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WC 16-143, 15-247, 05-25 & RM-10593 et al: USTelecom Comments in Support of CenturyLink et al.'s Motion to Strike


The United States Telecom Association (USTelecom) supports the motion filed by CenturyLink, Inc., AT&T, Inc., Frontier Communications Corporation, FairPoint Communications, Inc., Consolidated Communications, and Cincinnati Bell Inc. (collectively Movants) asking the Commission to (1) strike the Rysman Paper and other studies filed in this proceeding based on flawed special access data; (2) rescind portions of the FNPRM that relied on the Rysman Paper and flawed data; (3) prepare and allow parties to prepare new analyses using corrected data; and (4) put new proposals and analyses out for comment. USTelecom’s support for this Motion should come as no surprise, as less than one month ago we cited to the same underreported data described by Movants as a basis for granting more time to file comments in this proceeding in response to a motion for extension of time. In that filing, we explained that the outcome of this proceeding will have a major economic impact on the business data services (BDS) marketplace, and that significant undercounting by cable broadband providers of locations capable of providing BDS using Ethernet over HFC, or Metro-Ethernet services would affect the analyses in this proceeding. Despite clear evidence that key data showing the presence of facilities capable of providing BDS were missing from analyses in the record on which the NPRM and FNPRM were based, the Wireline Competition Bureau (Bureau) tersely denied NCTA’s motion.  This Motion explains in greater detail why the Bureau should have not only granted more time for analyses to be rerun and comments to be filed, but that its failure to do so would be reversible error if the Commission were to proceed to a Report and Order that relies on reports and analyses based on flawed, incomplete data.

As Movants explain (and as the Commission acknowledges), the data collection is the single-most indispensable element in this proceeding.  And the data collection upon which the Commission’s conclusions and proposals are grounded is not just not perfect – it is severely flawed because it omits 9 million business locations with Metro-Ethernet coverage.  Movants make a compelling case that more time for comment is simply not enough to cure what ails this proceeding.  Regardless of how inconvenient it would be to rerun the Rysman Paper analyses and revise the Commission’s assumptions based on those analyses, that is precisely what must be done.  Moreover the Commission itself, or its consultant, must rerun the analyses because some of the regression specifications in the Rysman Paper cannot be replicated by outsiders, as the Bureau has chosen to mask the bandwidth information for connections over 1 Gbps.  Otherwise the Commission risks damaging its credibility as an independent, expert agency in exchange for saving a little time.  Moving forward without taking into account the new cable BDS deployment data would serve neither the Commission nor the public interest well.  The Motion therefore should be granted. 


The Bureau’s Assertion That Most of the New Data Relates Only to “Best Efforts” Rather than BDS Is Simply Wrong.

USTelecom is on record as disagreeing with the Commission’s characterization of business class Internet access services that directly compete with traditional high-capacity dedicated services as merely “best efforts,” given that cable providers aggressively market and successfully sell these services as competitive alternatives to traditional DS1 special access. The “mass market BIAS such as DSL as cable modem broadband access” services that the Commission deems “best effort” are not the same offering as the business services that cable providers can and do provide over the upgraded facilities that were recently discovered to have been severely underreported. Those submissions, which detail the extent of business locations served by connections to a node over which dedicated services can be or are being offered using fiber and/or hybrid-fiber (HFC) facilities were necessary to correct a significant undercounting of locations capable of providing Ethernet over HFC, or Metro-Ethernet services. The Commission has confirmed, and no one appears to dispute, that these facilities can, with little or no additional upgrading, provide BDS.  Otherwise, the Commission would have had no reason to go back to cable providers and collect the data, given its decision that non-BDS services will not be used to assess BDS competition. Thus, the Bureau’s explanation that the “vast majority of the submitted data relates only to the availability of best efforts” is unsupported by the record, is belied by the Commission’s own words and deeds, and otherwise makes no sense.    

Exclusion of the New Reported Data Severely Distorts the Presence of BDS Competition.

The Commission’s intent that the data collection would inform its determination of the presence of BDS competition is well-documented.  And the quality of that determination will directly correlate to the quality of both the methodology chosen and the inputs used.  Imagine if the Commission undertook to assess BDS competition with a data set that contained only a fraction of the actual locations where ILEC BDS facilities were present.  Imagine further that ILECs underreported those locations by a factor of 22.  No one would dispute, in that case, that the analyses and assumptions made without the benefit of complete and accurate data about the presence of ILEC BDS facilities must be redone. That the underreporting of 9 million additional locations with cable facilities capable of providing BDS warrants a do-over is equally indisputable. 

This new data strongly suggests that in virtually all locations where there is a demand for business internet service, there are at least two competing facilities-based providers, and we are confident that the data will show that in most cases three or more facilities-based providers are present or close enough to compete.  Of course, in theory the Commission could analyze that data and still conclude that more competition is needed.  But one thing is clear – it cannot make any credible determinations about competition without including and assessing the missing data in its analyses and assumptions.      

The Commission and commenters need sufficient time to update their prior analyses of the state of competition in the BDS market using this new, expanded data.  The Rysman Paper, in particular, is based on incomplete data, and therefore cannot continue to form the basis of the Commissions assumptions and conclusions until it is updated and revised to take into account the new data.  Following that update, parties and the public must be given an opportunity to assess the conclusions reached by the Commission and its consultants, to peer review their work, and to provide their own analysis based on the same updated data set.  Even if the Commission decides that the relief sought by the Motion to strike the Rysman Report and other analyses from the record is not necessary because any deficiencies in the data can otherwise be cured, there is no question that some relief is warranted here.  The Administrative Procedure Act and the Data Quality Act, as well as fundamental principles of fairness require no less.