[Federal Register Volume 74, Number 63 (Friday, April 3, 2009)]
[Proposed Rules]
[Pages 15236-15239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7450]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 36

[CC Docket No. 80-286; FCC 09-24]


Jurisdictional Separations and Referral to the Federal-State 
Joint Board

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: Jurisdictional separations is the process by which incumbent 
local exchange carriers (incumbent LECs) apportion regulated costs 
between the intrastate and interstate jurisdictions. In this document, 
the Commission seeks comment on extending until June 30, 2010 the 
current freeze of part 36 category relationships and jurisdictional 
cost allocation factors used in jurisdictional separations, which 
freeze would otherwise expire on June 30, 2009. Extending the freeze 
would allow the Commission to provide stability for, and avoid imposing 
undue burdens on, carriers that must comply with the Commission's 
separations rules while the Commission considers issues relating to 
comprehensive reform of the jurisdictional separations process.

DATES: Comments are due on or before April 17, 2009. Reply comments are 
due on or before April 24, 2009.

ADDRESSES: You may submit comments, identified by WC Docket No. 80-286, 
by any of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Federal Communications Commission's Web Site: http://www.fcc.gov/cgb/ecfs/. Follow the instructions for submitting comments.

[[Page 15237]]

    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#5b3e383d281b3d3838753c342d"><span class="__cf_email__" data-cfemail="5530363326153336367b323a23">[email protected]</span></a>, and include the following words in 
the body of the message, ``get form.'' A sample form and directions 
will be sent in response. Include the docket number in the subject line 
of the message.
    <bullet> Mail: Secretary, Federal Communications Commission, 445 
12th Street, SW., Washington, DC 20554.
    <bullet> People with Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by e-mail: <a href="/cdn-cgi/l/email-protection#e9afaaaadcd9dda98f8a8ac78e869f"><span class="__cf_email__" data-cfemail="bafcf9f98f8a8efadcd9d994ddd5cc">[email protected]</span></a> or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Daniel Ball, Attorney Advisor, at 202-
418-1577, Pricing Policy Division, Wireline Competition Bureau.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) in CC Docket No. 80-286, FCC 09-24, 
released on March 27, 2009. The full text of this document is available 
for public inspection during regular business hours in the FCC 
Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 
20554.

Background

    1. Jurisdictional separations is the process by which incumbent 
LECs apportion regulated costs between the intrastate and interstate 
jurisdictions. The NPRM proposes extending the current freeze of part 
36 category relationships and jurisdictional cost allocation factors 
used in jurisdictional separations, which freeze would otherwise expire 
on June 30, 2009, until June 30, 2010. Extending the freeze will allow 
the Commission to provide stability for, and avoid imposing undue 
burdens on, carriers that must comply with the Commission's separations 
rules while the Commission considers issues relating to comprehensive 
separations reform.
    2. The 2001 Separations Freeze Order, 66 FR 33202, June 21, 2001, 
froze all part 36 category relationships and allocation factors for 
price cap carriers and all allocation factors for rate-of-return 
carriers. Rate-of-return carriers had the option to freeze their 
category relationships at the outset of the freeze. The freeze was 
originally established July 1, 2001 for a period of five years, or 
until the Commission completed separations reform, whichever occurred 
first. The 2006 Separations Freeze Extension Order, 71 FR 29843, May 
24, 2006, extended the freeze for three years or until the Commission 
completed separations reform, whichever occurred first.
    3. In this NPRM the Commission seeks comment on extending the 
freeze for one year, until June 30, 2010. The proposed extension would 
allow the Commission to work with the Federal-State Joint Board on 
Separations to achieve comprehensive separations reform. Pending 
comprehensive reform, the Commission tentatively concludes that the 
existing freeze should be extended on an interim basis to avoid the 
imposition of undue administrative burdens on incumbent LECs. The 
Commission asks commenters to consider how costly and burdensome an 
extension of the freeze, or a reversion to the pre-freeze part 36 
rules, would be for small incumbent LECs, and whether an extension 
would disproportionately affect specific types of carriers or 
ratepayers. Incumbent LECs have not been required to utilize the 
programs and expertise necessary to prepare separations information 
since the inception of the freeze almost eight years ago. If the 
Commission does not extend the separations freeze, and instead allows 
the earlier separations rules to return to force, incumbent LECs would 
be required to reinstitute their separations processes, and they may no 
longer have the necessary employees and systems in place to do so. 
Given the imminent expiration of the current separations freeze, it is 
unlikely that incumbent LECs would have sufficient time to reinstitute 
the separations processes necessary to comply with the earlier 
separations rules.
    4. The extended freeze would be implemented as described in the 
2001 Separations Freeze Order. Specifically, price-cap carriers would 
use the same relationships between categories of investment and 
expenses within part 32 accounts and the same jurisdictional allocation 
factors that have been in place since the inception of the current 
freeze on July 1, 2001. Rate-of-return carriers would use the same 
frozen jurisdictional allocation factors, and would use the same frozen 
category relationships if they had opted previously to freeze those as 
well.

Comment Filing Procedures

    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated in the DATES section of this 
document. Comments may be filed using: (1) The Commission's Electronic 
Comment Filing System (ECFS); (2) the Federal Government's eRulemaking 
Portal; or (3) by filing paper copies. See Electronic Filing of 
Documents in Rulemaking Proceedings, 63 FR 24121 (1998).
    <bullet> Electronic Filers: Comments may be filed electronically 
using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/
or the Federal eRulemaking Portal: http://www.regulations.gov. Filers 
should follow the instructions provided on the Web site for submitting 
comments.
    <bullet> For ECFS filers, if multiple docket or rulemaking numbers 
appear in the caption of this proceeding, filers must transmit one 
electronic copy of the comments for each docket or rulemaking number 
referenced in the caption. In completing the transmittal screen, filers 
should include their full name, U.S. Postal Service mailing address, 
and the applicable docket or rulemaking number. Parties may also submit 
an electronic comment by Internet e-mail. To get filing instructions, 
filers should send an e-mail to <a href="/cdn-cgi/l/email-protection#4d282e2b3e0d2b2e2e632a223b"><span class="__cf_email__" data-cfemail="fa9f999c89ba9c9999d49d958c">[email protected]</span></a>, and include the following 
words in the body of the message, ``get form.'' A sample form and 
directions will be sent in response.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and four copies of each filing. If more than one 
docket or rulemaking number appears in the caption of this proceeding, 
filers must submit two additional copies for each additional docket or 
rulemaking number.
    <bullet> Filings can be sent by hand or messenger delivery, by 
commercial overnight courier, or by first-class or overnight U.S. 
Postal Service mail (although we continue to experience delays in 
receiving U.S. Postal Service mail). All filings must be addressed to 
the Commission's Secretary, Office of the Secretary, Federal 
Communications Commission.
    <bullet> The Commission's contractor will receive hand-delivered or 
messenger-delivered paper filings for the Commission's Secretary at 236 
Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing 
hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be 
held together with rubber bands or fasteners. Any envelopes must be 
disposed of before entering the building.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9300 East Hampton 
Drive, Capitol Heights, MD 20743.
    <bullet> U.S. Postal Service first-class, Express, and Priority 
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

[[Page 15238]]

    People with Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an e-mail to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="5c3a3f3f696c681c3a3f3f723b332a">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).

Ex Parte Requirements

    This matter shall be treated as a ``permit-but-disclose'' 
proceeding in accordance with the Commission's ex parte rules. See 47 
CFR 1.1200, 1.1206. Persons making oral ex parte presentations are 
reminded that memoranda summarizing the presentations must contain 
summaries of the substance of the presentations and not merely a 
listing of the subjects discussed. More than a one or two sentence 
description of the views and arguments presented generally is required. 
See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex 
parte presentations in permit-but-disclose proceedings are set forth in 
section 1.1206(b) of the Commission's rules. 47 CFR 1.1206(b).

Initial Regulatory Flexibility Analysis

    As required by the Regulatory Flexibility Act of 1980, as amended 
(RFA), the Commission has prepared this Initial Regulatory Flexibility 
Analysis (IRFA) of the possible significant economic impact on a 
substantial number of small entities by the policies and rules proposed 
in this NPRM. Written public comments are requested on this IRFA. 
Comments must be identified as responses to the IRFA and must be filed 
by the deadlines for comments on the NPRM. The Commission will send a 
copy of the NPRM, including this IRFA, to the Chief Counsel for 
Advocacy of the Small Business Administration (SBA). See 5 U.S.C. 
603(a).

Need for, and Objectives of, the Proposed Rules

    In the 1997 Separations NPRM, the Commission noted that the network 
infrastructure by that time had become vastly different from the 
network and services used to define the cost categories appearing in 
the Commission's part 36 jurisdictional separations rules, and that the 
separations process codified in part 36 was developed during a time 
when common carrier regulation presumed that interstate and intrastate 
telecommunications service must be provided through a regulated 
monopoly. Thus, the Commission initiated a proceeding with the goal of 
reviewing comprehensively the Commission's part 36 procedures to ensure 
that they meet the objectives of the 1996 Act. The Commission sought 
comment on the extent to which legislative changes, technological 
changes, and market changes might warrant comprehensive reform of the 
separations process. Because over eleven years have elapsed since the 
closing of the comment cycle on the 1997 Separations NPRM, and over 
seven years have elapsed since the imposition of the freeze, and 
because the industry has experienced myriad changes during that time, 
we ask that commenters, in their comments on the present NPRM, comment 
on the impact of a further extension of the freeze.
    The purpose of proposed extension of the freeze is to ensure that 
the Commission's separations rules meet the objectives of the 1996 Act, 
and to allow the Commission additional time to consider changes that 
may need to be made to the separations process in light of changes in 
the law, technology, and market structure of the telecommunications 
industry.

Legal Basis

    The legal basis for the NPRM is contained in sections 1, 2, 4, 201-
205, 215, 218, 220, 229, 254, and 410 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 152, 154, 201-205, 215, 218, 220, 229, 
254 and 410, and 1.1200-1.1216 of the Commission's rules, 47 CFR 1.1, 
1.411-1.429, 1.1200-1.1216.

Description and Estimate of the Number of Small Entities to Which Rules 
May Apply

    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 proposed rules, if adopted. The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under section 3 of the 
Small Business Act. Under the Small Business Act, a ``small business 
concern'' is one that: (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).
    We have included small incumbent LECs in this RFA analysis. As 
noted above, a ``small business'' under the RFA is one that, inter 
alia, meets the pertinent small business size standard established by 
the SBA, and is not dominant in its field of operation. Section 121.201 
of the SBA regulations defines a small wireline telecommunications 
business as one with 1,500 or fewer employees. In addition, 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. Because our proposals 
concerning the part 36 separations process will affect all incumbent 
LECs providing interstate services, some entities employing 1,500 or 
fewer employees may be affected by the proposals made in this NPRM. We 
therefore have 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. 
Neither the Commission nor the SBA has developed a small business size 
standard specifically for providers of incumbent local exchange 
services. The closest applicable size standard under the SBA rules is 
for Wired Telecommunications Carriers. Under the SBA definition, a 
carrier is small if it has 1,500 or fewer employees. According to the 
FCC's Telephone Trends Report data, 1,311 incumbent LECs reported that 
they were engaged in the provision of local exchange services. Of these 
1,311 carriers, an estimated 1,024 have 1,500 or fewer employees and 
287 have more than 1,500 employees. Consequently, the Commission 
estimates that most incumbent LECs are small entities that may be 
affected by the rules and policies adopted herein.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    None.

Steps Taken To Minimize Significant Economic Impact on Small Entities, 
and Significant Alternatives Considered

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

[[Page 15239]]

    As described above, seven years have elapsed since the imposition 
of the freeze, thus, we ask commenters, in their comments on the 
present NPRM, to address the impact of a further extension of the 
freeze. We seek comment on the effects our proposals would have on 
small entities, and whether any rules that we adopt should apply 
differently to small entities. We direct commenters to consider the 
costs and burdens of an extension on small incumbent LECs and whether 
the extension would disproportionately affect specific types of 
carriers or ratepayers.
    Implementation of the proposed freeze extension would ease the 
administrative burden of regulatory compliance for LECs, including 
small incumbent LECs. The freeze has eliminated the need for all 
incumbent LECs, including incumbent LECs with 1500 employees or fewer, 
to complete certain annual studies formerly required by the 
Commission's rules. If an extension of the freeze can be said to have 
any effect under the RFA, it is to reduce a regulatory compliance 
burden for small incumbent LECs, by abating the aforementioned 
separations studies and providing these carriers with greater 
regulatory certainty.

Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rules

    None.

Paperwork Reduction Act

    The NPRM does not propose any new or modified information 
collections subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new, 
modified, or proposed ``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, 44 U.S.C. 
3506(c)(4).

List of Subjects in 47 CFR Part 36

    Communications common carriers, Reporting and recordkeeping 
requirements, Telephone, and Uniform System of Accounts.

Federal Communications Commission.
William F. Caton,
Deputy Secretary.

Proposed Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend 47 CFR part 36 as follows:

PART 36--JURISDICTIONAL SEPARATIONS PROCEDURES; STANDARD PROCEDURES 
FOR SEPARATING TELECOMMUNICATIONS PROPERTY COSTS, REVENUES, 
EXPENSES, TAXES AND RESERVES FOR TELECOMMUNICATIONS COMPANIES

    1. The authority citation for part 36 continues to read:

    Authority:  47 U.S.C. Secs. 151, 154(i) and (j), 205, 221(c), 
254, 403, and 410.

    2. In 47 CFR part 36 remove the words ``June 30, 2006'' where ever 
they appear and add, in their place, the words ``June 30, 2010'' in the 
following places:
    a. Section 36.3(a), (b), (c), (d), and (e);
    b. Section 36.123(a)(5), and (a)(6);
    c. Section 36.124(c), and (d);
    d. Section 36.125(h), (i), and (j);
    e. Section 36.126(b)(5), (c)(4), (e)(4), and (f)(2);
    f. Section 36.141(c);
    g. Section 36.142(c);
    h. Section 36.152(d);
    i. Section 36.154(g);
    j. Section 36.155(b);
    k. Section 36.156(c);
    l. Section 36.157(b);
    m. Section 36.191(d);
    n. Section 36.212(c);
    o. Section 36.214(a);
    p. Section 36.372;
    q. Section 36.374(b), and (d);
    r. Section 36.375(b)(4), and (b)(5);
    s. Section 36.377(a) introductory text, (a)(1)(ix), (a)(2)(vii), 
(a)(3)(vii), (a)(4)(vii), (a)(5)(vii), and (a)(6)(vii);
    t. Section 36.378(b)(1);
    u. Section 36.379(b)(1), and (b)(2);
    v. Section 36.380(d), and (e);
    w. Section 36.381(c) and (d); and
    x. Section 36.382(a).

[FR Doc. E9-7450 Filed 4-2-09; 8:45 am]
BILLING CODE 6712-01-P


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