Excerpt from a letter sent by Cox Communications, Inc. to FCC Secretary Marlene Dortch:
…At this meeting, we discussed Chairman Wheeler’s proposed BDS rules as outlined in the Fact Sheet released on October 7, 2016. We stated that the Chairman’s decision to exclude cable companies and Ethernet services from ex ante rate regulation was consistent with the strong record of competition for these services. Although we also concurred in the decision to focus regulatory efforts on incumbent LEC TDM-based BDS, we expressed concern over the decision to impose new regulation on those services on a nationwide basis without any assessment of whether there was sufficient competition in any area to constrain ILEC pricing.
We also expressed Cox’s concern with a blanket finding that all BDS is a common carrier service. Cox explained that there was insufficient notice for the Commission to revise its common carriage jurisprudence, which equates “telecommunications services” with common carriage as defined in NARUC. We urged the Commission to seek further comment on the question of whether and to what extent BDS is or should be offered on a common carriage basis and argued that it must seek further comment before changing the Commission’s conclusions in Vitelco or Cable and Wireless. We further explained that, to the extent the record addressed this issue, the record supports a finding that BDS is offered on a private carriage basis and that purported record evidence of indiscriminate BDS offerings, such as Verizon’s submission of BDS advertisements, was insufficient to make a blanket common carriage finding.