§  61.50   Regulation of business data services offered by rate-of-return
carriers electing incentive regulation.

   (a) A rate-of-return carrier, as defined in § 51.903(g) of this chapter,
   may elect to offer its business data services subject to incentive
   regulation pursuant to this section. A rate-of-return carrier may elect
   to offer business data services subject to incentive regulation
   pursuant to this section only if all affiliated rate-of-return carriers
   meeting the requirements of paragraph (b) of this section make the
   election. A carrier's election under this section is irrevocable.

   (b) A rate-of-return carrier is eligible to elect incentive regulation
   for its business data services if the carrier:

   (1) Receives universal service payments pursuant to the
   Alternative-Connect America Cost Model pursuant to § 54.311 of this
   chapter;

   (2) Is an affiliate of a price cap local exchange carrier operating
   pursuant to a waiver of § 61.41;

   (3) Receives universal service payments pursuant to § 54.306 of this
   chapter; or

   (4) Transitions away from legacy support mechanisms in the future.

   (c) A rate-of-return carrier electing to offer business data services
   pursuant to this section shall employ the procedures outlined in
   § § 61.42 through 61.49 to calculate rates for its business data services
   and adjust its indexes for those rates to the extent those sections are
   applicable to business data services, except that:

   (1) Exogenous costs associated with regulated services shall be
   allocated to business data services based on relative regulated
   business data services revenues, compared to regulated revenues and
   related support receipts; and

   (2) An electing carrier is not required to file a short form tariff
   review plan as required by § 61.49(k).

   (d) A rate-of-return carrier electing to offer business data services
   pursuant to this section must remove its business data services from
   the NECA Traffic Sensitive Pool. Such a carrier may continue to
   participate in the NECA Traffic Sensitive Pool and tariff for access
   services other than business data services.

   (e) A rate-of-return carrier offering business data services pursuant
   to this section may offer those business data services at different
   rates in different study areas.

   (f) A rate-of-return carrier offering business data services pursuant
   to this section may make a low-end adjustment pursuant to
   § 61.45(d)(1)(vii) unless it:

   (1) Exercises the regulatory relief pursuant to paragraph (g) of this
   section in any part of its service region; or

   (2) Exercises the option to use Generally Accepted Accounting
   Principles rather than the part 32 Uniform System of Accounts pursuant
   to § 32.11(g) of this chapter.

   (g) A rate-of-return carrier electing to offer business data services
   pursuant to this section may offer time division multiplexed transport
   and end user channel termination services at or below a DS3 bandwidth
   that include:

   (1) Volume and term discounts;

   (2) Contract-based tariffs, provided that:

   (i) Contract-based tariff services are made generally available to all
   similarly situated customers; and

   (ii) The rate-of-return carrier excludes all contract-based tariff
   offerings from incentive regulation; and

   (3) The ability to file tariff revisions on at least one day's notice,
   notwithstanding the notice requirements for tariff filings specified in
   § 61.58.

   (h) A rate-of-return carrier electing to offer business data services
   pursuant to this section shall comply with the requirements of § 69.805
   of this chapter in its study areas deemed non-competitive pursuant to
   this section.

   (i) The regulation of other services offered by a carrier that offers
   business data services pursuant to this section shall not be modified
   as a result of the requirements of this section.

   (j)(1) The Wireline Competition Bureau will conduct an initial
   competitive market test for rate-of-return carriers eligible to elect
   incentive regulation pursuant to this section. Study areas of such
   carriers will be deemed competitive if 75 percent of the census blocks
   within the study area are reported to have a minimum of 10 Mbps
   download and 1 Mbps upload broadband service offered by a cable
   operator based on the most current publicly available Form 477 data. A
   list of study areas deemed competitive by the competitive market test
   will be published on the Commission's website.

   (2) The Wireline Competition Bureau will conduct subsequent competitive
   market tests for rate-of-return carriers electing incentive regulation
   pursuant to this section contemporaneously with the subsequent tests
   mandated by § 69.803 of this chapter for price cap carriers.

   (3) A study area of an electing carrier deemed competitive by the
   competitive market test will retain its status in subsequent tests.

   (k)(1) Packet-based and time division multiplexed business data
   services above a DS3 bandwidth offered by a rate-of-return carrier
   pursuant to this section shall not be subject to ex ante pricing
   regulation.

   (2) Time division multiplexed end user channel termination business
   data services at or below a DS3 bandwidth offered by a rate-of-return
   carrier pursuant to this section in study areas deemed competitive by
   the competitive market test shall not be subject to ex ante pricing
   regulation.

   (3) A rate-of-return carrier electing incentive regulation for its
   business data services must detariff:

   (i) All packet-based and time division multiplexed business data
   services above a DS3 bandwidth within thirty-six months after the
   effective date of its election of incentive regulation; and

   (ii) All time division multiplexed end user channel termination
   business data services at or below a DS3 bandwidth in any study area
   deemed competitive by the competitive market test within thirty-six
   months after such services shall be deemed competitive in a study area.

   (l)(1) A rate-of-return carrier electing incentive regulation for its
   business data services effective July 1, 2019 must notify the Chief of
   the Wireline Competition Bureau of its election by May 1, 2019 for it
   to become effective concurrent with the annual access tariff filing in
   2019.

   (2) A rate-of-return carrier electing incentive regulation for its
   business data services effective July 1, 2020 must notify the Chief of
   the Wireline Competition Bureau of its election by May 1, 2020 for it
   to become effective concurrent with the annual access tariff filing in
   2020.

   (3) A rate-of-return carrier accepting future offers of
   Alternative-Connect America Cost Model support or otherwise
   transitioning away from legacy support mechanisms and electing
   incentive regulation for its business data services must notify the
   Chief of the Wireline Competition Bureau of its election by May 1
   following its acceptance of the offer for it to become effective
   concurrent with that year's annual access tariff filing.

   [ 83 FR 67122 , Dec. 28, 2018]

   

Subpart F--Formatting and Notice Requirements for Tariff Publications

   Source:  76 FR 43215 , July 20, 2011, unless otherwise noted.