drops have been removed in California? Of those, how many have been replaced on request? If any drops have not been replaced on request, describe the circumstances.
D. Safety and Redundancy
1. Does removal of copper loops pose any safety concerns? Note that the Commission is currently examining portions of this issue in another rulemaking, R.07-04-015. Should we develop rules in this proceeding, or rely on any part of the R.07-04-015 record in resolving the issues posed here?
(END OF APPENDIX A)
APPENDIX B
CALTEL's Proposed Rules Governing the Retirement of Copper Facilities
(a) Prior to retiring15 any copper facility16 in connection with the installation of a fiber-to-the-home loop, a fiber-to-the-curb loop, or fiber feeder plant serving the customer premises served by the copper facility, an incumbent local exchange carrier (ILEC) shall file an Application with the Commission seeking approval of the planned retirement.
(b) In addition to complying with Rules 2.1-2.7, the application shall contain the following:
(1) A description of the service area, including geographic area, population and general character (i.e. whether a business or residential community) currently served by the copper facilities that the ILEC intends to retire;
(2) The date that the ILEC intends to retire the copper facilities and the physical location of the copper facilities the ILEC intends to retire;
(3) The name of any other carrier or carriers providing telephone service to the service area described in subparagraph (1);
(4) A description of any previous retirement of copper facilities serving the service area are affected by the application, which the applicant has requested during the 12 months preceding the date of filing the application, and whether such application was approved by the Commission;
(5) A statement of any present plans for future retirement (i.e. retirement other than that for which authority is sought in the present application) of copper facilities in the community affected by the application; and
(6) Any other information that the Commission may require.
(c) The Application shall be verified by a corporate officer of the applicant.
(d) Each application for retirement of copper facilities shall be accompanied by a statement showing:
(1) how the grant of the application will serve the public interest, convenience and necessity, and
(2) how the grant of the application will affect the ability of other service providers to compete with the applicant; and
(3) what affect, if any, the grant of the application, will have on consumers located in the geographic area described in (b)(1).
(e) In its review of the application, the Commission shall presume that retirement of copper facilities does not serve the public interest, convenience and necessity. The applicant may rebut such presumption by a showing that retirement of the subject copper facilities:
(1) Serves the public interest, convenience and necessity; and
(2) Is necessary to deploy fiber-to-the-home or fiber-to-the-curb loops or fiber feeder plant to the end user customer premises that currently is served by the existing copper facilities; such that deployment of fiber-to-the-home and fiber-to-the-curb loops, or fiber feeder plant to such customer premises would not be possible if the subject copper facilities were maintained.
(f) As set forth in Rule 2.6, any interested party may protest an application filed pursuant to this rule within 30 days following the first appearance of the Application in the Commission's Daily Calendar. Such protest shall contain specific allegations to show that a grant of the application would be inconsistent with the public interest, convenience and necessity or is not necessary to permit deployment of the fiber facilities described in the application. Such allegations of fact shall, except for those of which official notice may be taken, be supported by an affidavit of a person or persons with personal knowledge thereof. The applicant may file a response to any protest within 15 days of the filing of the protest. By leave of the Presiding Officer, the protestant may file a reply to such response within 15 days of the filing of the applicant's response.
(END OF APPENDIX B)
APPENDIX C
List of Incumbent Local Exchange Carriers and
Competitive Local Exchange Carriers
P0707009/R___ Thomas Agenda Dec Attach C1
P0707009/R___ Thomas Agenda Dec Att C2
ATTACHMENT C CLEC Petition OIR Cooper Loop Retirement P0707009.
14 AT&T, among other ILECs, asserts that none of these provisions gives us state authority to impose rules that are broader than those already imposed by the FCC.
15 The term "retiring" as used herein includes, without limitation, both physical removal of the copper facility at issue as well as network modifications or lack of maintenance which make copper facilities unable to be used to provide telecommunications services.
16 Copper facility as used in these rules is defined as the cooper loop, copper subloop, copper feeder plant, or related copper facilities.
