00-13588. 2000 Biennial Review; Streamlining Technical Criteria and Registration for Customer Premises Equipment

AGENCY:

Federal Communications Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

This document proposes to streamline most elements of the process by which technical criteria are established for customer premises equipment (CPE or terminal equipment) that, once approved, local exchange carriers must allow to be connected to the public switched telephone network (PSTN). The document also proposes to minimize Commission assessment of product compliance with technical criteria for such equipment. The intended effect of this document is to seek comment on various options for streamlining these processes.

DATES:

Comments are to be filed on or before June 23, 2000, and reply comments are due on or before July 7, 2000. Written comments must be submitted by the Office of Management and Budget (OMB) on the proposed information collections on or before July 31, 2000.

ADDRESSES:

Federal Communications Commission, Secretary, 445 12th Street, SW., Room TW-B204F, Washington, DC 20554. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to [e-mail], and to Edward C. Springer, OMB Desk Officer, Room 10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or via the Internet to [e-mail].

FOR FURTHER INFORMATION CONTACT:

Susan Magnotti, [phone] or email at [e-mail] or Staci Pies at [phone] or email at [e-mail]. For additional information concerning the information collections contained in this NPRM contact Judy Boley at [phone], or email at [e-mail].

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Notice of Proposed Rulemaking adopted on May 15, 2000, and released on May 22, 2000. The full text of this Notice is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center. The complete text may also be obtained through the world wide web, at http:/www.fcc.gov/​Bureaus/​Common Carrier/Orders, or may be purchased from the Commission's copy contractor, International Transcription Services, Inc., 1231 20th Street, NW., Washington, DC 20036.

Paperwork Reduction Act

1. This NPRM contains a proposed information collection. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection(s) contained in this NPRM, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due at the same time as other comments on this NPRM; OMB notification of action is due 60 days from date of publication of this NPRM in the Federal Register. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.

OMB Control Number: 3060-0056.

Title: Registration of Telephone and Data Terminal Equipment.

Form No.: FCC Form 730.

Type of Review: Revision of existing collection.

Respondents: Business or other for-profit.

Number of Respondents: 2400.

Estimated Time Per Response: 24 hours.

Total Annual Burden: 57,600 hours.

Cost to Respondents: $2,700,000.

Needs and Uses: This information is needed to ascertain compliance of customer premises equipment with technical criteria designed to protect the public switched network from certain specific types of harm. The information would be used by the Commission in the event of a need for an adjudicatory proceeding regarding the level of compliance of specific pieces of customer premises equipment. It would be used by the public to locate the manufacturer of a specific piece of customer premises equipment. It would also be used by the U.S. Customs Service to determine whether customer premises equipment may be legally imported.

Synopsis of Notice of Proposed Rulemaking

2. CPE currently is regulated by part 68 of the rules, which establishes technical criteria designed to ensure that the CPE does not harm the PSTN or telephone company personnel and a registration process to verify which CPE complies with these criteria. Part 68 requires local exchange carriers to allow CPE that is registered as part 68 compliant to be connected to their networks. As part of the Commission's overall mandate to reduce regulation wherever possible, consistent with the public interest, the Commission proposes in this Notice largely to privatize two of part 68's functions—first, the establishment of technical criteria for CPE to ensure it will not harm the PSTN and, second, the registration process used to determine whether a particular model of equipment meets those standards. The reduction of governmental involvement in the setting of technical criteria and registration of CPE is expected to have a beneficial impact upon the pace of new or competitive CPE deployment, and therefore it is expected to increase the choices available to consumers.

3. The proposals in this Notice are based on positions that emerged from a series of industry fora the Commission held in July 1999 to explore the extent to which regulations in part 68, other than the hearing aid compatibility and volume control (HAC/VC) rules, may no longer be necessary. The Commission also includes proposals patterned after the rules establishing interconnection rules for cable television devices. In this Notice, the Commission proposes to retain in the rules proscriptions against certain harms to the PSTN that can be caused by offending CPE. The Commission also proposes that the rules continue to require that local exchange carriers (LECs) allow CPE that meets technical criteria for network protection to be connected freely to their networks. However, rather than the Commission's continuing to set such technical criteria, the Commission proposes in this Notice to use one of several potential industry standards-setting processes. The only technical criteria that the Commission proposes to retain in the rules are those that ensure access to telecommunications and services by persons with disabilities and those that deal with network demarcation and inside wire. To ensure that the public interest is adequately protected, the Commission proposes to provide for de novo Commission review and enforcement, where necessary, of the industry-established technical criteria in the event of an appeal regarding the criteria. The Commission expects, however, that such involvement would be extremely limited.

4. The Commission proposes three options for an industry standards-setting process. Under Option A the Commission would choose a “gatekeeper” SDO that will establish and publish technical criteria for CPE developed pursuant to American National Standards Institute (ANSI) procedures for consensus bodies. Thus, LECs would have to permit connection to the PSTN of any CPE that meets the technical criteria endorsed by the “gatekeeper” SDO. This option would not modify the existing industry standards setting process and the excellent cooperation that today exists among standards groups. Ideally, commenters that prefer this option would agree on what entity the Commission should designate as the “gatekeeper” SDO. Under Option B, we would rely directly on consensus positions achieved under standards development processes and organizations. This is essentially the same policy the Commission adopted for television “set top boxes” used in cable television and similar systems. The Commission's rules would establish general requirements that networks are to be protected from harms that could be caused when terminal equipment is connected and that customers have a right to connect terminal equipment that will not harm networks. The Commission's rules also would provide that terminal equipment that complies with technical specifications that are designed to protect networks from harm and that are consensus positions recommended by any national standards-setting organization would be presumed to comply with the Commission's general requirements on networks and customers' rights. Under Option C, the Commission proposes that interconnection standards be developed by national standards organizations and that specific standards be incorporated by reference into the Commission's rules.

5. The Commission also proposes to assign to private industry the process of verifying that specific CPE meets the established technical criteria. The Commission has already established a procedure whereby CPE manufacturers may submit their products to private Telecommunications Certifications Bodies (TCBs), rather than the Commission, for part 68 registration. In this Notice, the Commission proposes to replace Commission registration entirely with either expanded use of the TCBs for certification, or self-certification or verification.

6. The Commission maintains a data base of terminal equipment registered pursuant to part 68. Consistent with the proposal in this Notice to privatize many of the Commission's current part 68 functions, the Commission proposes that a private entity be responsible for sponsoring and maintaining a similar database. Entities obtaining equipment approval from TCBs and entities using either DoC or verification would be required to submit pertinent information regarding their identity and approved equipment to a database administrator. The only standards proposed for the database of approved CPE are that it be accurate and that it be readily available at a reasonable cost to users.

7. The Anti-Drug Abuse Act (ADAA), 21 USC 862; 47 CFR 1.2001 through 1.2003, requires an entity receiving a “federal benefit” to certify compliance with ADAA requirements. In its decision implementing the ADAA, the Commission applied the definition of “license” found in the APA to determine the scope of the term “license” as used in 47 U.S.C. section 5301 and thus to define the scope of federal benefits, see Amendment of Part 1 of the Commission's Rules to Implement Section 5301 of the Anti-Drug Abuse Act of 1988, Gen. Docket No. 90-312, Report and Order, 6 FCC Rcd 7551 (1991) (ADAA Report and Order). The APA defines “license” as including “the whole or part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission,” 5 USC 551(8). Pursuant to this definition, Commission Part 68 registration of equipment was found to be included within the scope of the ADAA.

8. The Commission seeks comment on whether the proposed DoC or verification procedures require ADAA certification. In addition, the Commission requests comment on whether any conflict would exist between use of the TCB procedure on the one hand, which currently requires certification under the ADAA, and the use of DoC and/or verification procedures on the other hand, which potentially might not be subject to ADAA requirements. The Commission requests comment on whether any ADAA certification continues to be required if it adopts the proposed privatization/streamlining proposals.

9. The Commission is committed to ensuring that persons with disabilities and other consumers continue to receive the full level of enforcement that they currently receive. There was, however, some discussion in the fora regarding the effect of changing the registration process to DoC or verification on compliance with rules intended to protect access by persons with disabilities. The Commission requests comment on whether changes in the registration process proposed in this Notice may unintentionally affect compliance with consumer protection and HAC/VC provisions of part 68. The Commission seeks comment on whether any of the changes to part 68 proposed in this Notice will have an adverse impact on consumer protection or part 68 HAC/VC rules.

10. In addition, any complaints regarding compliance with the technical criteria relating to part 68 HAC/VC and consumer protection in part 68 would come directly to the Commission, as they do now. The Commission seeks comment on whether the present part 68 complaint procedures regarding the HAC/VC rules should be replaced or augmented with the procedures developed pursuant to section 255 of the Communications Act, parts 6 and 7 of the Commission's Rules.

11. Parties generally agree, and the Commission so proposes, that the Commission should retain ultimate responsibility to enforce compliance with its rules, which would include industry-developed technical criteria that it may, upon appeal, review and enforce through a de novo review process. Moreover, the Commission proposes these enforcement policies notwithstanding which option for establishment of technical criteria it chooses, and which equipment approval option it chooses.

12. The Commission requests comment on whether it would be appropriate for the Commission to revise the part 68 complaint rules, solely for complaints arising from HAC/VC rules, to incorporate procedures recently adopted pursuant to section 255 and 225 of the Act. See Implementation of Sections 255 and 251(a)(2) of the Communications Act of 1934, as Enacted by the Telecommunications Act of 1996—Access to Telecommunications Service, Telecommunications Equipment and Customer Premises Equipment by Persons with Disabilities, WT Docket No. 96-198, FCC 99-181, Report and Order and Further Notice of Inquiry, 64 FR 63235 (Nov. 19, 1999); see also Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67, FCC 00-56, Report and Order and Further Notice of Proposed Rulemaking,—FCC Rcd. (rel. Mar. 6, 2000). In these proceedings, the Commission made it easier for consumers to file complaints and for subject entities to move quickly to resolve them. Accordingly, the Commission requests comment on whether a similar approach would be beneficial for enforcement of part 68 HAC/VC rules.

13. The Commission proposes, solely for complaints arising from compliance with the technical criteria intended to prevent harm to the PSTN, that prior to filing a complaint with the Commission a party must follow an alternative dispute resolution process designed to minimize the number of complaints needing Commission de novo review. This provision requires the complainant to certify that it has made a good faith effort to discuss the possibility of settlement with each entity against which it is filing a complaint, and/or with the local exchange carrier. The Commission further requests comment on an alternative step: for equipment registered by a TCB, would it be appropriate to refer the complaint to the TCB that issued the registration? If these alternative dispute resolution procedures do not resolve the complaint, the complainant may then petition the Commission under the applicable complaint procedures.

Procedural Matters

A. Ex Parte Presentations

14. The matter in CC Docket No. 99-216, initiated by this NPRM, shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. 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 is generally required. Other rules pertaining to oral and written presentations are set forth in the rules as well.

B. Initial Regulatory Flexibility Act Analysis

15. The following is a summary of the Initial Regulatory Flexibility Analysis (IRFA) created for the Notice. See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601 et seq., has been amended by the Contract With America Advancement Act of 1996, Public Law 104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA). The Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rulemaking. 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 Notice of Proposed Rulemaking. The Commission will send a copy of the Notice of Proposed Rulemaking, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. See 5 U.S.C. 603(a). In addition, the Notice of Proposed Rulemaking and IRFA (or summaries thereof) will be published in the Federal Register. See id.

16. Need for, and Objectives of, the Proposed Rules. This Notice of Proposed Rulemaking is a significant step forward in the Commission's initiative to largely privatize the process by which technical criteria are established for customer premises equipment (CPE or terminal equipment) that may be sold for connection to the public switched telephone network (PSTN), and for the registration of such equipment. The proposals in this Notice largely are based on the consensus positions of the participants in a series of industry forums the Commission held in July 1999 to explore the extent to which regulations in part 68, other than the HAC/VC rules, may no longer be necessary. The majority of commenters and forum participants generally argued that: (a) Carriers' networks must be protected; (b) one uniform set of national technical standards is necessary; (c) there are few, if any, unnecessary technical requirements in Part 68 at present; (d) the Commission should retain the authority to ensure that the telephone network is protected; and (e) the functions of technical criteria development, laboratory qualification, and registration of equipment, currently performed by the Commission, largely can be privatized.

17. In this Notice, the Commission proposes that the new part 68 would contain no detailed technical criteria for protection of the network, no descriptions and schematics of connectors, and none of the existing rules that pertain to application by manufacturers and importers directly to the Commission for equipment registration. The Commission proposes, in place of these rules, that local exchange carriers must permit connection to the PSTN of any CPE that meets the technical criteria set by an industry standards body or bodies. This Notice proposes alternative ways that the determination might be made whether a piece of CPE meets the industry's criteria, including certification by a telecommunications certification body (TCB) and self-certification by the manufacturer. Both the industry's technical criteria and the certification of individual CPE would be subject to a Commission de novo review or enforcement process. While the industry would make its determinations regarding technical criteria under the guidance of the Commission's policies and regulations, its technical criteria would not be binding on the Commission in the event of de novo review or enforcement. The industry's administration activity would assist us in the implementation of the Commission's objectives to permit connection of CPE to the PSTN without causing harm, but the industry standards body or bodies would not determine the final outcome of technical criteria matters. Therefore, as administrator of its technical criteria program governing the prevention of harm to the PSTN, the industry standards body or bodies would not be performing a Commission policy function. Although the proposals, to transfer the responsibility for the development and maintenance of CPE technical criteria from this Commission to an industry body subject to de novo review or enforcement, represent a new paradigm for part 68 regulation, this procedure is in fact a logical progression of the Commission's historic regulation of CPE and is similar to other deregulatory initiatives the Commission has used.

18. In addition, the Commission proposes to largely privatize equipment registration by devolving this function, currently performed solely by this Commission, to Telecommunications Certification Bodies (TCBs), which the Commission has previously established to streamline and privatize some of the regulatory processes. TCBs would use the technical criteria developed by industry to determine whether equipment meets the requirements for registration. The Commission also proposes to establish new procedures for manufacturer self-declaration of conformity or verification pursuant to the technical criteria, and the Commission requests comment on the details pertaining to these options. Thus, under the proposed new rules for part 68, if CPE meets the technical criteria, and if it is registered pursuant to the new privatized registration rules, then wireline telephone companies must permit the equipment to be connected to the PSTN.

19. Legal Basis. In this Notice of Proposed Rulemaking, the Commission tentatively concludes that the Commission has the necessary statutory authority to adjust the part 68 program as proposed herein. For example, the proposed changes are entirely in furtherance of the Commission's statutory mission “to make available . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communications service with adequate facilities. . . . 47 U.S.C. 151; see also North Carolina Utilities Commission v. FCC, 537 F.2d 787, 793-94 (4th Cir. 1976). Further, the proposed changes are justified, at least in part, on the basis of the same statutory authority which was relied upon in 1975 when the part 68 program was originally implemented, e.g., sections 4(i), 4(j), and 201-205. Finally, as noted previously, the proposed changes, if adopted, will further the competitive goals of the 1996 Act.

20. The proposal herein is further supported by the past regulatory framework for part 68. The part 68 First Report and Order stressed that the Commission's guiding objective for competitive CPE registration is that it would remain “simple and easy to administer as is reasonably possible with a minimum of government intervention.” The Commission's goals were to produce an absolute minimum of expense to both the government and private industry, to the benefit of the ultimate consumer, while at the same time protecting the PSTN from harms that could be caused by the connection of faulty terminal equipment. Accordingly, the Commission tentatively concludes in this Notice of Proposed Rulemaking that, in view of the changes in the industry and the market for CPE over the past twenty-five years, the key objectives that led to the original adoption of the part 68 program can better be served through a different mix of government and private industry involvement.

21. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will 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. 5 U.S.C. 603(b)(3). The Regulatory Flexibility Act defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small business concern” under section 3 of the Small Business Act. Id. 601(3). A small business concern is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA. Id. 632.

22. RFA analyses and certifications need only address the impact of rules on small entities directly regulated by those rules, Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327, 342-43 (D.C. Cir. 1985). The Commission's equipment authorization rules directly regulate only manufacturers of equipment, which must satisfy the Commission's product approval requirements. Small test laboratories are not directly regulated by the proposed Commission rules. Thus, to the extent that any testing laboratories would be affected by these proposed rules, such entities are not addressed in this IRFA.

23. The Commission has not developed a definition of small manufacturers of telephone terminal equipment. The closest applicable definitions under SBA rules is for manufacturers of telephone and telegraph apparatus (SIC 3661), which defines a small manufacturer as one having 1,000 or fewer employees. 13 CFR 121.201, Standard Industrial Classification (SIC) Code 3661.

24. According to 1992 Census Bureau data, there were 479 such manufacturers, and of those, 436 had 999 or fewer employees, and seven had between 1,000 and 1,499 employees. 1992 Economic Census, Industry and Employment Size of Firm, Table 1D (prepared by U.S. Census Bureau under contract to the U.S. Small Business Administration). The Commission estimates that there are fewer than 443 small manufacturers of terminal equipment that may be affected by the proposed rules.

25. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. The Commission is proposing to remove the requirement that applicants for equipment authorization apply to the Commission, and instead propose that they apply to designated Telecommunications Certification Bodies. The Commission is proposing that instead of submitting part 68 application information to the Commission, the TCBs would be required to submit the data to a nationwide database instead, which shall be administered by a private entity. The Commission is also proposing to offer responsible parties the option to use either a Self-Declaration of Conformity or a verification process for equipment authorization. Such parties would have to submit data concerning their equipment to a nationwide database.

26. Further, the Commission is proposing to privatize development and maintenance of technical criteria for terminal equipment, other than those technical criteria required for compliance with the HAC/VC and consumer protection rules, which the Commission proposes to retain. Small entities with an interest in the development, interpretation, and waiver of such technical criteria would be required to seek the ruling of the standard development organization responsible for the standard at issue in the first instance. The Commission, however, proposes to retain full de novo review procedures for any industry decision.

27. The Commission also proposes to require that certain information regarding the equipment authorized under part 68 would be placed into a publicly available database. This information would be available for review of technical parameters of specific equipment, including parameters required for compliance with hearing aid compatibility, volume control, and other HAC/VC requirements. This requirement would not be a new information requirement since application data is currently required and kept in a Commission database.

28. Finally, the Commission proposes to unify the numbering system and the logo that must be imprinted on customer premises equipment. Currently, part 15 and part 68 have different labeling and different registration numbering systems.

29. 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: (1) the establishment of differing compliance or 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 any part thereof, for small entities.

30. The proposals in this Notice are designed to reduce the length of time for new technology to reach the market. This may benefit small entities especially because the proposals would cut any manufacturer's cost to bring an equipment design to market. Alternatives for making these reductions are included in the form of options for different methods of (1) industry development and maintenance of technical standards and (2) equipment registration. The Commission requests comment on these options.

31. The Commission requests comment on whether small entities would be adversely affected by the proposals herein, particularly whether the proposed enforcement procedures or any of the proposed options for establishing technical criteria would have a significant economic impact. The Commission believes that the proposals would have either no impact, or would reduce, any economic burdens on small entities.

32. Federal Rules that May Duplicate, Overlap, or Conflict With the Proposed Rules. None.

C. Comment Filing Procedures

33. Interested parties may file comments on or before June 23, 2000 and reply comments on or before July 7, 2000. Parties must file an original and four copies of each filing. All filings must be sent to the Commission's Secretary, Magalie Roman Salas, Office of the Secretary, Federal Communications Commission, 445 Twelfth Street, SW, Room TW-B204F, Washington, DC 20554. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 68 FR 24,121 (1998). Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/​e-file/​ecfs.html. Generally, only one copy of an electronic submission must be filed. In completing the transmittal screen, commenters should include their full name, Postal Service mailing address, and the applicable docket number, CC Docket No. 99-216.

34. Written comments must be submitted by the Office of Management and Budget (OMB) on the proposed information collections on or before July 31, 2000. In addition to filing comments with the Secretary, a copy of any comments on the information collections contained herein should be submitted to Judy Boley, Federal Communications Commission, Room 1-C804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to [e-mail] and to Edward C. Springer, OMB Desk Officer, Room 10236 NEOB, 725 17th Street, NW., Washington, DC 20503 or via the Internet to [e-mail].

35. Parties should also file one copy of any documents filed in this docket with the Commission's copy contractor, International Transcription Services, Inc., 1231 20th Street, NW, Washington, DC 20036. Comments and reply comments will be available for public inspection during regular business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554.

List of Subjects in 47 CFR Part 68

• Administrative practice and procedure
• Communications common carriers
• Communications equipment
• Labeling
• Reporting and recordkeeping requirements
• Telephone

Federal Communications Commission.

Magalie Roman Salas,

Secretary.