**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+---+------------------------------+
| In the Matter of                 | ) | CC Docket No. 01-338         |
|                                  |   |                              |
| Review of the Section 251        | ) | CC Docket No. 96-98          |
| Unbundling Obligations of        |   |                              |
| Incumbent Local Exchange         | ) | CC Docket No. 98-147         |
| Carriers                         |   |                              |
|                                  | ) |                              |
| Implementation of the Local      |   |                              |
| Competition Provisions of the    | ) |                              |
| Telecommunications Act of 1996   |   |                              |
|                                  | ) |                              |
| Deployment of Wireline Services  |   |                              |
| Offering Advanced                | ) |                              |
| Telecommunications Capability    |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
|                                  |   |                              |
|                                  | ) |                              |
+----------------------------------+---+------------------------------+

ORDER ON RECONSIDERATION

**Adopted:** October 14, 2004 **Released:** October 18, 2004

By the Commission: Chairman Powell, Commissioners Abernathy, and Martin
issuing separate statements; Commissioner Adelstein concurring in part,
dissenting in part and issuing a statement; Commissioner Copps
dissenting and issuing a statement.

# INTRODUCTION

1.  In this Order, we address, in part, BellSouth's and SureWest's
    petitions for reconsideration of our *Triennial Review Order*.
    Specifically, we conclude that fiber-to-the curb (FTTC) loops shall
    be subject to the same unbundling framework that the Commission
    established for fiber-to-the-home (FTTH) loops.[^1] We also clarify
    that incumbent LECs are not required to add TDM capabilities into
    new packetized transmission facilities.

# discussion

## Fiber-to-the-Curb Loops

### Background

In the *Triennial Review Order*, the Commission limited the unbundling
obligations imposed on mass market FTTH deployments to remove
disincentives to the deployment of advanced telecommunications
facilities in the mass market.[^2] We find here that those policy
considerations are furthered by extending the same regulatory treatment
to incumbent LECs' mass market FTTC deployments. Similarly, just as we
found no impairment with respect to mass market FTTH loops in the
*Triennial Review Order*, we also find that the level playing field for
incumbents and competitors seeking to deploy FTTC loops, and increased
revenue opportunities associated with those deployments, demonstrates
that requesting carriers are not impaired without access to mass market
FTTC loops.[^3]

The Telecommunications Act of 1996 (the 1996 Act)[^4] requires that
incumbent LECs provide UNEs to other telecommunications carriers.[^5] In
particular, section 251(c)(3) of the Act states that incumbent LECs have
a duty to

> provide, to any requesting telecommunications carrier for the
> provision of a telecommunications service, nondiscriminatory access to
> network elements on an unbundled basis at any technically feasible
> point on rates, terms, and conditions that are just, reasonable, and
> nondiscriminatory in accordance with the terms and conditions of the
> agreement and the requirements of this section and section 252.[^6]

2.  The 1996 Act also establishes a general federal standard for use in
    determining the UNEs that must be made available by the incumbent
    LECs pursuant to section 251. Section 251(d)(2) provides that

> \[i\]n determining what network elements should be made available for
> purposes of subsection (c)(3), the Commission shall consider, at a
> minimum, whether -- (A) access to such network elements as are
> proprietary in nature is necessary; and (B) the failure to provide
> access to such network elements would impair the ability of the
> telecommunications carrier seeking access to provide the services that
> it seeks to offer.[^7]

3.  In implementing the statutory unbundling requirements for mass
    market local loops, we engage in a balancing test.[^8] While
    impairment remains the statutory touchstone, we do not rely
    exclusively on an impairment analysis to make our unbundling
    determination. As the Commission found in the *Triennial Review
    Order*, we retain the flexibility under our section 251(d)(2) "at a
    minimum" authority to consider other factors.[^9] Although we use
    this flexibility sparingly, we consider the goal of swift ubiquitous
    broadband to be so important that we consider the statutory goals
    outlined in section 706 and how they relate to broadband as
    additional factors.[^10] We also consider the comparative weight of
    the costs versus benefits of unbundling and the effect of intermodal
    competition.[^11]

4.  Accordingly, in the *Triennial Review Order*, the Commission applied
    the above analysis taking into account impairment as well as the
    goals outlined in section 706 and imposed only limited unbundling
    obligations on incumbent LECs' fiber loops. In *USTA II*, the D.C.
    Circuit upheld these rules.[^12] The Commission granted the greatest
    unbundling relief for dark or lit fiber loops serving mass market
    customers that extend to the customer's premises (known as
    fiber-to-the-home or FTTH loops) in new build or "greenfield"
    situations. For those loops, the Commission determined that no
    unbundling is required.[^13] However, where a FTTH loop is deployed
    in overbuild, or "brownfield," situations, the Commission determined
    that incumbent LECs must either provide unbundled access to a 64
    kbps transmission path over the fiber loop or unbundled access to a
    spare copper loop.[^14] We noted that this "is a very limited
    requirement intended only to ensure continued access to a local loop
    suitable for providing narrowband services to the mass market in
    situations where an incumbent LEC has deployed overbuild FTTH and
    elected to retire the pre-existing copper loops."[^15]  Under the
    *Triennial Review Order*, incumbent LECs were not required to retire
    pre-existing copper loops. For hybrid copper/fiber loops, the
    Commission granted unbundling relief for the packet-switched
    capabilities of those loops, but required incumbent LECs to provide
    unbundled access to the features, functions, and capabilities of
    hybrid loops that are not used to transmit packetized
    information.[^16] The Commission concluded that when a requesting
    carrier seeks access to a hybrid loop to provide narrowband service,
    the incumbent LEC may provide either unbundled access to an entire
    hybrid loop capable of voice grade transmission path service or
    provide unbundled access to a spare copper loop.[^17]

5.  On October 2, 2003, BellSouth filed a petition for reconsideration
    of several issues decided in the *Triennial Review Order*.[^18] In
    the *MDU Reconsideration Order*, the Commission addressed one part
    of BellSouth's petition, which sought clarification and
    reconsideration of several aspects of the Commission's rules
    regarding fiber loops.[^19] In particular, the Commission concluded
    that the FTTH loop rules will apply to fiber loops serving multiple
    dwelling units (MDUs) that are predominantly residential.[^20] The
    Commission further clarified that the definition of FTTH loops
    includes fiber loops deployed to the minimum point of entry (MPOE)
    of MDUs, regardless of the ownership of the inside wiring.[^21]

6.  This Order addresses an additional aspect of BellSouth's petition
    for reconsideration.[^22] Specifically, BellSouth seeks
    reconsideration of the regulatory treatment of FTTC loops, which
    BellSouth claims is sufficiently similar to FTTH loops to be subject
    to the same broadband loop unbundling rules.[^23] BellSouth argues
    that FTTC loops are indistinguishable from FTTH loops in their
    ability to deliver broadcast or better quality, multi-channel video
    along with high speed data and voice services.[^24] Moreover,
    BellSouth contends that the impairment analysis is the same as FTTH
    loops because incumbent LECs have no economic advantage over
    competitive LECs in deploying FTTC loops.[^25] Competitive LEC
    commenters contend that unbundling relief is not warranted, both
    because BellSouth already has deployed some FTTC networks despite
    the existing unbundling requirements, and because BellSouth has not
    yet utilized the full capabilities of those networks.[^26] Moreover,
    some commenters disagree with BellSouth's assertion that FTTC loops
    offer the comparable broadband capabilities as FTTH loops, citing
    evidence that the potential future capacity of FTTH loops is greater
    than that of FTTC loops.[^27]

### Discussion

After applying section 251(d)(2)(B) and balancing any impairment
competitive carriers may face, against the broadband deployment goals of
section 706 in the specific context of FTTC loops, we conclude that the
record here demonstrates that the same unbundling relief as provided for
FTTH loops in the *Triennial Review Order* and *MDU Reconsideration
Order* is warranted for FTTC loops provided certain architectural
requirements are met as discussed below.[^28] In arriving at this
conclusion, we are persuaded that making such a change in our rules is
necessary to ensure that regulatory disincentives for broadband
deployment are removed for carriers seeking to provide advanced services
to mass market customers using FTTC technology.[^29]

In granting such relief, we first define FTTC loops. Specifically, a
FTTC loop is a fiber transmission facility connecting to copper
distribution plant that is not more than 500 feet from the customer's
premises.[^30] The record reflects that when fiber is brought within 500
feet of a subscriber's premises, carriers can provide broadband services
comparable to that provided by FTTH architecture, including data speeds
of 10 megabits per second (Mbps) in addition to high definition
multi-channel video services.[^31] Indeed, we note that a 500 foot
maximum copper loop length is the standard issued by Telcordia for FTTC
loops, and reflects industry consensus that, over short distances,
copper exhibits very little impedance, thereby enabling significant
capacity for advanced services.[^32] We further specify that the fiber
transmission facility in a FTTC loop must connect to copper distribution
plant at a serving area interface from which every other copper
distribution subloop also is not more than 500 feet from the respective
customer's premises. We do this to ensure that our unbundling relief is
targeted to FTTC deployments that are designed to bring increased
advanced services capability to users, rather than extended to other
hybrid loop deployments that coincidentally happen to have individual
loops with less than 500 feet or less of copper.

We decide to grant further unbundling relief for FTTC loops for two
reasons. First, we conclude that requesting carriers are not impaired in
greenfield areas and face only limited impairment without access to FTTC
loops where FTTC loops replace pre-existing loops. Second, as with FTTH
loops, competitive LECs deploying FTTC loops have increased revenue
opportunities through the ability to offer voice, multi-channel video,
and high-speed data services.[^33] As the Commission found with respect
to FTTH loops in the *Triennial Review Order*, the substantial revenue
opportunities that arise from offering this "triple play" of services
helps ameliorate many of the entry barriers presented by the costs and
scale economies.[^34]

First, with respect to new FTTC deployments ("greenfield" deployments),
we find that competitive LECs face similar barriers to deployment as
incumbent LECs.[^35] In the *Triennial Review Order*, the Commission
found that entry barriers for FTTH deployments were largely the same for
incumbent and competitive carriers.[^36] We find that this conclusion
remains valid regardless of the loop technology deployed, and thus
equally applies to greenfield deployments of FTTC loops. In particular,
when deploying FTTC loops in greenfields, both incumbent LECs and
competitive LECs "must negotiate rights-of-way, respond to bid requests
for new housing developments, obtain fiber optic cabling and other
materials, develop deployment plans, and implement construction
programs."[^37] Nor do incumbent LECs have any advantages with respect
to the sunk costs of FTTC loops -- "both incumbent LECs and competitive
LECs are faced with the same issue\[s\] in their deployment of such
loops."[^38] Accordingly, as with FTTH loops, we find that competitive
carriers are not impaired without access to FTTC loops in greenfield
deployments. However, just as overbuild FTTH deployments "merit\[\]
slightly different treatment than greenfield FTTH deployments," so, too,
do overbuild FTTC deployments.[^39] In particular, deploying FTTC loops
in overbuild situations "enables an incumbent LEC to replace and
ultimately deny access to the already-existing copper loops that
competitive LECs were using to serve mass market customers."[^40] Thus,
in the overbuild context, we find that competitive LECs face impairment
to a limited extent.

Second, as we did in the *Triennial Review Order*, we utilize the
discretion under our section 251(d)(2) "at a minimum" authority to
consider the statutory goals of section 706 which requires us to
encourage the deployment of advanced telecommunications capability to
all Americans.[^41] We conclude that subjecting FTTC loops to the same
unbundling framework adopted for FTTH loops furthers the goals of
section 706. The record here demonstrates that further reducing the
unbundling obligations associated with FTTC loops would eliminate
disincentives to invest in broadband facilities and, therefore, further
section 706's goals.[^42] FTTC architecture offers considerable
capability for providing advanced services, including the ability to
offer voice, multi-channel video, and high speed data services.[^43] We
thus expect FTTC deployments to lead to the offering of this "triple
play" of services to end-users, furthering the goals of section 706. In
addition, the record indicates that, particularly in the overbuild
context, FTTC loops require substantial investment, more akin to FTTH
loops. FTTC architecture requires the deployment of new serving area
interfaces, and the associated deployment of new loop plant.[^44]
Consequently, we conclude that, treating FTTC loops the same as FTTH
loops will encourage carriers to further deploy fiber architectures
necessary to deploy broadband services to the mass market, and the
benefits of such deployment outweigh the limited impairment that
competitive carriers face.[^45] We therefore reconsider our
determination in the *Triennial Review Order* that FTTC loops should be
characterized as hybrid loop architecture for the purpose of our
unbundling regulations, and revise our broadband loop unbundling rules
to regulate FTTC loops in the same manner as adopted for FTTH loops in
the *Triennial Review Order* and the *MDU Reconsideration Order*.

Accordingly, we do not require incumbent LECs to provide unbundled
access to new mass market FTTC loops for either narrowband or broadband
services. In overbuild situations, because incumbent LECs have an entry
barrier within their sole control, we conclude, as with FTTH loops, that
competitive LECs should have continued access to either a copper loop or
a 64 kbps transmission path in those situations.[^46] Finally, we note
that, consistent with our recent *MDU Reconsideration Order*, FTTC loops
serving predominantly residential MDUs will be subject to the same
unbundling relief as FTTH loops.

In reaching this determination, we reject competitive LEC commenters'
claims that because incumbent LECs already have deployed some FTTC
networks, unbundling creates no disincentive to invest in such
next-generation facilities.[^47] The Commission previously confronted,
and rejected, this argument as applied to other broadband loops. For
example, the Commission found that, although hybrid loops had been
deployed, they had not been deployed to their full capacity to deliver
broadband services to mass market customers, and that unbundling also
created disincentives for competitive LECs to invest in their own
facilities.[^48] The Commission also found that unbundling created
disincentives for competitive LECs to invest in their own
facilities.[^49] In *USTA II*, the court upheld the Commission's
reliance on such investment disincentives, even where there already had
been some deployment of facilities.[^50] We find that the same analysis
is true with regard to FTTC loops. Although it is true that FTTC
networks have been deployed to some extent, the deployment has been "far
from ubiquitous," and we believe that the architecture has not been
deployed to its full potential.[^51] In addition, the record
demonstrates that the costs of unbundling hinder deployment of FTTC
loops that otherwise would occur.[^52] We believe that by providing
unbundling relief to FTTC loops, incumbent LECs will be encouraged to
further deploy FTTC loops and make the required investments to provide
advanced services over those facilities, just as our unbundling relief
for FTTH loops has provided incentives for carriers to invest in such
facilities.[^53]

Moreover, we conclude that denying unbundled access to FTTC loops will
provide competitive LECs incentives to "seek innovative access options,
including the deployment of their own facilities necessary for providing
broadband services to the mass market."[^54] As with FTTH loops, both
incumbent LECs and competitive LECs have comparable abilities to
undertake the investment risk associated with deploying FTTC facilities.
The *USTA II* court recognized that "\[a\]n unbundling requirement under
these circumstances seems likely to delay infrastructure investment,
with CLECs tempted to wait for ILECs to deploy FTTH and ILECs fearful
that CLEC access would undermine the investments' potential return.
Absence of unbundling, by contrast, will give all parties an incentive
to take a shot at this potentially lucrative market."[^55]

We also reject the claims of competitive LECs that BellSouth's
deployment of FTTC loops to date has not resulted in the provision of
advanced services, and thus such deployment does not further the goals
of section 706.[^56] First, BellSouth demonstrates that it is preparing
to offer, and in some cases already is offering, advanced services over
its FTTC facilities.[^57] Second, our decision to provide unbundling
relief for FTTC loops is to ensure that regulatory disincentives are
removed for *all* carriers seeking to provide advanced services using
FTTC technology. Indeed, other commenters cite evidence that FTTC loops
are being used to provide advanced services, further indicating that
carriers deploying FTTC loops do so to offer advanced services.[^58] We
therefore expect that carriers deploying FTTC loops will offer advanced
services, such as the triple play of voice, multi-channel video, and
high-speed data, using those facilities. Third, because the section 706
mandate requires the Commission to encourage the deployment of advanced
telecommunications capability, the Commission is required to make a
predictive judgment regarding the impact of its actions. With regard to
FTTH loops, the Commission concluded that removing most unbundling
obligations would promote deployment of such facilities.[^59] We believe
that similar treatment of FTTC loops will have a similar impact and will
lead to additional deployment of FTTC architectures, as well as advanced
services to mass market customers. Finally, in order to ensure that our
new rules promote the goals of section 706, we tailor unbundling relief
to those FTTC deployments specifically designed to bring advanced
services to users. Accordingly, we are requiring that, as an
architectural matter, the fiber transmission facility in a FTTC loop
must connect to copper distribution plant at a serving area interface
from which every other copper distribution subloop also is not more than
500 feet from the respective customer's premises. In this manner, we
provide those incumbents seeking to avail themselves of this unbundling
relief an incentive to reconfigure their network to bring advanced
services to the entire geographic area rather than permitting them to
obtain unbundling relief where, by happenstance, there may be an
existing loop with 500 feet or less copper distribution.

Some commenters express concern that if unbundling relief is tailored on
an architectural basis, they might have difficulty identifying which
loops are FTTC loops.[^60] BellSouth responds that both FTTC loops and
FTTH loops bear an information code in their systems distinguishing
those loops from other types of loop facilities, allowing competitive
LECs to know in advance whether a particular loop is a FTTC loop or FTTH
loop.[^61] We agree that it is important for requesting carriers to have
the necessary information about whether particular loops would qualify
as FTTC loops or FTTH loops, and we thus reiterate the requirement,
stated in the *UNE Remand Order*, that incumbent LECs' OSS must provide
competitive LECs with nondiscriminatory access to the same detailed
information about the loop that is available to itself and such
information must be provided to competitive LECs in the same time frame
as provided to its own personnel.[^62]

We also disagree with the assertion of some commenters that we should
refrain from providing further unbundling relief for FTTC loops because
FTTH architecture is a superior technology, and additional unbundling
relief for FTTC loops would reduce carriers' incentives to deploy FTTH
loops.[^63] The FTTH loop rules adopted in the *Triennial Review Order*
and the *MDU Reconsideration Order*, and the FTTC loop unbundling rules
adopted in this Order are intended to promote the goals of section 706,
rather than to promote the deployment of a single, specific
next-generation network technology. Comments indicate that both FTTH
loops and FTTC loops have their respective merits and shortcomings based
on particular economic and technological factors, and we conclude that
the decision concerning which broadband technologies to deploy is best
left to individual carriers operating in the market to decide.[^64] We
decline to second-guess or skew those technology choices with our
unbundling requirements.

## Network Modification Rules

In the *Triennial Review Order*, the Commission required incumbent LECs
to make routine network modifications to unbundled transmission
facilities used by competitive carriers where the requested transmission
facility has already been constructed.[^65] In defining the term
"routine network modification" the Commission concluded that incumbent
LECs must perform those modifications that they would regularly perform
for their own retail customers.[^66] In the Triennial Review Order, we
prohibited "any incumbent LEC practice, policy or procedure that has the
effect of disrupting or degrading access to the TDM-based features,
functions, and capabilities of hybrid loops."[^67] BellSouth and
SureWest request clarification on the applicability of this precedent to
"packet-based networks."[^68] Our rules limit the unbundling obligations
placed on hybrid loop, FTTH loop, and now FTTC loop deployment.
Accordingly, we clarify that incumbent LECs are not obligated to build
TDM capability into new packet-based networks or into existing
packet-based networks that never had TDM capability.[^69]

Verizon states that where incumbent LECs deploy new FTTH loops or FTTC
loops using packet-based equipment, they nevertheless may need to hand
off a signal to some customers in TDM format in order to be compatible
with an end user's customer premises equipment.[^70] We recognize that
where an incumbent has deployed FTTH or FTTC loops some customers may
require a modest format translation, typically at the customer premises,
to make packet-based signals compatible with legacy customer premises
equipment. We clarify that the existence of this "TDM handoff," as
described above and in Verizon\'s ex parte, does not change the scope of
the Commission's unbundling relief.

# Procedural matters

> A. Supplemental Final Regulatory Flexibility Analysis

7.  As required by the Regulatory Flexibility Act of 1980, as amended
    (RFA),[^71] an Initial Regulatory Flexibility Analysis (IRFA) was
    incorporated in the *NPRM*.[^72] The Commission sought written
    public comment on the proposals in the *NPRM*, including comment on
    the IRFA. In the *Triennial Review Order*, the Commission issued a
    Final Regulatory Flexibility Analysis (FRFA) addressing comments
    submitted with regard to the IRFA.[^73] This present Order addresses
    issues raised by two petitions for reconsideration of the *Triennial
    Review Order*. Specifically, the Order modifies the unbundling rules
    governing fiber-to-the-curb (FTTC) loops in response to a petition
    from BellSouth. The Order also clarifies existing rules regarding
    network modifications in response to petitions from BellSouth and
    SureWest. This present Supplemental FRFA (Supplemental FRFA)
    conforms to the RFA.[^74]

### Need for, and Objectives Of, the Rule

In response to BellSouth's petition for reconsideration of the
*Triennial Review Order*, this Order promotes investment in broadband
facilities through the implementation of the unbundling requirements of
section 251 of the Act. Specifically, the Order concludes that the
fiber-to-the-home (FTTH) rules, which relieve the incumbent LECs from
certain unbundling obligations, will also apply to FTTC loops.
Specifically, a FTTC loop is a fiber transmission facility connecting to
copper distribution plant that is not more than 500 feet from the
customer's premises. The Commission further specifies that the fiber
transmission facility in a FTTC loop must connect to copper distribution
plant at a serving area interface from which every other copper
distribution subloop also is not more than 500 feet from the respective
customer's premises. In the *Triennial Review Order* released last year,
the Commission concluded that the broadband capabilities of FTTH loops
would be relieved from unbundling under section 251 of the Act. Today's
action builds on the broadband principles of the *Triennial Review
Order* by further extending the unbundling relief FTTC loops. In this
Order, the Commission concludes that, as with FTTH, competitors are not
impaired without access to FTTC loops in new build ("greenfield")
situations. While requesting carriers may face limited impairment in
overbuild ("brownfield") situations, that is addressed by requiring
unbundled access to a 64 kbps channel or unbundled access to spare
copper facilities. Based on this analysis of impairment and the section
706 balancing of investment incentives against the costs of unbundling
for FTTC, the Commission concludes that FTTC loops should have the same
unbundling relief as FTTH loops.[^75]

Petitions by BellSouth and SureWest also sought clarification whether
the Commission's existing unbundling rules require incumbent LECs to
build time division multiplexing (TDM) capabilities into networks at the
request of competitive LECs. Consequently, this Order clarifies that
incumbent LECs are not required to add TDM capabilities into new
packetized transmission facilities. In addition, the Order also
clarifies that where an incumbent LEC has deployed FTTH or FTTC loops
using packet-based equipment, and they nevertheless need to hand off a
signal to some customers in TDM format in order to be compatible with an
end user's customer premises equipment, this "TDM handoff" does not
change the scope of unbundling relief.

> 2\. Summary of Significant Issues Raised by the Public

8.  The subject petitions for reconsideration were not submitted in
    response to the previous FRFA, and did not address the FRFA.

> 3\. Description and Estimate of the Number of Small Entities To Which
> the Proposed Rules Would Apply

9.  The RFA directs agencies to provide a description of, and, where
    feasible, an estimate of, the number of small entities that may be
    affected by the rules adopted herein.[^76] The RFA generally defines
    the term "small entity" as having the same meaning as the terms
    "small business," "small organization," and "small governmental
    jurisdiction."[^77] In addition, the term "small business" has the
    same meaning as the term "small business concern" under the Small
    Business Act.[^78] A "small business concern" is one which: (1) is
    independently owned and operated; (2) is not dominant in its field
    of operation; and (3) satisfies any additional criteria established
    by the Small Business Administration (SBA).[^79]

10. In this section, we further describe and estimate the number of
    small entity licensees and regulatees that may be affected by the
    revised rule adopted in this Order. The most reliable source of
    information regarding the total numbers of certain common carrier
    and related providers nationwide, as well as the number of
    commercial wireless entities, appears to be the data that the
    Commission publishes in its *Trends in Telephone Service*
    report.[^80] The SBA has developed small business size standards for
    wireline small businesses within the commercial census category of
    Wired Telecommunications Carriers.[^81] Under this category, a
    business is small if it has 1,500 or fewer employees. Below, using
    the above size standards and others, we discuss the total estimated
    numbers of small businesses that might be affected by our actions.

11. We have included small incumbent local exchange carriers in this
    present RFA analysis. As noted above, a "small business" under the
    RFA is one that, *inter alia*, meets the pertinent small business
    size standard (*e.g.*, a telephone communications business having
    1,500 or fewer employees), and "is not dominant in its field of
    operation."[^82] The SBA's Office of Advocacy contends that, for RFA
    purposes, small incumbent local exchange carriers are not dominant
    in their field of operation because any such dominance is not
    "national" in scope.[^83] We have therefore included small incumbent
    local exchange carriers in this RFA analysis, although we emphasize
    that this RFA action has no effect on Commission analyses and
    determinations in other, non-RFA contexts.

12. *Wired Telecommunications Carriers*. The SBA has developed a small
    business size standard for Wired Telecommunications Carriers, which
    consists of all such companies having 1,500 or fewer employees.[^84]
    According to Census Bureau data for 1997, there were 2,225 firms in
    this category, total, that operated for the entire year.[^85] Of
    this total, 2,201 firms had employment of 999 or fewer employees,
    and an additional 24 firms had employment of 1,000 employees or
    more.[^86] Thus, under this size standard, the majority of firms can
    be considered small.

13. *Incumbent Local Exchange Carriers.* Neither the Commission nor the
    SBA has developed a small business size standard specifically for
    incumbent local exchange services. The appropriate size standard
    under SBA rules is for the category Wired Telecommunications
    Carriers. Under that size standard, such a business is small if it
    has 1,500 or fewer employees.[^87] According to Commission
    data,[^88] 1,337 carriers have reported that they are engaged in the
    provision of incumbent local exchange services. Of these 1,337
    carriers, an estimated 1,032 have 1,500 or fewer employees and 305
    have more than 1,500 employees. Consequently, the Commission
    estimates that most providers of incumbent local exchange service
    are small businesses that may be affected by our proposed action.

14. *Cable and Other Program Distribution*. In addition, the SBA has
    developed a small business size standard for Cable and Other Program
    Distribution,[^89] which includes all such companies generating
    \$12.5 million or less in annual receipts.[^90] According to Census
    Bureau data for 1997, there were a total of 1,311 firms in this
    category, total, that had operated for the entire year.[^91] Of this
    total, 1,180 firms had annual receipts of under \$10 million, and an
    additional 52 firms had receipts of \$10 million or more but less
    than \$25 million.[^92] Consequently, we estimate that the majority
    of providers in this service category are small businesses that may
    be affected by the proposed rules and policies.

> 4\. Description of Projected Reporting, Recordkeeping, and Other
> Compliance Requirements for Small Entities

15. In this Order, we conclude that FTTC loops will be subject to the
    same unbundling obligations as FTTH loops. This rule modification
    will relieve the providers of such broadband loops from unbundling
    obligations under section 251 of the Act. This relieved a section
    251 unbundling requirement currently placed on such providers.

> 5\. Steps Taken to Minimize Significant Economic Impact on Small
> Entities, and Significant Alternatives Considered

16. The RFA requires an agency to describe any significant alternatives
    that it has considered in developing its approach, which may include
    the following four alternatives (among others): "(1) the
    establishment of differing compliance or reporting requirements or
    timetables that take into account the resources available to small
    entities; (2) the clarification, consolidation, or simplification of
    compliance and reporting requirements under the rule for such small
    entities; (3) the use of performance rather than design standards;
    and (4) an exemption from coverage of the rule, or any part thereof,
    for such small entities."[^93]

17. In this Order, we conclude that FTTC loops should be governed by the
    FTTH loop rules. The Order considered, and rejected, the alternative
    of retaining the existing unbundling obligations for FTTC. The Order
    reached this conclusion by applying principles established in the
    *Triennial Review Order* to more precisely calibrate the
    Commission's policy for broadband loops. In response to petitions
    for reconsideration requesting that the Commission look more closely
    at the unbundling requirements for FTTC loops, the Order considers
    potential impairment faced by requesting carriers and weighs section
    706's broadband deployment goals, and concludes that the record
    demonstrates that FTTC loops should have the same unbundling relief
    as FTTH loops. Although this rule will deny unbundling to
    competitive carriers seeking to serve customers served by FTTC
    loops, the Commission concluded that requesting carriers face no
    impairment in greenfield situations and only limited impairment in
    brownfield situations, which is addressed through access to a 64
    kbps channel or a spare copper facility. Further, such unbundling
    relief was necessary to remove disincentives for incumbent LECs to
    deploy FTTC facilities.[^94] Alternatives considered, including the
    denial of such unbundling relief to FTTC, were not adopted because
    they do not accomplish the Commission's objectives in this
    proceeding of promoting broadband deployment.[^95]

18. **[Report to Congress:]{.underline}** The Commission will send a
    copy of the Order, including this Supplemental FRFA, in a report to
    be sent to Congress pursuant to the Congressional Review Act.[^96]
    In addition, the Commission will send a copy of the Order, including
    this Supplemental FRFA, to the Chief Counsel for Advocacy of the
    SBA. A copy of the Order and Supplemental FRFA (or summaries
    thereof) will also be published in the Federal Register.

> B. Final Paperwork Reduction Act Analysis

19. This document does not contain new or modified information
    collection requirements subject to the Paperwork Reduction Act of
    1995 (PRA), Public Law 104-13. In addition, therefore, it does not
    contain any new or modified "information collection burden for small
    business concerns with fewer than 25 employees," pursuant to the
    Small Business Paperwork Relief Act of 2002, Public Law 107-198, see
    44 U.S.C. § 3506(c)(4).

# ordering clauseS

20. IT IS ORDERED that, pursuant to the authority contained in sections
    2, 4(i)-4(j), 10(d), 201, 251, 303(r), and 706 of the Communications
    Act of 1934, as amended, 47 U.S.C. §§ 152, 154(i)-4(j), 160(d), 201,
    251, 303(r), 706 this Order on Reconsideration IS ADOPTED, and that
    part 51 of the Commission's rules, 47 CFR part 51, is amended as set
    forth in Appendix B of the Order. The requirements of this Order
    shall become effective 30 days after publication in the federal
    register.

21. IT IS FURTHER ORDERED that, pursuant to the authority contained in
    sections 2, 4(i)-4(j), 10(d), 201, 251, 303(r), and 706 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 152,
    154(i)-4(j), 160(d), 201, 251, 303(r), and 706, the petitions for
    reconsideration filed by BellSouth and SureWest ARE GRANTED IN PART.

22. IT IS FURTHER ORDERED that the Commission's Consumer and
    Governmental Affairs Bureau, Reference Information Center, SHALL
    SEND a copy of this Order, including the Supplemental Final
    Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy
    of the Small Business Administration.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Marlene H. Dortch
>
> Secretary

APPENDIX A

**LIST OF COMMENTERS**

[Comments]{.underline} [Abbreviation]{.underline}

Association for Local Telecommunications Services ALTS

Allegiance Telecom *et. al*

AT&T Corporation AT&T

BellSouth Corporation BellSouth

Catena Networks , Inc. Catena

Cellular Mobile Systems of St Cloud

Covad Communications Covad

El Paso Networks/Fibernet/ McLeodUSA

High Tech Broadband Coalition

MCI MCI

New South Communication, Inc./ Comptel, Inc./ Ascent Alliance

PACE Coalition PACE

Qwest Communications Qwest

Rural Independent Competitive Alliance RICA

SBC Communications, Inc. SBC

Sprint Communications, Inc. Sprint

Talk America Inc./ Nu Vox Inc./ XO Communications Inc.

Verizon Communications, Inc. Verizon

Z-Tel Communications, Inc.

[Reply Comments]{.underline}

Allegiance Telecom *et. al.*

AT&T Corporation AT&T

AT&T Wireless

BellSouth Corporation

Coalition for High-Speed Online Internet Competition

and Enterprise CHOICE

Earthlink, Inc.

El Paso Networks/Fibernet/McLeodUSA

Marconi Corporation Marconi

National Association of State Utility

Consumer Advocates NASUCA

Nextel Communications

Qwest Communications Qwest

SBC Communications, Inc. SBC

SureWest Communications SureWest

Telecommunications Research and Action Center *et.al.*

T-Mobile USA, Inc.

Verizon Communications, Inc.

**APPENDIX B -- FINAL RULES**

PART 51 of Title 47 of the Code of Federal Regulations is amended as
follows:

**PART 51 -- INTERCONECTION**

23. Section 51.319 is amended by revising paragraph (a)(3) as follows:

**[§ 51.319 Specific unbundling requirements]{.underline}.**

\(a\) \*\*\*

> \(3\) [Fiber loops]{.underline}.
>
> \(i\) [Definitions.]{.underline}
>
> \(A\) [Fiber-to-the-home loops.]{.underline} A fiber-to-the-home loop
> is a local loop consisting entirely of fiber optic cable, whether dark
> or lit, serving an end user's customer premises or, in the case of
> predominantly residential multiple dwelling units (MDUs), a fiber
> optic cable, whether dark or lit, that extends to the multiunit
> premises' minimum point of entry (MPOE).
>
> \(B\) [Fiber-to-the-curb loops]{.underline}. A fiber-to-the-curb loop
> is a local loop consisting of fiber optic cable connecting to a copper
> distribution plant that is not more than 500 feet from the customer's
> premises or, in the case of predominantly residential MDUs, not more
> than 500 feet from the MDU's MPOE. The fiber optic cable in a
> fiber-to-the-curb loop must connect to a copper distribution plant at
> a serving area interface from which every other copper distribution
> subloop also is not more than 500 feet from the respective customer's
> premises.
>
> \(ii\) [New builds]{.underline}. An incumbent LEC is not required to
> provide nondiscriminatory access to a fiber-to-the-home loop or a
> fiber-to-the-curb loop on an unbundled basis when the incumbent LEC
> deploys such a loop to an end user's customer premises that previously
> has not been served by any loop facility.
>
> \(iii\) [Overbuilds]{.underline}. An incumbent LEC is not required to
> provide nondiscriminatory access to a fiber-to-the-home loop or a
> fiber-to-the-curb loop on an unbundled basis when the incumbent LEC
> has deployed such a loop parallel to, or in replacement of, an
> existing copper loop facility, except that:
>
> \(A\) The incumbent LEC must maintain the existing copper loop
> connected to the particular customer premises after deploying the
> fiber-to-the-home loop or the fiber-to-the-curb loop and provide
> nondiscriminatory access to that copper loop on an unbundled basis
> unless the incumbent LEC retires the copper loops pursuant to
> paragraph (a)(3)(iv) of this section.
>
> \(B\) An incumbent LEC that maintains the existing copper loops
> pursuant to paragraph (a)(3)(iii)(A) of this section need not incur
> any expenses to ensure that the existing copper loop remains capable
> of transmitting signals prior to receiving a request for access
> pursuant to that paragraph, in which case the incumbent LEC shall
> restore the copper loop to serviceable condition upon request.
>
> \(C\) An incumbent LEC that retires the copper loop pursuant to
> paragraph (a)(3)(iv) of this section shall provide nondiscriminatory
> access to a 64 kilobits per second transmission path capable of voice
> grade service over the fiber-to-the-home loop or fiber-to-the-curb
> loop on an unbundled basis.
>
> \(iv\) Retirement of copper loops or copper subloops. Prior to
> retiring any copper loop or copper subloop that has been replaced with
> a fiber-to-the-home loop or a fiber-to-the-curb loop, an incumbent LEC
> must comply with:
>
> \(A\) The network disclosure requirements set forth in section
> 251(c)(5) of the Act and in § 51.325 through § 51.335;and
>
> \(B\) Any applicable state requirements.

\*\*\*\*\*

24. Section 51.325 is amended by revising paragraph (a)(4) to read as
    follows:

**[§ 51.325 Notice of network changes: Public notice
requirement]{.underline}.**

\(a\) \*\*\*

> \(4\) Will result in the retirement of copper loops or copper
> subloops, and the replacement of such loops with fiber-to-the-home
> loops or fiber-to-the-curb loops, as those terms are defined in\
> § 51.319(a)(3).

\*\*\*\*\*

25. Section 51.331 is amended by revising paragraph (c) to read as
    follows:

    **[§ 51.331 Notice of network changes: Timing of
    notice]{.underline}.**

\*\*\*\*\*

\(c\) Competing service providers may object to incumbent LEC notice of
retirement of copper loops or copper subloops and replacement with
fiber-to-the-home loops or fiber-to-the-curb loops in the manner set
forth in § 51.333(c).

26. Section 51.333 is amended by revising paragraphs (b) and (c)
    introductory text, and by revising paragraph (f) to read as follows:

**[§ 51.333 Notice of Network Changes: Short term notice, objections
thereto and objections to retirement of copper loops or copper
subloops]{.underline}.**

\*\*\*\*\*

\(b\) [Implementation date]{.underline}. The Commission will release a
public notice of filings of such short term notices or notices of
replacement of copper loops or copper subloops with fiber-to-the-home
loops or fiber-to-the-curb loops. The effective date of the network
changes referenced in those filings shall be subject to the following
requirements:

> \(i\) [Short term notice]{.underline}. Short term notices shall be
> deemed final on the tenth business day after the release of the
> Commission's public notice, unless an objection is filed pursuant to
> paragraph (c) of this section.
>
> \(ii\) [Replacement of copper loops or copper subloops with
> fiber-to-the-home loops or fiber-to-the-curb loops]{.underline}.
> Notices of replacement of copper loops or copper subloops with
> fiber-to-the-home loops or fiber-to-the-curb loops shall be deemed
> approved on the 90th day after the release of the Commission's public
> notice of the filing, unless an objection is filed pursuant to
> paragraph (c) of this section. Incumbent LEC notice of intent to
> retire any copper loops or copper subloops and replace such loops or
> subloops with fiber-to-the-home loops or fiber-to-the-curb loops shall
> be subject to the short term notice provisions of this section, but
> under no circumstances may an incumbent LEC provide less than 90 days
> notice of such a change.

\(c\) [Objection procedures for short term notice and notices of
replacement of copper loops or copper subloops with fiber-to-the-home
loops or fiber-to-the-curb loops]{.underline}. An objection to an
incumbent LEC's short term notice or to its notice that it intends to
retire copper loops or copper subloops and replace such loops or
subloops with fiber-to-the-home loops or fiber-to-the-curb loops may be
filed by an information service provider or telecommunications service
provider that directly interconnects with the incumbent LEC's network.
Such objections must be filed with the Commission, and served on the
incumbent LEC, no later than the ninth business day following the
release of the Commission's public notice. All objections filed under
this section must:

\*\*\*\*\*

\(f\) [Resolution of objections to replacement of copper loops or copper
subloops with fiber-to-the-home loops or fiber-to-the-curb
loops]{.underline}. An objection to a notice that an incumbent LEC
intends to retire any copper loops or copper subloops and replace such
loops or subloops with fiber-to-the-home loops or fiber-to-the-curb
loops shall be deemed denied 90 days after the date on which the
Commission releases public notice of the incumbent LEC filing, unless
the Commission rules otherwise within that time. Until the Commission
has either ruled on an objection or the 90-day period for the
Commission's consideration has expired, an incumbent LEC may not retire
those copper loops or copper subloops at issue for replacement with
fiber-to-the-home loops or fiber-to-the-curb loops.

**STATEMENT OF**

**CHAIRMAN MICHAEL K. POWELL**

> *Re: Review of the Section 251 Unbundling Obligations for Incumbent
> Local Exchange Carriers; Implementation of the Local Competition
> Provisions of the Telecommunications Act of 1996 (CC Docket Nos.
> 01-338, 96-98); Deployment of Wireline Services Offering Advanced
> Telecommunications Capability* *(CC Docket No. 98-147), Order on
> Reconsideration*

Deep fiber networks offer consumers a "triple play" of voice, video and
data services and an alternative to cable. By limiting the unbundling
obligations of incumbents when they roll out deep fiber networks to
residential consumers, we restore the marketplace incentives of carriers
to invest in new networks.

This item follows on from the *Triennial Review Order*, where the
Commission limited the unbundling obligations imposed on mass market
fiber-to-the-home (FTTH) deployments to remove disincentives to the
deployment of advanced telecommunications facilities in the mass market.
These measures have proven a success in driving the deployment of next
generation broadband. Today's order promotes incumbent LEC investment in
broadband facilities by extending the FTTH rules to fiber-to-the-curb
(FTTC) loops, as well. FTTC and FTTH technologies have different
technological and cost characteristics. Carriers are continually
evaluating new equipment and transmission technologies that offer
exceptionally fast connections. This dynamic may lead individual
carriers to prefer different FTTH or FTTC technologies in different
circumstances. The approach in this item is to ensure that regulation
does not skew that choice one way or another -- so long as consumers
receive the fully panoply of next-generation services. Our Section 706
interests are satisfied when consumers experience speed of 20 Mbs or
higher, speeds that are well in excess of today's DSL or cable modem
services.

There is, however, an important limiting principle in this item: our
rules demand that carriers deploy fiber deep into neighborhoods --
within 500 feet of a customers' home. Our policy is designed to remove
regulatory barriers to these risky investments; but we will remain
watchful of requests that would back the Commission up from the
broadband future. Consumers deserve information at the speed of light
and by taking action today, we move one step closer to that result.

**STATEMENT OF\
COMMISSIONER KATHLEEN Q. ABERNATHY\
**

> *Re: Review of Section 251 Unbundling Obligations of Incumbent Local
> Exchange Carriers; Implementation of the Local Competition Provisions
> of the Telecommunications Act of 1996; Deployment of Wireline Services
> Offering Advanced Telecommunications Capability, CC Docket Nos.
> 01-338, 96-98 & 98-147, Order on Reconsideration*

This Order represents an important step in the Commission's ongoing
effort to encourage the deployment of next-generation broadband
facilities to the mass market. In the Triennial Review Order, I strongly
supported the Commission's decision to exempt fiber-to-the-home (FTTH)
deployments from unbundling requirements. This relief was necessary to
restore incentives to make substantial investments of capital, which
come with no assurance of any near-term payoff. Because the factors
supporting relief for FTTH are also applicable to fiber-to-the-curb
(FTTC) deployments, I am pleased that we are now providing both
architectural approaches the same degree of regulatory relief. In
particular, FTTC requires massive capital expenditures, just as FTTH
does, and unbundling significantly dampens investment incentives; and
wireline carriers face substantial competition in the broadband market ―
particularly from cable operators ― regardless of whether they deploy
FTTH or FTTC. In light of these and other factors, I see no reason why
our regulatory framework should favor one type of architecture over the
other. Rather, deployment decisions should turn on business
considerations.

As I noted in our recent Order extending FTTH relief to fiber loops
serving predominantly residential multiple dwelling units, our
deregulatory action is achieving its desired impact as carriers are
accelerating plans to deploy fiber to the home. I am optimistic that
this Order will further spur investment and, in turn, will prompt the
delivery of exciting new broadband services to millions of consumers.

**DISSENTING STATEMENT OF\
COMMISSIONER MICHAEL J. COPPS**

Re: *Review of the Section 251 Unbundling Obligations for Incumbent
Local*

*Exchange Carriers, Implementation of the Local Competition Provisions
of the*

*Telecommunications Act of 1996, Deployment of Wireline Services
Offering*

*Advanced Telecommunications Capability (CC Docket Nos. 01-338, 96-98,*

*98-147)*

Though today's Order speaks in glowing terms about broadband relief, the
reality is far less radiant. I don't believe competitive
telecommunications have been faring very well under our watch and this
particular proceeding strikes me as yet another in a series of
prescriptions this Commission is willing to write to end competitive
access to last mile facilities. It seems every month brings a new
onslaught.

I did not support the basic approach embraced here when the Commission
set out to restrict access to fiber loops in the *Triennial Review*. So
it will surprise no one that I do not support it here with the majority
venturing even deeper into the denial of access to bottleneck
facilities. By expanding the fiber-to-the-home unbundling exemption to
fiber-to-the-curb architectures---a huge step even in light of the
dramatic competitive restrictions in the *Triennial Review*---this
decision restricts broadband competition for residential consumers. It
also constitutes an ominous precedent for the small business community.
Neither does it bode well for independent providers of VoIP services who
don't own or control the physical layer of the network.

Here is why I think this approach is dangerous. The loop represents the
prized last mile of communications. Putting it beyond the reach of
competitors can only entrench incumbents who already hold sway. Monopoly
control of the last mile created all kinds of problems for basic
telephone service in the last century, and now we seem bent on
replicating that sad story for advanced services in the digital age.
Unfortunately, the digital age is going to take a lot longer to get here
because of the blows we are inflicting on competition. In the *Triennial
Review*, the majority started down a hazardous path. They began by
exempting fiber-to-the-home loops from competition. Last summer the
majority extended this exemption to "primarily residential" buildings.
In doing so, they blurred the line between mass market and small
business customers. As a result, millions of small businesses located in
buildings that also have residential apartments are now going to be
denied the enhanced services and lower prices that competition can
bring. Now, today, the Commission treks even further down this road by
exempting fiber-to-the-curb facilities from competition. And they add to
the damage by adopting an incomprehensible routine network modification
policy.

If we aren't going to listen to consumers, one would think this
Commission would at least listen to the investors who wrote us again
last week that our broadband policies are undermining competition,
undermining facilities-based carriers who need last-mile access to
service small business customers, and undermining the confidence of
investors who want to put money into this kind of competition---in fact
who have already done so!

It doesn't take a compass to see what direction this is heading. With
fewer and fewer loops available to competitors, more and more control
will be wrestled away from consumers and placed with the entrenched
owner of the last mile facility. By shutting off the last mile to
competitors, the Commission is not ushering in a new era of broadband.
It is returning to the failed and non-competitive policies of the past.
Residential consumers, small businesses, edge providers of VoIP and
others who rely on competitive broadband will be stuck with the
consequences, and the consequences will be with us for a long time and
will, I predict, kick us further down that broadband penetration ladder
where your country and mine now ranks Number 11. Number 11. I think the
policy is wrong, I think it's dangerous, I think it runs against the
direction set by Congress, and I feel compelled to dissent.

**STATEMENT OF**

**COMMISSIONER KEVIN J . MARTIN**

*Re: Review of the Section 251 Unbundling Obligations of Incumbent Local
Exchange Carriers*, *Implementation of the Local Competition Provisions
of the Telecommunications Act of 1996*; *Deployment of Wireline Services
Offering Advanced Telecommunications Capability*; Order on
Reconsideration, CC Docket Nos. 01-338, 96-98, 98-147.

Today, the Commission continues its effort to promote the deployment of
new broadband networks throughout the nation. Investment in broadband
facilities and high-speed networks is critical to providing American
consumers with 21^st^ century advanced services and capabilities.

In providing the same regulatory relief for fiber-to-the-curb ("FTTC")
loops as we established for fiber-to-the-premises ("FTTP") loops, we
encourage the deployment of new packetized fiber networks and bring the
potential for new advanced services closer to the American consumer.

I am pleased that today's action continues our effort to lift legacy
regulations on new broadband investment. We also clarify that our
intention was to preserve access to the incumbent LECs' existing network
facilities, and to provide access to DS-1 loops only over TDM capable
hybrid network facilities and not over packetized network facilities. In
the Triennial Review Order, we held that ILECs need not unbundle their
packet-based networks, including any packetized transmission path.

In particular, we recognize that where ILECs deploy new packet-based
networks they nevertheless may need to hand-off a signal to some
customers in TDM format in order to be compatible with an end user's
customer premises equipment. The decision makes clear that carriers that
choose to deploy new packet-based networks will not be required to
unbundle their new packet-based networks regardless of whether they hand
off a signal in a TDM format to any such customer.

I look forward to working with my colleagues on our on-going effort to
ensure that we provide significant relief from legacy regulations to
continue to spur investment and deployment of new packetized networks
and facilities that will bring new broadband services to all Americans
throughout the nation.

**STATEMENT OF**

**COMMISSIONER JONATHAN S. ADELSTEIN**

**CONCURRING IN PART, DISSENTING IN PART**

*Re: Review of Section 251 Unbundling Obligations of Incumbent Local
Exchange Carriers, Implementation of the Local Competition Provisions of
the Telecommunications Act of 1996, Deployment of Wireline Service
Offering Advanced Telecommunications Capability, CC Docket Nos. 01-338,
96-98, 98-147*

In this Order, we once again reconsider portions of our Triennial Review
Order and our unbundling rules for high-speed fiber loops capable of
delivering advanced data, video and voice service to the mass market.
Throughout this proceeding, I have sought to take a careful and balanced
view of the benefits and burdens of our unbundling rules. In our prior
Orders, that approach led me to support measured unbundling relief for
broadband investment in so-called "greenfield areas," where there is no
existing loop plant and competitors and incumbents stand on equal
footing. I concur in much of this Order in that I support granting
targeted additional unbundling relief for "fiber-to-the curb" (FTTC)
loops to serve mass market customers in greenfield areas. I cannot,
however, join in the full decision because it is unnecessarily overbroad
and lacks the analytical depth to address the specific requirements of
the Act.

Ensuring that all Americans have reasonable and timely access to
broadband services is our charge under the Act and is an issue of
critical importance to the health of our economy and the vibrancy of our
nation. I concur in today's decision because it extends symmetry to our
treatment of two closely related network architectures,
fiber-to-the-home (FTTH) and FTTC, each of which make possible the next
generation broadband services that Congress directed us to promote.
Given the close functional characteristics of FTTH and FTTC, I support
the Order's conclusion that unbundling relief in greenfield areas should
encourage investment in broadband facilities to serve mass market
customers.

The decision to impose or lift unbundling requirements under section 251
is not a trivial matter. The Act's local competition provisions are of
enormous importance to providers, both competitors and incumbents,
alike, and, ultimately, to American consumers. Consistent with Congress'
vision, where barriers to deployment are equivalent, we should give
providers every incentive to invest in and roll-out next generation
facilities that will bring the benefit of advanced services to American
consumers. That is what the Commission does in the "greenfields" portion
of this Order. I can only concur in my support, however, because I
believe that this Order could have provided much more analytical depth.
The Order is lacking in its factual consideration of impairment, failing
to address in any comprehensive way the level of competition between
incumbents and new entrants to deploy FTTC or FTTH loops. One predicate
of the original Triennial Review Order was that unbundling relief would
create incentives for both incumbents and competitors to deploy last
mile FTTH loops. Yet, the Order includes no new analysis of the level of
FTTH deployment to mass market customers by competitors, whether
intramodal or intermodal, despite the fact that this approach has now
been in place for well-over a year and it has been over two years since
the record closed on the original proceeding.

The lack of analysis of deployment by competitors is perhaps more stark
in the consideration of so-called brownfield developments, where
providers are overbuilding their existing networks. In my view, the
Commission once again fails to delve deeply to address these very
different factual scenarios. I have similar concerns about the Order's
revision of our network modification rules, which seems to invite more
questions than it answers. Given this lack of evidence and analysis, I
cannot join these portions of the Order.

I am also concerned that, despite the functional similarities between
FTTH and FTTC architectures, the Commission moves the bar in this Order
without a clear vision for the evolution of these technologies. By
extending relief here we shift the clear distinctions drawn between FTTH
loops and "hybrid loops," which use combinations of fiber and copper
technology and which warranted a separate analysis and regulatory
treatment under our previous orders. While this Order rests on standards
for functionality supported by industry consensus, I question whether
the Order articulates a clear standard that will serve us for long in
this quickly evolving technological marketplace.

This Order does respond partially to one of my chief concerns about our
prior Order concerning fiber-to-multi-dwelling units, adopted earlier
this year, by explicitly confining its relief to mass market customers.
This is a useful clarification, though the Commission would assist all
parties by providing a clear definition of that line, something that is
once again missing in this item. The importance of competitive choice
for small business consumers has been widely recognized as a driver of
economic growth, so it is unclear why the Commission once again fails to
articulate clearly our rules in this area.

For these reasons, I concur in part and dissent in part.

[^1]: FTTC loop deployments bring fiber from the central office to a
    location near -- but not all the way to -- the customer's premises.
    The fiber is connected to an optical network unit (ONU) or similar
    electronics at that location, from which copper and, often, coaxial
    cable are connected to each customer premises to provide voice,
    multichannel video, and high-speed data services. An ONU typically
    serves, for example, eight to 12 homes. Letter from Glenn Reynolds,
    Vice President -- Federal Regulatory, BellSouth to Marlene H.
    Dortch, Secretary, FCC, CC Docket No. 01-338, Att. at 6 (filed Sept.
    17, 2003); BellSouth Petition at 2-6.

[^2]: *See Review of the Section 251 Unbundling Obligations of Incumbent
    Local Exchange Carriers, Implementation of the Local Competition
    Provisions of the Telecommunications Act of 1996, Deployment of
    Wireline Services Offering Advanced Telecommunications Capability*,
    CC Docket Nos. 01-338, 96-98, 98-147, Report and Order and Order on
    Remand and Further Notice of Proposed Rulemaking, 18 FCC Rcd 16978,
    17145, para. 278 (2003) (*Triennial Review Order*), *corrected by*
    Errata, 18 FCC Rcd 19020 (2003) (*Triennial Review Order Errata*),
    *vacated and remanded in part, affirmed in part, United States
    Telecom Ass'n v. FCC*, 359 F.3d 554 (D.C. Cir. 2004) (*USTA II*).
    The Commission did not strictly define the mass market in its
    *Triennial Review Order*. The Commission has solicited comment on
    how it should define this market in its *Triennial Review Order*
    remand proceeding. *Unbundled Access to Network Elements; Review of
    the Section 251 Unbundling Obligations of Incumbent Local Exchange
    Carriers*, WC Docket No. 04-313, CC Docket No. 01-338, Order and
    Notice of Proposed Rulemaking, FCC 04-179, para. 9 (rel. Aug. 20,
    2004) (*Interim Order and NPRM*).

[^3]: *Triennial Review Order*, 18 FCC Rcd at 17143-45, paras. 275-77.

[^4]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56.
    The 1996 Act amended the Communications Act of 1934, 47 U.S.C. § 151
    et. seq. We refer to these Acts collectively as the "Communications
    Act" or the "Act."

[^5]: Section 153(44) of the Act defines a telecommunications carrier as
    "any provider of telecommunications services, except that such term
    does not include aggregators of telecommunications services (as
    defined in section 226)." 47 U.S.C. § 153(44). Section 153(44) also
    states that "\[a\] telecommunications carrier shall be treated as a
    common carrier under this Act only to the extent that it is engaged
    in providing telecommunications services, except that the Commission
    shall determine whether the provision of fixed and mobile satellite
    service shall be treated as common carriage." *Id.*

[^6]: 47 U.S.C. § 251(c)(3).

[^7]: *Id.* § 251(d)(2).

[^8]: *See Triennial Review Order*, 18 FCC Rcd at 17121, para. 234.

[^9]: *Triennial Review Order*, 18 FCC Rcd at 17121, para. 234; *USTA
    II*, 359 F.3d at 572, 579-80.

[^10]: *Triennial Review Order*, 18 FCC Rcd at 17121, para. 234.

[^11]: *Id.*

[^12]: *USTA II*, 359 F.3d at 578-85.

[^13]: *Triennial Review Order*, 18 FCC Rcd at 17143, para. 275 (2003).

[^14]: *Triennial Review Order*, 18 FCC Rcd at 17144-45, paras. 276-77;
    47 C.F.R. § 51.319(a)(3)(ii).

[^15]: *Triennial Review Order*, 18 FCC Rcd at 17145, para. 277.

[^16]: *Triennial Review Order*, 18 FCC Rcd at 17149-90, paras. 288-89;
    47 C.F.R. §§ 51.319(a)(2)(i), (ii).

[^17]: *Triennial Review Order*, 18 FCC Rcd at 17153-54, para. 296; 47
    C.F.R. § 51.319(a)(2)(iii).

[^18]: *See generally* BellSouth Petition.

[^19]: *Review of the Section 251 Unbundling Obligations of Incumbent
    Local Exchange Carriers, Implementation of the Local Competition
    Provisions of the Telecommunications Act of 1996, Deployment of
    Wireline Services Offering Advanced Telecommunications Capability*,
    CC Docket Nos. 01-338, 96-98, 98-147, Order on Reconsideration, FCC
    04-191 (rel. Aug. 9, 2004) (*MDU Reconsideration Order*). SureWest
    also filed a petition seeking reconsideration of the Commission's
    regulatory treatment of MDUs, among other issues. *See* SureWest
    Petition at 5-7.

[^20]: *MDU Reconsideration Order* at paras. 4-9.

[^21]: *Id*. at paras. 10-11.

[^22]: Parties filing comments in response to BellSouth and other
    Petitions for Reconsideration in this docket are listed in Appendix
    A.

[^23]: BellSouth Petition at 1-9. FTTC loops currently are subject to
    the unbundling rules governing hybrid loops. *Triennial Review
    Order*, 18 FCC Rcd at 17143-44, para. 275 n.811.

[^24]: BellSouth Petition at 5.

[^25]: BellSouth Petition at 6-7.

[^26]: *See, e.g.*, Allegiance *et al*. Comments at 11-12; ALTS Comments
    at 5; AT&T Comments at 6-11; MCI Comments at 9-10; NuVox *et al.*
    Comments at 6, 8; PACE Comments at 11; Sprint Comments at 8; Letter
    from Leonard Ray, Vice President for Business Development, Atlantic
    Engineering Group, to Marlene H. Dortch, Secretary, FCC, CC Docket
    No. 01-338, Att. 2 at 3 (filed June 2, 2004) (Atlantic Engineering
    Group June 2 *Ex Parte* Letter).

[^27]: *See, e.g.*, ALTS Comments at 6, 16; AT&T Comments at 10-11;
    NuVox *et al*. Comments at 8; Letter from Walter Steimel, Jr.,
    Counsel for FTTH Council, to Marlene H. Dortch, Secretary, FCC, CC
    Docket no. 01-338, Att. (filed Dec. 22, 2003) (FTTH Council Dec. 22
    *Ex Parte* Letter).

[^28]: *See* para. 17, *infra*.

[^29]: According to AT&T, BellSouth's petition on FTTC loops may not be
    granted because the evidence relied upon could have been filed
    during the *Triennial Review* proceeding, but was not. AT&T Comments
    at 12 (citing 47 C.F.R. § 1.429(b)). As we held in the *MDU
    Reconsideration Order*, even if we were to determine that
    BellSouth's petition is procedurally flawed under section
    1.429(b)(1) and (2) of our rules, the importance to broadband
    deployment of the reconsideration and clarification we grant would
    warrant our discretionary review of the substance of the petition.
    *MDU Reconsideration* Order, para. 4 n.10; *see also* 47 C.F.R. §
    1.429(b)(3)(a petition that relies on facts not previously presented
    to the Commission will be granted where "\[t\]he Commission
    determines that consideration of the facts relied on is required in
    the public interest."). Therefore, we need not address the
    procedural issue raised by AT&T.

[^30]: As noted above, FTTC deployments often also include coaxial cable
    distribution facilities, in addition to copper. *See supra*,
    n.Error: Reference source not found. We do not include a reference
    to coaxial cable in our definition of FTTC loops, however, because
    there may be some FTTC deployments where it is not needed, and
    because the referenced copper distribution facility -- which is
    present in all FTTC deployments -- sufficiently clarifies the scope
    of FTTC deployments.

[^31]: *See* Marconi Reply at 4-5; Letter from Stephen L. Goodman,
    counsel for Marconi, to Marlene H. Dortch, Secretary, FCC, CC Docket
    No. 01-338, Att. at 6 (filed Dec. 3, 2003) (Marconi Dec. 3 *Ex
    Parte* Letter).

[^32]: *See* Marconi Reply at 5-6; Catena Comments at 9.

[^33]: *See Triennial Review Order*, 18 FCC Rcd at 17142-43, para. 274
    (discussing evidence from Corning that carriers can earn a greater
    return on their FTTH investment due to the ability to offer voice,
    data, video, and other services); BellSouth Petition at 7 (asserting
    that "FTTC affords carriers the same revenue opportunities as
    FTTH"); *see also* HTBC Comments at 9-10; Catena Comments at 9-10;
    Marconi Reply at 9.

[^34]: *Triennial Review Order*, 18 FCC Rcd at 17142-43, para. 274.

[^35]: BellSouth Petition at 6-7; BellSouth Reply at 4; Catena Comments
    at 10, 12; HTBC Comments at 9; Marconi Reply at 12; SBC Comments at
    6-7. This conclusion is not diminished by the claims of competitive
    LECs that, unlike the evidence of competitive FTTH deployment relied
    upon in the *Triennial Review Order*, there is little evidence of
    competitive LEC deployment of FTTC loops or other hybrid loops to
    suggest that competing carriers are not impaired in the absence of
    unbundling. AT&T Comments at 12, 14. While competitive deployment of
    facilities is evidence that there is no impairment, the absence of
    such evidence does not *prove* that competing carriers are impaired
    without unbundled access to such facilities. *Triennial Review
    Order*, 18 FCC Rcd at 17042-43, para. 94. Further, there is evidence
    that competing LECs have, in fact, deployed FTTC. Marconi Reply at
    10.

[^36]: *Triennial Review Order*, 18 FCC Rcd at 17143, para. 275.

[^37]: *Triennial Review Order*, 18 FCC Rcd at 17143, para. 275;
    BellSouth Petition at 6-7; Catena Comments at 10; HTBC Comments at
    9; BellSouth Reply at 4; Marconi Reply at 11.

[^38]: *Triennial Review Order*, 18 FCC Rcd at 17143, para. 275;
    BellSouth Petition at 6-7; HTBC Comments at 9; BellSouth Reply at 4;
    Marconi Reply at 11.

[^39]: *Triennial Review Order*, 18 FCC Rcd at 17144, para. 276.

[^40]: *Triennial Review Order*, 18 FCC Rcd at 17144, para. 277.

[^41]: *See Triennial Review Order*, 18 FCC Rcd at 17121, para. 234. The
    D.C. Circuit affirmed the Commission's use of the "at a minimum"
    clause in this manner to consider investment disincentives pursuant
    to section 706. *USTA II*, 359 F.3d at 580.

[^42]: BellSouth Reply at 5-6; Marconi Reply at 13-16.

[^43]: *See, e.g.*, BellSouth Petition at 4; Marconi Reply at 5-6;
    Catena Comments at 9; Marconi Dec. 3 *Ex Parte* Letter, Att. at 6.

[^44]: BellSouth Reply at 4.

[^45]: The decision to grant additional unbundling relief for FTTC loops
    also is supported by our analysis of the state of intermodal
    competition. Cable companies have widely deployed broadband service,
    and are poised to offer cable telephony on a more widespread basis,
    providing them the ability to offer the voice, high-speed data, and
    multi-channel video triple play of services. *See* *Triennial Review
    Order*, 18 FCC Rcd at 17151, para. 292. Thus, we find that the FTTC
    loop unbundling relief we grant here will give incumbent LECs
    incentives to deploy advanced facilities allowing them to roll out
    their own triple play of services as cable competitors roll out
    theirs.

[^46]: *Triennial Review Order*, 18 FCC Rcd at 17144-45, para. 277; *see
    also* HTBC Comments at 9; BellSouth Reply at 4-5. We reject the
    claims of commenters that the ability to re-use existing copper
    facilities gives incumbent LECs an additional advantage in
    brownfield deployments. *See, e.g.*, Allegiance *et al*. Comments at
    6; ALTS Comments at 8-9 n. 9; AT&T Comments at 14; AT&T Reply at 5
    n.2. We find that incumbent LECs deploying FTTC loops in overbuild
    situations are not necessarily able to re-use existing copper loops
    due to the different network design associated with FTTC loops.
    *See* BellSouth Reply at 4.

[^47]: *See, e.g.*, Allegiance *et al*. Comments at 11-12; ALTS Comments
    at 5; AT&T Comments at 6-11; MCI Comments at 9-10; NuVox *et al.*
    Comments at 8; PACE Comments at 11; Sprint Comments at 8.

[^48]: *Triennial Review Order*, 18 FCC Rcd at 17150, para. 290.

[^49]: *Id*.

[^50]: *USTA II*, 359 F.3d at 581-82.

[^51]: *Id*. (observing that while some deployment of fiber feeder and
    associated broadband technology had occurred, deployment had not
    been widespread). Indeed, the record indicates that even within
    BellSouth territory, 93% of users do not have access to FTTC loops.
    Letter from Jonathan Banks, General Attorney, BellSouth to Marlene
    H. Dortch, Secretary, FCC, CC Docket No. 01-338, Att. at 2-3 (filed
    July 13, 2004) (BellSouth July 13 *Ex Parte* Letter).

[^52]: Marconi Dec. 3 *Ex Parte* Letter, Att. at 2.

[^53]: In particular, BellSouth, Verizon and SBC issued a Request for
    Quote for passive optical networking solutions and Verizon and SBC
    both have announced specific FTTH loop deployment plans. Letter from
    Dan Tatarka, Executive Director, FTTH Council, to Marlene H. Dortch,
    Secretary, FCC, CC Docket No. 01-338 at 11 (filed Feb. 13, 2004)
    (FTTH Council Feb. 13 *Ex Parte* Letter); *see also, e.g.*, Catena
    Comments at 7-8 (noting increased demand for equipment); Verizon
    News Release, *Verizon, in Historic First, Begins Large Scale
    Rollout of Advanced Fiber-Optic Technology with Keller, Texas,
    Deployment; Announces Plans for Offering New Services* (rel. May 19,
    2004); SBC News Release, *SBC Communications Announces Advances in
    Initiative to Develop IP-Based Residential Network for Integrated
    Video, Internet, VoIP Services* (rel. June 22, 2004).

[^54]: *Triennial Review Order*, 18 FCC Rcd at 17150, para. 290; *see
    also* Marconi Reply at 14 (asserting that competing carriers have
    sought to avoid investing in their own facilities when they can take
    advantage of incumbent LECs' financial risk in deploying broadband
    facilities through unbundled access to such facilities); BellSouth
    July 13 *Ex Parte* Letter, Att. at 2-3 (contending that unbundling
    relief for FTTC loops will provide both incumbent LECs and
    competitive LECs with incentives to invest in FTTC loops).

[^55]: *USTA II*, 359 F.3d at 584.

[^56]: AT&T Comments at 6-11, 20; NuVox *et al*. Comments at 6; PACE
    Comments at 11; Atlantic Engineering Group June 2 *Ex Parte* Letter,
    Att. 2 at 3. In addition, some commenters note that the long-term
    future capabilities of entirely fiber architectures exceed that of
    fiber architectures that include even a small amount of copper, such
    as FTTC loops. *See, e.g.*, Letter from Ruth Milkman, Counsel for
    MCI, to Marlene H. Dortch, Secretary, FCC, CC Docket No. 01-338,
    Att. at 2 (filed July 1, 2004); FTTH Council Feb. 13 *Ex Parte*
    Letter at 7; Letter from Jonathan Askin, ALTS, to Marlene H. Dortch,
    Secretary, FCC, CC Docket No. 01-338, at 6 (filed Jan. 23, 2004).
    However, as the Commission concluded in the *MDU Recon Order*, where
    facilities today provide the capability of offering broadband
    capability that is enhanced compared to copper networks (or even
    other hybrid loop architectures), the goals of section 706 are
    furthered by the deployment of such facilities. *MDU Reconsideration
    Order*, para. 11 n.33. Since FTTC loops provide such advanced
    services capability, we reject commenters' claims that the
    differences between FTTH loops and FTTC loops preclude granting
    equivalent unbundling regulation for those architectures.

[^57]: BellSouth Reply at 6.

[^58]: *See, e.g.*, Marconi Reply at 10 (citing customers of Marconi
    FTTC equipment that are providing voice, video and data services).

[^59]: *Triennial Review Order*, 18 FCC Rcd at 17145, para. 278. We note
    that the evidence available to date indicates that we were correct
    in our prediction. *See supra*, n.53.

[^60]: *See, e.g.*, Allegiance *et al*. Comments at 10; NuVox *et al*.
    Comments at 5, 9.

[^61]: BellSouth Reply at 6.

[^62]: *See* 47 C.F.R. § 51.307(e) ("An incumbent LEC shall provide to a
    requesting telecommunications carrier technical information about
    the incumbent LEC's network facilities sufficient to allow the
    requesting carrier to achieve access to unbundled network elements
    consistent with the requirements of this section."); *see also
    Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996*, CC Docket No. 96-98, Third Report
    and Order and Fourth Further Notice of Proposed Rulemaking, 15 FCC
    Rcd 3696, 3885-86, paras. 428-29 (1999) (*UNE Remand Order*).

[^63]: *See, e.g.*, ALTS Comments at 6, 16; AT&T Comments at 10-11;
    NuVox *et al*. Comments at 8; FTTH Council Dec. 22 *Ex Parte*
    Letter, Att.

[^64]: *See, e.g.*, HTBC Comments at 10 ("Carriers should be permitted
    to design their networks based on technological and economic
    considerations, such as the ability to share electronics across
    several customers or to power electronics either in the field or at
    the customer's premises."); Catena Comments at 10 (Carriers "should
    decide which fiber architecture to deploy based on the technical and
    economic merits of FTTC and FTTH, not because of the differing
    regulatory treatment that currently applies to these two
    architectures."); Letter from Sean A. Lev, Counsel for Advanced
    Fibre Communications, to Marlene H. Dortch, Secretary, FCC, CC
    Docket No. 01-338, Att. at 10 (noting that different locations may
    be more suitable for FTTH loops or FTTC loops based on the
    geography, demographics, and construction required); FTTH Council
    Dec. 22 *Ex Parte* Letter, Att. at 18-24 (business case analysis
    supporting the deployment of FTTH loops).

[^65]: *Triennial Review Order*, 18 FCC Rcd at 17371-72, para. 632.

[^66]: *Id.*

[^67]: *Triennial Review Order*, 18 FCC Rcd at 17153, para. 294. In
    *USTA II,* the D.C. Circuit upheld the Commission's network
    modification rules. *USTA II*, 359 F.3d at 577-78.

[^68]: BellSouth Petition at 17; SureWest Petition at 8.

[^69]: Of course, our rules addressing routine network modifications and
    access to existing TDM capabilities of hybrid loops apply only where
    the loop transmission facilities are subject to unbundling, and do
    not apply to FTTH loops or to the FTTC loops.

[^70]: Verizon Oct. 6 *Ex Parte* Letter at 2.

[^71]: *See* 5 U.S.C. § 603. The RFA, *see* 5 U.S.C. §§ 601-12, has been
    amended by the Small Business Regulatory Enforcement Fairness Act of
    1996 (SBREFA), Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).

[^72]: *See Review of the Section 251 Unbundling Obligations of
    Incumbent Local Exchange Carriers, Implementation of the Local
    Competition Provisions of the Telecommunications Act of 1996,
    Deployment of Wireline Services Offering Advanced Telecommunications
    Capability*, CC Docket Nos. 01-338, 96-98, 98-147, Notice of
    Proposed Rulemaking, 16 FCC Rcd 22781 (2001) (*NPRM*).

[^73]: *See Review of the Section 251 Unbundling Obligations of
    Incumbent Local Exchange Carriers, Implementation of the Local
    Competition Provisions of the Telecommunications Act of 1996,
    Deployment of Wireline Services Offering Advanced Telecommunications
    Capability*, CC Docket Nos. 01-338, 96-98, 98-147, Report and Order
    and Order on Remand and Further Notice of Proposed Rulemaking, 18
    FCC Rcd 16978, 17416-442, paras. 730-86 (2003) (*Triennial Review
    Order*) (subsequent history omitted).

[^74]: *See* 5 U.S.C. § 604.

[^75]: For a more detailed discussion of the impairment analysis and
    section 706 balancing, *see supra* paras. 11-19.

[^76]: 5 U.S.C. § 604(a)(3).

[^77]: 5 U.S.C. § 601(6).

[^78]: 5 U.S.C. § 601(3) (incorporating by reference the definition of
    "small-business concern" in the Small Business Act, 15 U.S.C. §
    632). Pursuant to 5 U.S.C. § 601(3), the statutory definition of a
    small business applies "unless an agency, after consultation with
    the Office of Advocacy of the Small Business Administration and
    after opportunity for public comment, establishes one or more
    definitions of such term which are appropriate to the activities of
    the agency and publishes such definition(s) in the Federal
    Register."

[^79]: 15 U.S.C. § 632.

[^80]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    Page 5-5 (Aug. 2003) (*Trends in Telephone Service August 2003
    Report*). This source uses data that are current as of December 31,
    2001.

[^81]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517110.

[^82]: 15 U.S.C. § 632.

[^83]: Letter from Jere W. Glover, Chief Counsel for Advocacy, SBA, to
    William E. Kennard, Chairman, FCC (May 27, 1999). The Small Business
    Act contains a definition of "small-business concern," which the RFA
    incorporates into its own definition of "small business." *See* 15
    U.S.C. § 632(a) (Small Business Act); 5 U.S.C. § 601(3) (RFA). SBA
    regulations interpret "small business concern" to include the
    concept of dominance on a national basis. 13 C.F.R. § 121.102(b).

[^84]: 13 C.F.R. § 121.201, NAICS code 517110.

[^85]: 1997 Economic Census, Establishment and Firm Size, Table 5, NAICS
    code 513310 (issued Oct. 2000).

[^86]: *Id.* The census data do not provide a more precise estimate of
    the number of firms that have employment of 1,500 or fewer
    employees; the largest category provided is "Firms with 1,000
    employees or more."

[^87]: 13 C.F.R. § 121.201, North American Industry Classification
    System (NAICS) code 517110.

[^88]: FCC, Wireline Competition Bureau, Industry Analysis and
    Technology Division, "Trends in Telephone Service" at Table 5.3,
    Page 5-5 (Aug. 2003) (*Trends in Telephone Service August 2003
    Report*). This source uses data that are current as of December 31,
    2001.

[^89]: 13 C.F.R. § 121.201, NAICS code 517510.

[^90]: *Id.*

[^91]: U.S. Census Bureau, 1997 Economic Census, Subject Series:
    Information, "Establishment and Firm Size (Including Legal Form of
    Organization)," Table 4 (issued October 2000).

[^92]: *Id.*

[^93]: 5 U.S.C. § 603(c)(1) -- (c)(4).

[^94]: *See* paras. 7-8, *supra*.

[^95]: *See* paras. 7-9, *supra*.

[^96]: *See* 5 U.S.C. § 801(a)(1)(A).