FCC Denies BDS Comment Extension; NCTA Suggests Outcome 'Predetermined'

The FCC rejected an NCTA request to extend comment deadlines in the rulemaking aimed at overhauling its telco-oriented special access regime for business data services (BDS) (see 1604280057). That leaves initial comments due June 28, replies July 26. "Further delay now is unnecessary," said the order in Thursday's Daily Digest and in docket 16-143 that was signed by Wireline Bureau Chief Matt DelNero. "The Commission has set similar comment deadlines in comparably complex proceedings, and we see no need to deviate from that precedent in this instance."

NCTA said the denial "only serves to reinforce the troubling indications that the FCC is not really interested in developing a fulsome record because the outcome is predetermined." The cable group in May sought initial and reply comment extensions of at least 45 and 30 days, respectively, to comment "meaningfully" on the proceeding's many complexities, including massive industry data submissions and FCC proposals to craft a technology-neutral framework (see 1605130039). It also questioned FCC motives and suggested the comment timetable gave credence to concerns that the commission majority already had made up its mind. Sprint, CLECs and others opposed the request (see 1605180028 and 1605200061), while USTelecom backed it (see 1605270048).

The FCC said it has been considering BDS market competition since 2005, particularly since 2012. "Neither the issues being long-considered, nor those more recently raised, however, warrant an exception to granting an extension of time," said the order, saying parties have been aware since at least 2012 that the agency was broadly reviewing BDS markets. "The review of competition in BDS markets includes consideration of competition from all sources in all BDS markets, and was not limited to any one type of service provider or purchaser, as NCTA suggests. NCTA’s participation, and the participation of many large and small businesses alike, is evidence of awareness of the underlying competitive issues in BDS markets under review, and the ability to knowledgeably participate in this proceeding."

The bureau disputed arguments that compliance with confidentiality safeguards justified a delay, saying parties, including NCTA, negotiated the requirements of protective orders. It said points raised by USTelecom also didn't warrant an extension. "It is the policy of the Commission that extensions of time shall not be routinely granted, and we agree with those opposing NCTA’s request that an extension is not warranted in this instance for comments or at this time with respect to reply comments," the order said. "We agree with the oppositions that a timely resolution of this proceeding will be beneficial for the industry and consumers."

NCTA scoffed at the rationale. "Given that the [Tom] Wheeler FCC has granted parties’ extension requests 85 percent of the time, and extended comment deadlines on its own motion more than 15 times, including one such extension yesterday which did not even state a basis for the extension, it is inconceivable that the FCC would refuse to allow parties additional time to respond to the nearly 300-page special access/business data services further notice," the cable group emailed Thursday. "In addition to its sheer size, the further notice tees up incredibly complex issues, many for the first time, and asks parties to analyze 'the single largest dataset in the history of the Commission,' which is subject to protective orders and cannot be accessed by the general public or the vast majority of potentially affected parties. The difficulty in accessing the data and the further expenditure of resources necessary to analyze it particularly disadvantages smaller providers. Yet inexplicably the ... Bureau decided that an extension was 'not warranted.'"