II

106TH CONGRESS

2D SESSION S. 2902

To revise the definition of advanced service, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JULY 20, 2000

Mr. BROWNBACK introduced the following bill; which was read twice and

referred to the Committee on Commerce, Science, and Transportation

A BILL

To revise the definition of advanced service, and for other

purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Broadband Internet

5 Regulatory Relief Act of 2000’’.

6 SEC. 2. REGULATION OF ADVANCED SERVICE

7 (a) IN GENERAL.—Part II of title II of the Commu8 nications Act of 1934 (47 U.S.C. 251 et seq.) is amended

9 by adding at the end thereof the following:
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1 ‘‘SEC. 262. PROVISION OF ADVANCED SERVICE BY INCUM2 BENT LOCAL EXCHANGE CARRIERS.

3 ‘‘(a) IN GENERAL.—Notwithstanding section 2(b) of

4 this Act, or any other provision of law, an incumbent local

5 exchange carrier shall not be subject to the requirements

6 of—

7 ‘‘(1) section 251(c)(1), (c)(2), or (c)(5) with re8 spect to the duty to provide, for the facilities and

9 equipment of any requesting telecommunications

10 carrier, interconnection with or notice of changes re11 garding any packet-based functionality of the local

12 exchange carrier’s network;

13 ‘‘(2) section 251(c)(1) or (c)(3) with respect to

14 any network element that consists of or is created by

15 a packet-switched or successor technology;

16 ‘‘(3) section 251(c)(1) or (c)(4) with respect to

17 the provision of any advanced service;

18 ‘‘(4) section 251(c)(1) or (c)(6) with respect to

19 any premises or structure used solely for network

20 elements described in paragraph (2) of this sub21 section; or

22 ‘‘(5) section 251(c)(1), (c)(2)(3), or (c)(5) with

23 respect to any optical fiber in the incumbent’s dis24 tribution network that is used exclusively to provide

25 telecommunications service to residential subscribers;

26 and
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1 ‘‘(i) that is or was either—

2 ‘‘(I) deployed where previously no out3 side telephone distribution plant existed;

4 ‘‘(II) deployed as a replacement for

5 any outside telephone distribution plant; or

6 ‘‘(III) deployed from a remote ter7 minal to a customer premises; and

8 ‘‘(ii) where the facilities are capable of pro9 viding telephone exchange service, 10 Base T

10 Data (or its equivalent), and VHS-quality

11 video, or are capable of providing all of these

12 services through the upgrade of electronics.

13 Nothing in this subsection shall preclude the Commission

14 or a State from requiring that an incumbent local ex15 change carrier provide an existing copper loop to a local

16 exchange carrier upon request.

17 ‘‘(b) BUILDOUT REQUIREMENTS.—

18 ‘‘(1) An incumbent local exchange carrier or

19 affiliate shall—

20 ‘‘(A) make available advanced service to 80

21 percent of its telephone exchange service cus22 tomers in a State within 3 years of the date of

23 enactment of the Broadband Internet Regu24 latory Relief Act of 2000 where such services
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1 can be provided using an industry-approved

2 standard and existing loop facilities; and

3 ‘‘(B) make available advanced service to

4 100 percent of its telephone exchange service

5 customers in a State within 5 years of that date

6 within 30 days of a bona fide request by any

7 such customer where such services can be pro8 vided using an industry-approved standard and

9 existing loop facilities.

10 ‘‘(2) An incumbent local exchange carrier that

11 satisfies the requirements of paragraph (1), within

12 the time frames set forth therein, shall continue to

13 receive all regulatory relief provided by subsections

14 (a) and (c) for any service or combination of services

15 that consists of, or includes, the offering of a capa16 bility to transmit information using a packet17 switched or successor technology downstream from a

18 provider to a consumer and upstream from a con19 sumer to a provider at a rated speed of 128 kilobits

20 per second or more where advanced service cannot

21 be provided using an industry-approved standard

22 and existing loop facilities.

23 ‘‘(3) If an incumbent local exchange carrier

24 fails to comply with paragraph (1) within the time
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1 frames set forth there, the regulatory relief provided

2 by those subsections shall not apply to it.

3 ‘‘(c) PRICING FLEXIBILITY.—

4 ‘‘(1) COMPETITION FOR ADVANCED SERVICE.—

5 Except as provided in this section, section 251, sec6 tion 254, section 271, and section 272, no advanced

7 service offered by an incumbent local exchange car8 rier nor the facilities used to provide such service

9 shall be subject to common carrier regulation by the

10 Commission or any State in any exchange where ad11 vanced service is being provided by an unaffiliated

12 advanced service provider.

13 ‘‘(2) PETITION.—An incumbent local exchange

14 carrier seeking pricing flexibility under paragraph

15 (1) may file a petition with the Commission seeking

16 such relief. A petition under this paragraph is

17 deemed to have been approved if the Commission

18 does not act on it within 30 days after it is filed.

19 ‘‘(3) UNCONDITIONAL RELIEF.—If the Commis20 sion determines under paragraph (1) that advanced

21 service is being offered by an unaffiliated provider in

22 the manner described in that paragraph, the Com23 mission shall approve the petition of the incumbent

24 local exchange carrier unconditionally.
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1 ‘‘(4) ADVANCED SERVICE OUTSIDE AN INCUM2 BENT’S TERRITORY.—The rates, terms, and condi3 tions of advanced service offered by an incumbent

4 local exchange carrier or its affiliate are not subject

5 to Federal or State regulation in any geographic

6 area in which that carrier, its successor, or assigns

7 was not the local incumbent exchange carrier on

8 February 8, 1996.

9 ‘‘(5) SCHEDULE OF CHARGES.—For any ad10 vanced service that has not been determined by the

11 Commission to be subject to competition under para12 graph (1), the incumbent local exchange carrier fur13 nishing such advanced service shall file with the

14 Commission a schedule of charges and practices for

15 such advanced service in a manner prescribed by the

16 Commission under section 203. Any such schedule of

17 charges and practices shall be deemed lawful and

18 shall be effective 2 days after the date on which it

19 was filed with the Commission unless the Commis20 sion takes action under section 204(a)(1) before the

21 end of that 2-day period.

22 ‘‘(d) NONCOMPLIANCE WITH LOOP PROVISIONING

23 AND COLLOCATION RULES.—

24 ‘‘(1) STATE DETERMINATION.—Except as pro25 vided in paragraph (2), subsections (a) and (c) shall
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1 cease to apply to an incumbent local exchange car2 rier after the date on which a State makes a final

3 determination based on clear and convincing evi4 dence, in response to a complaint filed by another

5 local exchange carrier, that the incumbent local ex6 change carrier has materially failed to comply with

7 the rules of the Commission with respect to colloca8 tion or the rules of the Commission or the State

9 with respect to loop provisioning. The burden of

10 proof shall be on the complainant.

11 ‘‘(2) REINSTATEMENT.—

12 ‘‘(A) IN GENERAL.—An incumbent local

13 exchange carrier to which subsections (a) and

14 (c) have ceased to apply because of a deter15 mination by a State under paragraph (1) may

16 petition the State for a reinstatement of the ap17 plication of those subsections.

18 ‘‘(B) DETERMINATION REQUIRED.—If the

19 State that made the determination described in

20 paragraph (1) subsequently makes a final deter21 mination that the carrier has complied fully

22 with the rule with which the carrier was found,

23 under paragraph (1), not to have complied,

24 then the application of subsections (a) and (c)

25 to that incumbent local exchange carrier shall
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1 be reinstated as of the date of that subsequent

2 final determination.

3 ‘‘(C) DETERMINATION DEEMED AFFIRMA4 TIVE IF STATE FAILS TO ACT WITHIN 90

5 DAYS.—For purposes of subparagraph (B), a

6 State that fails to make a determination on a

7 petition filed under subparagraph (A) within 90

8 days shall be deemed to have made a deter9 mination that the carrier is in full compliance

10 with the rules of the Commission with respect

11 to collocation and the rules of the Commission

12 and the State with respect to loop provisioning.

13 ‘‘(e) REMOTE TERMINALS.—

14 ‘‘(1) An incumbent local exchange carrier using

15 equipment located in a remote terminal to provide

16 advanced services shall have the duty to provide to

17 any requesting telecommunications carrier—

18 ‘‘(A) access to subloop elements at such re19 mote terminal for the provision of advanced

20 services; and

21 ‘‘(B) access to rights of way consistent

22 with section 251(b)(4).

23 ‘‘(2) COLLOCATION NOT REQUIRED.—Nothing

24 in paragraph (1), any other provision of this Act,

25 nor any other provision of law shall require an in-
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1 cumbent local exchange carrier to provide collocation

2 at a remote terminal to any person.

3 ‘‘(f) DEFINITIONS.—For purposes of this section—

4 ‘‘(1) the term ‘incumbent local exchange car5 rier’ has the meaning given to that term by section

6 251(h);

7 ‘‘(2) the term ‘customer premises’ means the

8 customer’s physical property or adjacent easement;

9 and

10 ‘‘(3) the term ‘remote terminal’ means the

11 point in the incumbent local exchange carrier’s net12 work where the electronic capability to provide ad13 vanced service is deployed and where such carrier

14 provides subloop unbundling.’’.

15 SEC. 3. AMENDMENTS.

16 (a) Section 251(b) of the Communications Act of

17 1934 (47 U.S.C. 251(b)) is amended by adding at the end

18 thereof the following:

19 ‘‘Notwithstanding paragraph (5), after the date of enact20 ment of the Broadband Internet Regulatory Relief Act of

21 2000, no local exchange carrier shall be required to make

22 any payment for the transport, delivery, or termination

23 of telecommunications to, or telecommunications that con24 nects to, the Internet or any Internet service provider. The

25 transport, delivery, or termination of telecommunications
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1 to, or telecommunications that connects to, the Internet

2 or any Internet service provider is hereby deemed to be

3 an interstate communication and subject to the exclusive

4 jurisdiction of the Commission. The provisions of this sub5 section following paragraph (5) do not alter the terms of

6 any interconnection agreement in effect on May 10, 2000,

7 during the existing term of any such agreement. Neither

8 section 252(i) nor any other legal or regulatory require9 ment shall require any local exchange carrier to make

10 available to any other telecommunications carrier an inter11 connection arrangement under this subsection that is in

12 an agreement that is in effect on or after May 10, 2000.

13 For the purposes of this subsection, the term ‘existing

14 term’ means the initial period of any interconnection

15 agreement and does not include any period provided for

16 negotiation or any extension of the initial period.’’.

17 (b) Section 251(c)(3) of that Act (47 U.S.C.

18 251(c)(3)) is amended by adding at the end thereof the

19 following: ‘‘An incumbent local exchange carrier shall not

20 be required to provide network elements on an unbundled

21 basis unless those elements are to be used predominantly

22 to provide telephone exchange service.’’.

23 (c) Section 251(f) of that Act (47 U.S.C. 251(f)) is

24 amended by adding at the end thereof the following:
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1 ‘‘(3) EXEMPTION FOR ADVANCED SERVICES.—

2 Neither section 251(c) nor any other common car3 rier regulation shall apply to any local exchange car4 rier with fewer than 2 percent of the nation’s sub5 scriber lines installed in the aggregate with respect

6 to its provision of advanced services. Any such car7 rier may at its option continue to file tariffs for any

8 advanced service and may also continue to partici9 pate in any National Exchange Carrier Association

10 pooling arrangement.’’.

11 SEC. 4. DEFINITIONS.

12 (a) IN GENERAL.—Section 3 of the Communications

13 Act of 1934 (47 U.S.C. 153) is amended by—

14 (1) redesignating paragraphs (1) through (51)

15 as paragraphs (3) through (53), respectively; and

16 (2) inserting before paragraph (3), as redesig17 nated, the following:

18 ‘‘(1) ADVANCED SERVICE.—The term ‘advanced

19 service’ means any service or combination of services

20 that consists of, or includes, the offering of a capa21 bility to transmit information using a packet22 switched or successor technology downstream from a

23 provider to a consumer at a rated speed of 200 kilo24 bits per second or more and upstream from a con25 sumer to a provider at a rated speed of 128 kilobits
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1 per second or more for access to other services, to

2 the Internet or other information or data services, or

3 to private network or data facilities.

4 ‘‘(2) ADVANCED SERVICE PROVIDER.—The

5 term ‘advanced service provider’ means any provider

6 of advanced services.’’.

7 (b) CONFORMING AMENDMENT.—Section

8 271(c)(1)(A) of the Communications Act of 1934 (47

9 U.S.C. 271(c)(1)(A)) is amended by striking ‘‘3(47)(A),’’

10 and inserting ‘‘3(50)(A),’’.

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