NATIONAL ASSOCIATION OF STATE UTILITY CONSUMER ADVOCATES
Resolution No. 2007-09
URGING REFORM OF THE FORBEARANCE PROCESS
Whereas, Section 10(a) of the Telecommunications Act (47 U.S.C. § 160(a)) includes a three-part test that governs whether the Federal Communications Commission (“FCC”) shall forbear from applying any FCC regulation or any provision of the Telecommunications Act, which requires the FCC to address the following:
1. Is the regulation not necessary to ensure that the rates for the relevant services are just and reasonable?
2. Is enforcement of the regulation not necessary to protect consumers?
3. Would forbearance from applying the regulation be consistent with the public interest? and
Whereas, the FCC is required to forbear if it finds all three criteria to have been met; and
Whereas, Section 10(c) requires the FCC to consider whether forbearance will promote competitive market conditions; and
Whereas, forbearance petitions can be filed only by telecommunications carriers; and
Whereas, Section 10(e) provides that a state commission may not continue to apply or enforce any provision of the Telecommunications Act that the FCC has determined to forbear from applying; and
Whereas, Section 10(c) provides that the FCC must rule on a petition for forbearance within one year of its filing, with one ninety-day extension allowed; and
Whereas, Section 10(c) provides that if the FCC does not rule on a petition within the allowed period, the petition is deemed granted; and
Whereas, only once has the FCC allowed a petition to be deemed granted, that being Verizon’s petition for forbearance on broadband services, deemed granted on March 19, 2006; and
Whereas, regarding that petition, there remains substantial uncertainty regarding the extent of the forbearance that was granted; and
Whereas, in the appeal of that petition, the FCC and others have argued that a petition deemed granted is not subject to appeal, although a petition on which the FCC has ruled is subject to appeal;
Whereas, in some recent proceedings, there have been questions raised about whether the FCC has conducted a rigorous analysis of competition for the services under review; and
Whereas, in some recent proceedings, the petitioners have submitted information on which the FCC has relied, not with their petitions but later in the proceeding; and
Whereas, petitioners have taken advantage of the process by requesting forbearance in areas that should more appropriately have been addressed in rulemakings; and
Whereas, forbearance petitions have been filed to eliminate broadband regulation, unbundling requirements, service quality and other reporting requirements, universal service funding requirements, rate averaging for long distance calling, equal access scripting requirements,
Whereas, the FCC has never adopted rules regarding the procedures and standards for forbearance petitions; and
Whereas, the FCC has before it a petition requesting the adoption of rules regarding forbearance proceedings, which would include
* Procedural requirements to facilitate the review of and participation in forbearance proceedings, and ensure adequate comment and review.
* That Administrative Procedures Act rules concerning notice and comment rulemaking proceedings apply to petitions for forbearance, to ensure due process by requiring the FCC to provide all interested parties with adequate notice of a proposed rule and time to comment.
* A requirement that petitioners must prove that forbearance meets each of the three requirements of the statute, i.e., that (1) a regulation is not necessary to prevent unreasonable or discriminatory practices or pricing; (2) enforcement is not necessary for protection of consumers; and (3) forbearance is consistent with the public interest.
* A “complete as filed” rule, requiring petitioners, in their initial filings, to submit all of the evidence on which they are asking the FCC to make a forbearance decision.
* That interested parties must be allowed to review all relevant forbearance petition documents on their own premises and in any format, including electronic.
* A timeline that: (1) specifies a limited period for a petitioning party to cure defects in its petition; (2) provides a specific vehicle for state input in the forbearance process; (3) addresses motions to dismiss; and (4) establishes a standard comment cycle.
* A time limit on substantive ex parte submissions to prevent petitioners from filing critical information at the eleventh hour, when it is too late for other parties to comment.
* Dismissal of petitions asking forbearance from providing unbundled network elements, if upon filing, a petition does not include all empirical data at the wire center level and all data explaining the methodologies used.
* The Commission should issue a written order within seven days of granting or denying, in whole or in part, a forbearance petition. For deemed granted petitions, the Commission should issue a written order as soon as a majority of Commissioners reach agreement.
* Requiring forbearance petitions to be subject to the same standards for petitions for reconsideration in rulemaking proceedings in order to provide additional order to the forbearance process.
Whereas, members of Congress have raised numerous questions about the FCC’s use and abuse of its forbearance authority; and
Whereas, there are substantial questions regarding the constitutionality of the forbearance process; and
Whereas, the use and abuse of the forbearance process has not benefited and has resulted in harm to consumers;
Now therefore be it RESOLVED, that the NASUCA Telecommunications Committee, with the approval of the Executive Committee, is authorized to seek Congressional approval of a repeal of the forbearance statute; and
Be it further RESOLVED, that the NASUCA Telecommunications Committee is authorized to support efforts to have the FCC adopt rules to govern forbearance proceedings, in the absence of such repeal; and
Be it further RESOLVED, that the NASUCA Telecommunications Committee, with the approval of the Executive Committee, is authorized to take all other steps consistent with this resolution in order to seek to secure the needed reform and protection for consumers.