Cable, Telcos Seek FCC BDS Reply Extension, Cite Interest in Seeking Consensus

Cable and telco trade groups asked the FCC for more time to reply in a rulemaking on revising the agency's special access framework for business data services (BDS). In a motion Tuesday in docket 16-143, NCTA, USTelecom and ITTA said the July 26 deadline should be delayed 21 days to give parties more time to address voluminous initial comments and various complexities, including evolving industry data and related BDS market analysis.

The groups said they also want more time to respond to a joint proposal from Incompas and Verizon in a way that moves toward a "true" industry consensus. Incompas and a consumer advocate suggested the three trade groups were just seeking to put off BDS regulation. A regulatory skeptic said a delay makes sense, given the data "nightmare." Verizon didn't comment.

Separately, six ILECs updated a motion to strike from the record BDS analysis based on previous cable data they say is flawed, including a white paper by FCC consultant Marc Rysman that found evidence of ILEC market power. CenturyLink, AT&T, Frontier Communications, FairPoint Communications, Consolidated Communications and Cincinnati Bell said peer reviews and other materials the agency recently released further undermined the validity of Rysman's report. They said the report was revised in a way that "itself raises significant new concerns" and should be peer reviewed. The materials "reflect a desire to find shortcuts toward a pre-determined outcome rather than a neutral commitment to evaluate the record evidence," said their filing.

"I think the Motion to Strike is simply a way to 'check-all-the-boxes' in case the carriers choose to appeal an FCC order based on the 'flawed' data," emailed CCMI consultant Andrew Regitsky. Phoenix Center Chief Economist George Ford said the Rysman report "should be set aside because it's total nonsense." The FCC had no comment on either request. It denied a previous NCTA request to delay initial and reply comments (see 1606090037).

NCTA, USTelecom and ITTA said 40-plus parties filed more than 1,000 pages in the initial BDS comments (see 1606280058), some of which attached independent economic analysis and business declarations. "Analyzing and responding to these various filings with any rigor simply requires more time than the current schedule permits, especially given that trade associations, like Petitioners, must canvass their membership to develop a response and must allow time for member review before submitting it," the groups said. They noted the Wireline Bureau released the peer reviews, Rysman's modified report, a staff response and other documents June 28 (see 1606290045), the day initial comments were due, and the staff response was further updated July 8 (see 1607080052). "While it has been impossible for Petitioners to fully consider the peer reviews given the available time, it is clear that they raise significant concerns regarding the validity of Dr. Rysman’s analysis," said the groups. They also said NCTA economists faced delays in gaining access to data through the National Opinion Research Center (NORC), a University of Chicago institution.

The three groups voiced "significant interest" in the Incompas/Verizon proposal (see 1606270058), which was filed just before initial comments were due. "Consistent with Commissioner [Mignon] Clyburn’s suggestion that 'an ideal outcome is one in which the industry comes together and proposes a solution that ensures the policy goals are realized,' we are actively considering how best to respond to that proposal in a manner that moves in the direction of developing a true industrywide consensus proposal," they said. "It therefore would be wise for the Commission to provide all parties sufficient time to develop a meaningful response to that proposal while also working on reply comments."

Incompas said it has been "working to fix the broken business market and help consumers save money" for more than a decade. "With the FCC’s guidance, and historic data collection, we have seen constructive progress towards a solution that will benefit business customers. The suggestion for an additional delay is simply a tactic to deny business customers more choices and increased innovation," emailed General Counsel Angie Kronenberg.

"What, exactly, do they need more time to do to formulate their response?" emailed Public Knowledge Senior Vice President Harold Feld. "Tellingly, they do not state that they are involved in discussions with anyone. So what do they need the additional time to do? If they were actually talking to Verizon and Incompas, that would be one thing. But this simply seems like a cynical and self-serving excuse to delay things without really seeking to engage in discussions with other stakeholders."

An NCTA spokesman said Feld "continues to miss the point that we are trying to make, which is the limited time we have to prepare reply comments in a proceeding this complex prevents us from devoting time to discussing this with others." A USTelecom spokeswoman referred us to the extension arguments cited in the filing. “It’s a significant proceeding and we need to be able to respond accordingly,” she said.

ITTA is "always amenable to reaching a compromise with other industry participants whose policy views are different from ours," said President Genny Morelli. She said the Verizon/Incompas proposal isn't a "true industry consensus" plan. "Verizon’s wireless business interests are paramount and that is evidenced by its advocacy," she emailed. "Verizon’s policy interests are the same as INCOMPAS members’, which include Sprint and T-Mobile. Verizon does not speak for incumbent BDS providers."

Phoenix Center's Ford backed a comment extension. "Delay would be good," he emailed. "The data is a nightmare to work with, both because of its size and the way you have to work with the NORC," he said. "I don't envy those willing to do it (I've quit trying), and they should be given plenty of time given the constraints." He noted the FCC is "not far" from having a new chairman, which could change the dynamics.