**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

National Exchange Carrier ) CC Docket No. 99-316

Association, Inc. ) RM 9486

)

Petition to Amend Section 69.3 of )

the Commission\'s Rules )

)

**ORDER**

**Adopted: October 23, 2000 Released: October 25, 2000**

By the Commission:

# INTRODUCTION

1.  In this Order, we revise our rules regarding the required notice
    period for changes in participation in the National Exchange Carrier
    Association, Inc.'s (NECA\'s) access tariffs. Specifically, we are
    changing the carrier election deadline for participation in
    association tariffs from December 31 of the previous year to March 1
    of the tariff year.

# BACKGROUND

2.  Section 69.3 of the Commission\'s rules governs the filing of access
    service tariffs.[^1] Under this section, NECA is responsible for
    filing an access service tariff as agent for all telephone companies
    that participate in the association tariff. Under section 69.3, the
    association tariff is to be filed with a scheduled effective date of
    July 1. Carriers are currently required to notify NECA of any change
    in their association tariff participation by December 31 of the year
    preceding the filing of the tariff. At the time we adopted this
    notice requirement, NECA was required to file its tariff on April 2,
    90 days prior to the effective date.

3.  In 1997 the Commission streamlined its tariff filing rules, allowing
    carriers to file their annual access tariffs on 7 days notice for
    filings that solely decrease rates, or 15 days notice for filings
    that include rate increases.[^2] The streamlined notice requirement
    applies to NECA\'s association access service tariff, allowing NECA
    to file the tariff on June 16 or June 24, rather than on April 2,
    for an effective date of July 1. In addition to the streamlined
    notice period, NECA now employs electronic data collection and
    processing routines that were not in use when section 69.3 was
    adopted. These more efficient data collection techniques
    significantly reduce the time required to assemble and analyze data
    for NECA\'s tariff filing. According to NECA, the tariff
    streamlining rules and improvements in data collection management
    eliminate the need for carriers to provide six months advance notice
    to NECA of planned tariff participation changes.[^3]

4.  In a petition for rulemaking filed on February 8, 1999, NECA
    requested that the Commission amend section 69.3 of its rules to
    allow carriers to notify NECA of their tariff participation changes
    by March 1 of the tariff year instead of requiring notification by
    December 31 of the preceding year. The Commission granted NECA's
    petition and issued a Notice of Proposed Rulemaking.[^4] Two
    parties, the National Telephone Cooperative Association (NTCA) and
    the United States Telephone Association (USTA), filed comments in
    response to the NPRM.[^5] Both NTCA and USTA supported NECA\'s
    request to change the notification date from December 31 to March 1.

# DISCUSSION

5.  We hereby amend our rules to extend the deadline by which carriers
    must notify NECA of any change in their participation in the
    association's access tariffs from December 31 of the previous year
    to March 1 of the tariff year. We agree with NECA that changes in
    tariff notification periods and advancements in data collection and
    processing methods warrant a shorter timeframe for carriers to
    provide notice of tariff participation changes.[^6] In addition, as
    NECA noted in its petition, shorter notice periods will not
    disadvantage NECA and may help smaller companies make
    better-informed decisions regarding tariff participation.[^7] For
    instance, because the deadline by which NECA must file proposed
    revisions to its average schedule formulas is December 31, companies
    that rely on these formulas to compute interstate access
    compensation will have more time to analyze the proposed revisions
    before deciding whether to participate in NECA\'s access tariff.

6.  Therefore, we are amending Part 69 of our rules to allow carriers
    until March 1 of each tariff year to notify NECA of any changes in
    tariff participation.

# ADMINISTRATIVE MATTERS

## Paperwork Reduction Act

7.  The action contained herein has been analyzed with respect to the
    Paperwork Reduction Act of 1995 and found not to impose new or
    modified reporting and recordkeeping requirements or burdens on the
    public. Therefore implementation of the amended rule extending the
    date by which carriers must notify NECA of changes in their
    association access tariff participation will not be subject to
    approval by the Office of Management and Budget (OMB).

## Final Regulatory Flexibility Act Analysis

8.  As required by the Regulatory Flexibility Act (RFA),[^8] an Initial
    Regulatory Flexibility Analysis (IRFA) was incorporated in the
    NPRM.[^9] The Commission sought written public comment on the
    proposals in the NPRM, including comment on the IRFA. This present
    Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA, as
    amended.[^10]

### Need for and Objectives of this Order

9.  As discussed above, NECA has asserted that changes in tariff
    notification periods and advancements in data collection and
    processing methods have facilitated NECA\'s ability to prepare
    association tariffs. Therefore, NECA can receive notifications from
    carriers changing the status of their association tariff
    participation closer to the tariff filing deadline. At NECA\'s
    request, the Commission is amending its rules to extend the deadline
    by which carriers must notify NECA of changes in association tariff
    participation. Specifically, the notification deadline is changed
    from December 31 of the preceding year to March 1 of the tariff
    year. This extension of the notification deadline will provide
    carriers additional time to determine their tariff participation
    status, thus allowing them to make more informed tariff
    participation decisions.

### Summary of Significant Issues Raised by the Public Comments in Response to the IRFA

10. The Commission received no comments addressing the IRFA. However,
    the comments received in response to the NPRM were supportive of the
    change in tariff participation notification date. NTCA's comments
    specifically noted that changing the election deadline to March 1
    would benefit NTCA's members, which are small carriers that are
    "rural telephone companies" as defined in the Telecommunications Act
    of 1996.[^11]

### Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

11. The RFA directs agencies to provide a description of, and, where
    feasible, an estimate of the number of small entities to which the
    rules will apply.[^12] The RFA defines the term "small entity" as
    having the same meaning as the terms "small business," "small
    organization," and "small business concern" under Section 3 of the
    Small Business Act.[^13] 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).[^14]

12. In this FRFA, we consider the potential impact of the Order on all
    local exchange carriers (LECs) that could consider participating in
    NECA\'s association tariffs. Neither the Commission nor the SBA has
    developed a definition for small LECs. The closest applicable
    definition under the SBA rules is for Standard Industrial
    Classification (SIC) category 4,813, telephone communications
    companies other than radiotelephone (wireless) companies.[^15] For
    this category, the SBA has defined a small business to be a small
    entity having no more than 1,500 employees.[^16]

13. We have included small incumbent LECs in the 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."[^17] The SBA\'s
    Office of Advocacy contends that, for RFA purposes, small incumbent
    LECs are not dominant in their field of operation because any such
    dominance is not "national" in scope.[^18] We have therefore
    included small incumbent LECs in this RFA analysis, although we
    emphasize that this RFA action has no effect on the Commission\'s
    analyses and determinations in other, non-RFA contexts.

14. The most reliable source of information regarding the total numbers
    of certain common carrier and related providers nationwide, as well
    as the numbers of commercial wireless entities, appears to be data
    the Commission publishes annually in its *Carrier Locator:
    Interstate Service Providers Report* (*Locator*).[^19] This report
    was compiled using information from Telecommunications Relay Service
    (TRS) fund worksheets filed by carriers, including, *inter alia*,
    LECs, competitive local exchange carriers, interexchange carriers,
    competitive access providers, satellite service providers, wireless
    telephony providers, operator service providers, pay telephone
    operators, providers of telephone toll service, providers of
    telephone exchange service, and resellers.[^20]

15. There are two principle providers of local telephone service;
    incumbent LECs and competing local service providers. However, under
    section 69.3 of the Commission\'s rules, participation in NECA\'s
    access service tariffs is limited to incumbent LECs,[^21] therefore
    the proposed rule changes will not affect competing local service
    providers. According to the most recent *Locator* data, 1,348 filers
    identified themselves as incumbent LECs.[^22] Data set forth in the
    Commission's *Statistics of Communications Common Carriers* (*SOCC*)
    lists 32 incumbent LECs that have more than 1,500 employees.[^23] We
    do not have data specifying the number of incumbent LECs that are
    either dominant in their field of operations or are not
    independently owned and operated, and thus are unable at this time
    to estimate with greater precision the number of incumbent LECs that
    would qualify as small business concerns under the SBA\'s
    definition. Consequently, we estimate that fewer than 1,316
    incumbent LECs are small entities that may be affected by the rules.

### Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

16. This Order adopts a proposed extension of the date by which carriers
    must notify NECA of changes in participation in association tariffs.
    Under the current rules this notification must be provided six
    months prior to the effective date of the tariff, by December 31 of
    the preceding year. The Commission amends its rules to allow
    carriers until March 1 of the tariff year to provide the required
    notification to NECA. The amended rules will not require carriers to
    conduct any new reporting or recordkeeping obligations. Instead,
    carriers will continue to report to NECA any changes in their
    association tariff participation, but this notification will be
    submitted at a later date.

### Steps taken to Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered

17. The rule amendments adopted in this Order are designed to assist all
    carriers in making their association tariff participation elections.
    The extension of the notification date from December 31 to March 1
    may particularly benefit smaller carriers that rely on average
    schedule formulas to compute interstate access compensation, because
    NECA is required to file proposed revisions to these schedules by
    December 31. The extension of the tariff election deadline will
    provide carriers more time to analyze NECA\'s proposed revisions
    before making tariff participation decisions.

### Report to Congress

18. The Commission will send a copy of the Order, including this FRFA,
    in a report to be sent to Congress pursuant to the Small Business
    Regulatory Enforcement Fairness Act of 1996.[^24] In addition, the
    Commission will send a copy of the Order, including this FRFA, to
    the Chief Counsel for Advocacy of the Small Business Administration.
    A copy of the Order and FRFA (or summaries thereof) will also be
    published in the Federal Register.[^25]

# ORDERING CLAUSES

19. **IT IS ORDERED**, pursuant to sections 1, 4(i), 4(j), 201-205, and
    303 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151,
    154(i), 154(j), 201-205, and 303, that this Order **IS HEREBY
    ADOPTED** as described above.

20. **IT IS FURTHER ORDERED** that the provisions of this Order **SHALL
    BE EFFECTIVE** 30 days after publication in the Federal Register.

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

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

Secretary

**APPENDIX A**

######### AMENDMENTS TO THE CODE OF FEDERAL REGULATIONS {#amendments-to-the-code-of-federal-regulations .unnumbered}

**PART 69 - ACCESS CHARGES**

1\. The authority citation continues to read as follows:

Authority: 47 U.S.C. 154, 201, 202, 203, 205, 218, 220, 254, 403.

2.  Amend § 69.3 by revising subparagraphs (e)(6), (e)(9), and (i)(1) to
    read as follows:

**§ 69.3 Filing of access service tariffs.**

\* \* \* \* \*

\(e\) \* \* \*

\(6\) A telephone company or companies that elect to file such a tariff
shall notify the association not later than March 1 of the year the
tariff becomes effective, if such company or companies did not file such
a tariff in the preceding biennial period or cross-reference association
charges in such preceding period that will be cross-referenced in the
new tariff. A telephone company or companies that elect to file such a
tariff not in the biennial period shall file its tariff to become
effective July 1 for a period of one year. Thereafter, such telephone
company or companies must file its tariff pursuant to paragraphs (f)(1)
or (f)(2) of this section.

\* \* \*

\(9\) A telephone company or group of affiliated telephone companies
that elects to file its own Carrier Common Line tariff pursuant to
paragraph (a) of this section shall notify the association not later
than March 1 of the year the tariff becomes effective that it will no
longer participate in the association tariff. A telephone company or
group of affiliated telephone companies that elects to file its own
Carrier Common Line tariff for one of its study areas shall file its own
Carrier Common Line tariff(s) for all of its study areas.

\* \* \* \* \*

\(i\) \* \* \*

\(1\) In addition to the withdrawal provisions of paragraphs (e)(6) and
(9) of this section, a telephone company or group of affiliated
telephone companies that participates in one or more association tariffs
during the current tariff year and that elects to file price cap tariffs
or optional incentive regulation tariffs effective July 1 of the
following tariff year shall notify the association by March 1 of the
following tariff year that it is withdrawing from association tariffs,
subject to the terms of this section, to participate in price cap
regulation or optional incentive regulation.

[^1]: 47 C.F.R. § 69.3.

[^2]: *Implementation of Section 402(b)(1)(A) of the Telecommunications
    Act of 1996*, Report and Order, 12 FCC Rcd 2170, 2219-20 (1997).

[^3]: *See* *National Exchange Carrier Association Inc.*, Petition for
    Rulemaking, RM 9486 at 2 (filed Feb. 8, 1999) (NECA Petition).

[^4]: *National Exchange Carrier Association, Inc. Petition to Amend
    Section 69.3 of the Commission's Rules*, Order and Notice of
    Proposed Rulemaking, 14 FCC Rcd 18252 (1999) (NPRM).

[^5]: The NPRM was published in the Federal Register on August 24, 2000,
    and an additional comment period was granted because of the delay in
    the Federal Register publication. No additional comments were filed.

[^6]: NECA Petition at 2; NTCA Comments at 1-2.

[^7]: NECA Petition at 2-3. *See also* NTCA Comments at 2.

[^8]: *See* 5 U.S.C. § 603. The RFA, 5 U.S.C. § 601 *et. seq.*, has been
    amended by the Contract With America Advancement Act of 1996, Pub.
    L. No. 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA
    is the Small Business Regulatory Enforcement Fairness Act of 1996
    (SBREFA).

[^9]: NPRM, 14 FCC Rcd at 18254-57.

[^10]: *See* 5 U.S.C. § 604.

[^11]: NTCA Comments at 1-2.

[^12]: 5 U.S.C. § 604(a)(3).

[^13]: *Id.* § 601(3).

[^14]: Small Business Act, 15 U.S.C. § 632.

[^15]: 13 C.F.R. § 121.201.

[^16]: *Id*.

[^17]: 5 U.S.C. § 601(3).

[^18]: 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).
    Since 1996, out of an abundance of caution, the Commission has
    included small incumbent LECs in its regulatory flexibility
    analyses. *See, e.g.*, *Implementation of the Local Competition
    Provisions of the Telecommunications Act of 1996*, First Report and
    Order, 11 FCC Rcd 15499, 16144-45 (1996).

[^19]: FCC, Common Carrier Bureau, *Carrier Locator: Interstate Service
    Providers* (Jan. 2000).

[^20]: *Locator* at 1.

[^21]: *See* 47 C.F.R. § 69.2(hh).

[^22]: *See Locator* at Fig. 1.

[^23]: *Statistics of Communications Common Carriers* (1999 ed.) at
    Tables 2.10 and 2.11.

[^24]: *See* 5 U.S.C. § 801(a)(1)(A).

[^25]: *See* 5 U.S.C. § 604(b).