On August 15, 2014, the Office of Management and Budget (“OMB”) approved the Federal Communications Commission’s (“FCC”) December 2012 Special Access Data Collection Order pursuant to the Paperwork Reduction Act of 1995 (See Notice of Office of Office of Management and Budget Action, OMB Control No. 3060-1197 (Aug. 15, 2014)).  The Special Access Data Collection will require providers and purchasers of $ 5 million or greater in special access services (in areas where the Incumbent Local Exchange Carrier (“ILEC”) is subject to price cap regulation), as well as entities providing “best efforts” services, to submit data for a comprehensive evaluation of the special access market by the FCC.  Furthermore, non-purchasers and non-providers are required to disclose and certify that they are not required to respond to the data collection if those entities filed a FCC Form 477 in 2012 to report the provision of “broadband connections to end user locations.”  (See Special Access for Price Cap Local Exchange Carriers, Report and Order and Further Notice of Proposed Rulemaking, WC Docket No. 05-25 (rel. Dec. 18, 2012)).

In short, the Special Access Data Collection applies to nearly every service provider in the industry (and nearly every client of our firm).  Failure to comply with the requirements is likely to lead to a future Omnibus Enforcement “sting” due to the ease by which the FCC can identify Non-Compliant service providers simply by comparing the Form 477 database against the filings in response to the Special Access Data request.

WE URGE ALL AFFECTED CLIENTS TO COMPLY.  THE BURDENS ON CERTAIN CLIENTS WILL BE MORE ONEROUS THAN ON THE MAJORITY, BUT NON-COMPLIANCE / IGNORANCE OF THE FCC ORDER IS NOT A VIABLE OPTION FOR ANY AFFECTED CLIENT.

Clients and all affected entities must understand that this new data collection creates significant reporting requirements for all entities that provided broadband connections to end user locations in 2012 as reported on the 2012 FCC Form 477.  This Advisory will discuss the present scope of the data collection, as well as the entities that are required to respond to the collection pursuant to the OMB’s August 15^th notice of approval.

Scope of the Data Collection

The OMB modified the scope of the Commission’s data collection to require applicable entities to provide data from the most recent calendar year.  This measure decreases the scope of the data collection by specifically excluding data from 2010 and/ or 2012 as previous iterations of the data collection’s parameters stated.

Covered Entities

In its current form, the Special Access Data Collection is organized into seven different sections of reporting requirements.  Under this organization of the data collection, a single entity may be required to report in one or more different sections depending on the scope of the particular section.  As of August 2014, the Commission’s Special Access Data Collection is divided into the following sections:

• Section A – Competitive Providers/ Purchasers of Special Access Service:  This section applies to the following entities –

1.  Competitive Providers:  Defined as one of the following entities that provide either (1) a “Dedicated Service” or (2) a “Connection that Could Provide a Dedicated Service”:

• Competitive Local Exchange Carrier (“CLEC”);
• Interexchange Carrier (“IXC”);
• Cable Operator;
• Wireless provider; and
• Any other entity under the Commission’s jurisdiction under the Communications Act of 1934 (excluding ILECs).

2.  Purchasers of Dedicated Service:  Includes both (1) “Competitive Providers” and (2) “End Users” (i.e., a business, institutional, or government entity that purchases Dedicated Service for its own purposes and does not resell such service) that purchase a Dedicated Service.  Note:  The Commission’s Wireline Competition Bureau previously clarified that the definition of “Purchaser” excludes entities subject to the Commission’s jurisdiction (i.e., the entity did not purchase a Dedicated Service nor provided a covered Best Efforts Business Broadband Access Service in a price cap area during the relevant reporting period) as a result of falling into one or more of the excluded categories listed in paragraph 13 of the 2012 Special Access Data Collection Order.

• Section B – Non-Exempt Entities Providing Best Efforts Business Broadband Internet Access Services:  This section applies to a best efforts Internet access data service with capacity equal to or greater than a DS1 Connection marketed to enterprise customers (including small, medium, and large businesses), but does not include (1) mobile wireless services or (2) entities having fewer than 15,000 customers and fewer than 1,500 business broadband customers.
• Section C – ILECs:  This section’s reporting requirements are applicable to Local Exchange Carriers (“LECs”) providing a Dedicated Service in study areas subject to price cap regulation under 47 C.F.R. §§ 64.41-64.49.
• Section D – All Providers:  This section’s reporting requirements encompass both (1) ILECs and (2) Competitive Providers as defined above.
• Section E – Purchasers Mobile Wireless Service Providers:  This section’s reporting requirements regarding cell site information are limited to purchasers that are mobile wireless service providers as generally defined by the Commission.
• Section F – All Purchasers:  This section is applicable to both (1) Competitive Providers and (2) End Users as defined above.
• Section G – Non-Providers/ Non-Purchasers:  All non-providers and non-purchasers of Special Access Services are required to disclose and certify that they are not required to respond to the data collection despite filing an FCC Form 477 in 2012 that reported the provision of “broadband connections to end user locations.”

Submission Deadlines

As of today’s date, the OMB’s approval of the Commission’s Special Access Data Collection has not been published in the Federal Register.  Thus, pending finality of the OMB’s notice of approval, the Commission has yet to announce the deadlines for responses to the data collection.

Penalties for Failure to Comply with the Data Collection Requirements

Entities that fail to comply with the new data reporting requirements may be subject to monetary forfeitures of up to $160,000 for each violation or each day of a continuing violation, up to a maximum of $1,575,000 for any single act or failure to act that is a continuing violation.  Please note that all entities who reported in their 2012 FCC Form 477 that they provided “broadband connections to end user locations” must respond to the data collection by both disclosing and certifying that they are not required to complete the data collection query.  Such entities failing to do so are subject to these stringent fines by the Commission.

Our firm will update this Advisory with the submission deadlines for the Special Access Data Collection once the date is announced by the Commission.  If you have any questions, please contact Jonathan S. Marashlian at jsm@commlawgroup.com, or by phone at 703-714-1313, or Robert H. Jackson at rhj@commlawgroup.com.