Before the Federal Communications Commission Washington, D.C. 20554 in the Matter of Modernizing Unbundling and Resale Requireme

Before the Federal Communications Commission Washington, D.C. 20554

In the Matter of ) ) Modernizing Unbundling and Resale ) WC Docket No. 19-308 Requirements in an Era of Next-Generation ) Networks and Services )

COMMENTS OF SONIC TELECOM, LLC

Dane Jasper Karen Reidy Chief Executive Officer and Founder KTR Consulting, LLC Sonic Telecom, LLC P.O. Box 65444 2260 Apollo Way Washington, DC 20035 Sana Rosa, CA Counsel for Sonic Telecom, LLC

February 5, 2020

Table of Contents

I. Introduction and Summary……………………………………………………………1

II. Carriers Are Impaired in the Provisioning of Telephony and Broadband Services without Access to DSO Loops and Dark Fiber……………………………...6 a. UNE DSO Loops…...……………………………………………………………10 b. UNE Dark Fiber……...…………………………………………………………..17

III. The Commission Should Maintain Policies that Promote the Deployment of New Networks, Technologies and Services…………………………………………21 a. FTTH – A Network for the Future………………………………………………23 b. Access to Unbundled Copper Loops and Dark Fiber are Instrumental to Competitive FTTH Deployment………………………………………………...25 c. Competition by UNE-Based Competitors Promotes ILEC Fiber Build………...27 d. Use of DS0 Loops and Dark Fiber Foster Innovation and the Transition to More Advanced Technology…………………………………………………….28

IV. Conclusion…………………………………………………………………………...31

Before the Federal Communications Commission Washington, D.C. 20554

In the Matter of ) ) Modernizing Unbundling and Resale ) WC Docket No. 19-308 Requirements in an Era of Next-Generation ) Networks and Services )

COMMENTS OF SONIC TELECOM, LLC

I. INTRODUCTION AND SUMMARY

"SMALL BUSINESSES ARE CRITICAL TO THE ECONOMY: Small businesses are a primary driver of the American economy and when they succeed so does the country."1 When

President Trump signed an executive action aimed at cutting regulations, his goal was to "create an environment for small business."2 The Commission should be guided by this goal and the fact that not all rules are harmful to small businesses. Some laws promote them. This is the case of the Telecommunications Act of 1996—and the specific unbundling provisions and implementing rules at issue in this Notice of Proposed Rulemaking (“NPRM”)3 —which enable small carriers to compete against behemoth incumbent carriers. These pro-competition, pro-small business

1 "President Donald J. Trump is Giving Small Businesses a Boost," White House Fact Sheet, Nov. 29, 2017, available at: https://www.whitehouse.gov/briefings-statements/president-donald- j-trump-giving-small-businesses-boost/

2 "Trump Signs Order to Cut Small-Business Regulations," Association Press, Jan. 31, 2017, available at: https://www.inc.com/associated-press/trump-order-cuts-small-business- regulations.html

3 Modernizing Unbundling and Resale Requirements in an Era of Next-Generation Networks and Services, Notice of Proposed Rulemaking, WC Docket No. 19-308, FCC 19-119 (rel. Nov. 25, 2019) (NPRM). laws are necessary for a company like Sonic—a small business carrier that is providing the fastest Internet speed in the country, building a broadband network for the future, fostering innovation in the industry, and loved by consumers—to exist and grow.

AT&T, the incumbent in the area Sonic operates, is the largest telecommunications company in the world.4 AT&T is over 500 times the size of Sonic.5 AT&T also has the market advantage of having an existing connection to nearly, if not every, location in its incumbent region. Yet, with the bit of parity the provisions of the Act provide, Sonic is building the fastest fiber network in the country. Moreover, Sonic's fiber build is almost purely to residential subscribers, where fiber deployment is significantly lacking and far less financially attractive than in the business market.6 Sonic is switching its customers to fiber-based services at a faster rate than AT&T. As a percentage of their respective subscriber-bases, Sonic has 41% on fiber to

AT&T's 27%.7 Sonic offers faster broadband speeds than AT&T in nearly all of the census

4 See, Greg McFarlane, "How AT&T Makes Money," Sept. 25, 2019, available at: https://www.investopedia.com/insights/how-att-makes-money/; See also, https://en.wikipedia.org/wiki/AT%26T (AT&T “is the world's largest telecommunications company, the largest provider of mobile telephone services, and the largest provider of fixed telephone services in the United States through AT&T Communications.")

5 Sonic has 520 employees to AT&T’s 268,220 (as of 2018). AT&T 2018 employee count is available at: https://www.statista.com/statistics/220683/number-of-atundt-employees-since-2007/ A comparison of revenue would show an even substantially greater disparity.

6 By the end of 2016, Sonic had deployed more fiber than AT&T (and cable combined) in the areas Sonic operates. See Declaration of William P. Zarakas at 3, Table 1 (“Zarakas Declaration”), attached to Opposition of INCOMPAS, FISPA, Midwestern Association of Competitive Communications, and the Northwest Telecommunications Association, WC Docket No. 18-141 (filed Aug. 6, 2018) (Joint Opposition).

77 See, Mike Robuck, “AT&T banks on fiber build to fuel its OTT services,” Fierce Telecom, Jan. 29, 2020; available at: https://www.fiercetelecom.com/telecom/at-t-banks-fiber-build-to- fuel-its-ott-services (AT&T has a total of 14.1 million broadband subscribers, 3.88 million of which are fiber broadband customers.)

2 blocks Sonic serves.8 In fact, PCMag.com named Sonic the fastest ISP in the United States in

2019—even faster than all the “major” ISPs (e.g., Verizon, AT&T, Comcast, etc.). PCMag said

Sonic's PCMag Speed Index is the highest it has seen “in Fastest ISPs history for an individual

ISP.”9 Exemplifying the entrepreneurial spirit shown by many competitors using unbundled network elements, Sonic was the first provider in San Francisco to engage in widespread deployment of Gigabit fiber-to-the-home service.10 The transformative nature of the services

Sonic and other competitors using unbundled network elements bring to the industry is further demonstrated by the over eleven thousand individualized customer letters to the Commission in support these carriers’ ability to maintain access to the tools needed to continue operating.

It is clear that the use of unbundled network elements by Sonic and other competitors does not “inhibit the deployment of, and transition to, next-generation networks and services that benefit American consumers and businesses,” as is suggested in NPRM and the premise for the

Commission’s proposals.11 Quite the opposite, the unbundling provisions of the Act are empowering carriers that are a driving force in the industry. The Act is working.

Sonic submits these comments in response to the Commission’s NPRM in the above- referenced proceeding, and hereby incorporates by reference all of the filings Sonic submitted in

8 Zarakas Declaration at 10, para. 21.

9 Eric Griffith, “The Fastest ISPs of 2019,” PCMag.com, Jun. 26, 2019, available at: https://www.pcmag.com/news/the-fastest-isps-of-2019

10 Joint Opposition at 4.

11 NPRM at para. 3 (“We make these proposals consistent with our continuing efforts to remove unnecessary regulatory burdens that can inhibit the deployment of, and transition to, next- generation networks and services that benefit American consumers and businesses.”)

3 the USTelecom Forbearance proceeding.12 In the NPRM the Commission seeks comment on proposed rule changes and forbearance with regard to the remaining unbundling and resale requirements.13 Sonic views all the unbundling and resale provisions of the Act to be important in bringing competition, innovation and value-added services to the market through various types of competitive providers. In these comments, Sonic focuses on the continued need for unbundled DSO Loops (as defined in the NPRM)14 and unbundled dark fiber, particularly with regards to the use of these facilities by partially facilities-based fiber builders, like Sonic, to serve and ultimately deploy fiber to the residential marketplace. For the reasons discussed herein, the Commission should refrain from adopting any rule changes or granting forbearance for these facilities.

The record in the USTelecom Forbearance proceeding (hereinafter the “Forbearance

Record”) and these comments demonstrate that reasonably efficient carriers of all sizes face impairment in providing telephony and broadband services and in deploying new networks without access to DS0 Loops and unbundled dark fiber. Impairment is particularly acute in the case of small carriers. As the Small Business Administration cautions, Commission action that would eliminate these provisions “could have a devasting impact on small businesses that rely on unbundled network elements (UNEs) to serve customers with competitive voice and data

12 Petition of USTelecom for Forbearance Pursuant to 47 U.S.C. § 160(c) to Accelerate Investment in Broadband and Next-Generation Networks, WC Docket No. 18-141 (Petition filed May 4, 2018).

13 NPRM at 3 (seeking comments on proposed rule changes) and at 49 (seeking comment on alternatively forbearing for DS0 Loops); See also NPRM at para. 20 (identifying current unbundling and resale requirements).

14 Id. (The NPRM uses DS0 Loops to collectively reference mass market copper digital and xDSL-capable loops.)

4 services.”15 This is even more evident in the residential marketplace. Indeed, the Commission cannot reasonably expect small carriers to do what the substantially larger incumbent LECs have failed to do—deploy fiber-to-home (“FTTH”) in areas they lack an established customer base, i.e., deploy networks entirely on speculation.

Other considerations—such as achieving and maintaining the objectives of Section 70616 and other provisions of the Act—also support continued access to these unbundle elements, both in conjunction with impairment and independently. Specifically, the consideration of other important objectives and goals favors the continuation of the unbundling provisions, not the elimination of unbundling despite impairment. It is also noteworthy—albeit unnecessary since impairment exist—that, as the Commission has recognized, the “at minimum” provision of

Section 251(d)(2) permits the Commission to order unbundling even in the absence of impairment.17 Finally, as demonstrated in Sonic’s Opposition in the USTelecom Forbearance

15 Letter from Major L. Clark, Acting Chief Counsel, and Jamie Belcore Saloom, Assistant Chief Counsel, Office of Advocacy, U.S. Small Business Administration, to Marlene H. Dortch, Secretary, FCC, WC Docket Nos. 18-141 et al., at 3 (filed Aug. 1, 2018) (SBA Letter).

16 47 U.S.C. § 1302 (Section 706 of the Act) (“The Commission . . . shall encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.”)

17 Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers et al., Report and Order and Order on Remand and Further Notice of Proposed Rulemaking, CC Docket Nos. 01-338 et al., 8 FCC Rcd 16978, para. 7 (2003) (Triennial Review Order). (Although we have not required the unbundling of any network elements in this Order in the absence of impairment, we find that [the “at a minimum”] provision permits us to consider, when appropriate, “other” factors closely tied to the purposes of the statute in reaching an unbundling determination.”); id. at para. 174 ("We reject arguments that the Commission can only use the “at a minimum” language to decline to unbundle despite impairment...or that the Commission must decline to unbundle if unbundling would frustrate other Congressional goals...[W]e find that it is reasonable to interpret the phrase to permit the Commission to make unbundling determinations in light of the Act’s many and conflicting goals, not just goals that would limit incumbent LECs’ unbundling obligations."); id. at para. 172 (While noting the Commission must provide justification, the Court clearly believed the Commission could order “access to UNEs in

5 proceeding,18 and further buttresses by these comments, forbearance from the provisions of the

Act and the implementing rules requiring access to DSO Loops and unbundled dark fiber is not warranted.

II. Carriers Are Impaired in the Provisioning of Telephony and Broadband Services without Access to DSO Loops and Dark Fiber The Communications Act requires that incumbent LECs provide unbundled network elements to requesting telecommunications carriers.19 In determining which elements are subject to unbundling, the Act directs the Commission to consider, “at a minimum,” whether access to proprietary network elements is necessary, and whether failure to provide an element on an unbundled basis would “impair” a requesting carrier’s ability to provide service.20 The

Commission has held that a requesting carrier is impaired “when lack of access to an incumbent

LEC network element poses a barrier or barriers to entry, including operational and economic barriers, that are likely to make entry into a market uneconomic.”21 Impairment is evaluated

"with regard to a reasonably efficient competitor."22 The following factors have been deemed relevant: (1) economies of scale; (2) sunk costs; (3) first-mover advantages; (4) absolute cost

circumstances where there is little or no reason to think that its absence will genuinely impair competition.”)

18 Opposition of Sonic, LLC to Petition for Forbearance of USTelecom, WC Docket No. 18- 141 (filed Aug. 6, 2018) (Sonic Opposition).

19 47 U.S.C. Section 251(c)(3).

20 47 U.S.C. Section 251(d)(2).

21 Unbundled Access to Network Elements; Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, Order on Remand, FCC 04-290, 20 FCC Rcd 2535, paras. 10 and 22 (2005) (Triennial Review Remand Order), aff’d, Covad Commc’ns Co. v. FCC, 450 F.3d 528 (D.C. Cir. 2006).

22 Triennial Review Remand Order at para. 22.

6 advantages; and (5) barriers within the control of the incumbent.23 The framework is meant to be

"self-effectuating, forward-looking, and consistent with technology trends that are reshaping the industry."24 An expressed aim of the Commission was to bring “competition to markets faster than it might develop in the absence of the market-opening requirements of the 1996 Act.”25

Consistent with the Commission’s vision, Sonic and other competitive carriers are using unbundled network elements “as a stepping stone to deployment of their own facilities.”26 The highly capital intensive nature of fiber network construction produces a fundamental need for

UNEs. These facilities are needed for competitors’ initial provision of services which affords them the revenue necessary to finance the one-time upfront costs to deploy last-mile fiber facilities, as well as provide an establish customer base to serve upon expending these resources.

Accordingly, competitors like Sonic are using DSO Loops and dark fiber as an initial means to serve customers. Once they have established a sufficient customer base, they build their own fiber-based network and transition their existing customers in that region onto their network. As

Professor Sappington stated, “[t]his process is well-documented, both in principle and in fact.”27

It, therefore, reflects the practice of a ‘reasonable efficient competitor.’

The need to build out incrementally, and only after the establishment of a sufficiently large customer base, is particularly pertinent in the residential marketplace where individual

23 Triennial Review Remand Order at paras. 10 and 22.

24 Triennial Review Remand Order at para. 3.

25 Id. at para. 11.

26 NPRM at para. 9.

27 Declaration of David E. M. Sappington at 15 (“Sappington Declaration”), attached to Joint Opposition.

7 customers do not generally generate high revenue at a single location or enter into long term contracts to ensure repayment for sunken costs.28 ILEC practices provide further confirmation of the incremental nature, along with the need for an established customers base, for constructing a

FTTH network. To the extent ILECs are deploying FTTH, they generally do so in their respective incumbent regions where they have an existing connection to nearly, if not every, customer location.29 This access provides the means by which the ILECs serve their customer- base as they incrementally overbuild these connections with a fiber network. This is not just a matter of convenience. As stated in the Zarakas Declaraion, “few if any competitive operators – including ILECs with respect to markets outside of their footprint – can afford to build-out networks on a fully speculative basis.”30 And, even with an enormous footprint of established

28 Triennial Review Order at para. 237 (Whether for narrowband or broadband services, a “carrier will not deploy mass market loops unless it knows in advance that it will have customers that will generate sufficient revenues to allow it to recover its sunk loop investment . . . [and] long-term contracts are not commonplace in the mass market for either the narrowband or the broadband services and we have no information in our record to indicate that consumers ordinarily would accept such terms.”)

29 See, “Verizon FiOS Availability,” Verizon.com, available at: https://www.verizon.com/home/fiosavailability/ (FiOS is currently available in “key metro areas” (i.e., not the whole state), in New Jersey, New York, Maryland, Delaware, Massachusetts, Pennsylvania, Rhode Island, Virginia and the District of Columbia.); The BDS data showed that ILECs and their affiliated CLECs are not even significantly building fiber to business locations outside of their respective territories. See M. Rysman, “Empirics of Business Data Service,” WC Docket Nos 05-25, 13-5, 16-143 at 11-12 (Rev. June 2016) (only 7% of buildings were served by ILEC-affiliated CLECs on a full facilities basis), available at: https://docs.fcc.gov/public/attachments/DOC-340040A6.pdf.

30 Zarakas Declaration at para. 16.

8 connections, AT&T’s plans for fiber investment will be “based on the incremental, economic case.”31

Other obstacles to the deployment of loop and transport facilities remain, a number of which are at the hands of the ILEC. As Sonic’s CEO explained in the USTelecom Forbearance proceeding, in areas where the jointly-owned utility pole is overloaded, as owner of the communications portion of the pole, the ILEC will not reinforce the pole to resolve the preexisting safety issue, and to support Sonic’s own fiber attachments. The ILEC has also created hurdles in access to conduit, such as requiring separate Sonic vaults instead of allowing

Sonic to place splice cases to accommodate fiber in the conduit and vault system. Other obstacles include delayed processing of routine applications, delayed access to information about the locations of poles and conduit, changing and undisclosed procedural requirements, and other artificial barriers to competitive fiber deployment.32 Additionally, competitive fiber builders face barriers imposed by many state and local governments, as Sonic has described with regard the to the City of San Francisco33 and Zayo has recently described more broadly.34 While the

31 Mike Robuck, “AT&T's Donovan says telco will take a more incremental approach to fiber builds,” Fierce Telecom, Jun. 5, 2019, available at: https://www.fiercetelecom.com/telecom/at-t- s-donovan-says-telco-will-take-a-more-incremental-approach-to-fiber-builds.

32 Declaration of Dane Jasper at para. 11 (Jasper August 2018 Declaration), attached to Sonic Opposition; See also, Sonic Opposition at 6-7.

33 See Jasper August 2018 Declaration at para. 11 (“The city does not currently permit industry- standard trenchless construction methods such as directional boring or microtrenching. While the City’s Order states that these trenchless technologies may be approved upon application to the Director, in Sonic’s experience they are never approved. In these areas, UNEs are absolutely critical last-mile facilities.”); See also, Sonic Opposition at 20.

34 Letter of Thomas Jones, Counsel for Zayo Group, LLC, to Marlene H. Dortch, FCC, WT Docket No. 17-79 and WC Docket No. 17-84 (filed Oct. 31, 2019).

Commission has taken steps to address some of the barriers to deployment related to pole attachments, numerous states such as California have opted to invoke reverse preemption and the

Commission has not clearly extended its small cell policies to wireline fiber deployment. Loops and dark fiber allow Sonic to provide service where they are prevented from deploying as a result of these impediments.35

In order to serve customers while building out their networks, competitors need access to both loops and transport. Access to UNE DS0 Loops and UNE dark fiber transport are particularly needed since a carrier is impaired in providing “the services that it seeks to offer”36 if the access does not enable that carrier to provision service via its own electronics and, thereby, distinguish its service offerings.

a. UNE DSO Loops

The local loop is the last-mile connectivity to the end-user. The Commission’s rules require incumbent LECs to make UNE DS0 Loops available nationwide.37 These broadband- capable loops are used to serve both business and residential customers. Sonic primarily purchases xDSL-capable DS0 Loops so that it can use its own electronics to deliver voice services and high-speed broadband to residential customers. The xDSL-capable loops are also used to provide dedicated broadband services, such as Ethernet-Over-Copper, generally to business customers. The use of its own electronics allows a competitor to customize and control the service provided over the loop, including service quality and security,38 and, as discussed

35 Jasper August 2018 Declaration at para. 11; Sonic Opposition at 7 and 20.

36 47 U.S.C. Section 251(d)(2)(B).

37 See NPRM at para. 20.

38 Jasper August 2018 Declaration at para. 14.

10 more fully further below (Section III (d)), empowers significantly more innovation in the services consumers are provided. The distinction in type and quality of service enables competitors to establish a loyal customer base and start the transition of the customer’s mindset, and demand, for the services that will be available on the competitor’s own network. Current finished wholesale broadband Internet access service offerings do not allow the competitor to distinguish its product offering, are far more expensive, and have onerous terms associated with them.39 Thus, there is no existing substitute for the DS0 Loop.

Accordingly, the facts that form the basis of the Commission’s previous finding of impairment for the DSO Loop hold true today: the costs of local loops serving the mass market are largely fixed and sunk;40 a carrier will not deploy mass market loops unless it knows in advance that it will have customers that will generate sufficient revenues to allow it to recover its sunk loop investment; competitive fiber builders still have to obtain pole attachments and other rights-of-way access for which the ILEC erects barriers; long-term contracts are still not a commonplace in the residential marketplace, even for broadband services; and, there is no wholesale alternative to the DS0 Loop.

The Commission, nevertheless, proposes to find that competitive LECs are no longer impaired in urban census blocks without access to DS0 Loops.41 The proposal is based almost

39 Id. at paras. 14-15.

40 Moreover, experts at Fiber Broadband Association have determined the cost of deploying FTTH has basically remained unchanged in the last decade. See All-fiber Deployment Cost Study 2019 at 4, attached to Letter from Lisa R. Youngers, Pres. & CEO, Fiber Broadband Ass’n, to Marlene H. Dortch, Secretary, FCC, WC Docket Nos. 19-126 and 10-90 (filed Sept. 12, 2019) (Fiber Broadband Assoc. Sept. 12 Letter).

41 NPRM at para. 38.

11 exclusively on what the Commission views as "the presence of nearly ubiquitous cable deployment in urban areas."42 Specifically, the Commission claims “cable providers make available facilities-based 25/3 Mbps Internet access service, which meets the Commission’s definition of advanced telecommunications capability, without the use of UNEs to 97% of households in urban census blocks."43 The source of this assertion is Form 477 data as of June

30, 2018.44

There are numerous flaws in this analysis. First, and foremost, the extent of cable deployment is not demonstrative of a lack of impairment in accordance with the factors set forth by the Commission for determining the existence of impairment. Cable modem networks were deployed at the time of the Commission’s earlier orders adopting unbundling rules for the local loop.45 Significantly, cable companies deployed their networks with a first mover advantage in the provision of cable television services. Their networks merely had to be augmented to provide telephony and broadband services, i.e., the bulk of the sunken costs already had been incurred and the customer base established. As a result, their experience in entering the market

42 Id. at para. 39

43 Id.

44 Id., ftn. 139.

45 “Indeed, in considering the 1996 Act, Congress recognized that cable operators were likely to emerge as facilities-based competitors for local telephone services. Were that level of competition sufficient to fulfill Congress’ goals for telephone services, the 1996 Act only would have needed to require interconnection. Instead, Congress established means for additional competitors to enter without fully duplicating the incumbent’s local network. It is clear Congress wanted to enable entry by multiple competitors through use of the incumbent LEC’s network.” Petition of Qwest Corporation for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona Metropolitan Statistical Area, Memorandum Opinion and Order, WC Docket No. 09- 135, FCC 10-113, para. 32 (rel. Jun. 22, 2010) (“Qwest Phoenix Forbearance Order”).

12 and deploying a broadband network is more similar to fiber overbuild by ILECs, rather than a competitor entering a market and building a network with no existing facilities or customers.

Second, the notion of relying on any one alternative provider that does not use ILEC facilities is faulty. The Commission has previously stated its belief that “Congress rejected implicitly the argument that the presence of a single competitor, alone, should be dispositive of whether a competitive LEC would be ‘impaired’ within the meaning of section 251(d)(2).”46

The deficiency of solely relying on cable presence for competition is demonstrated by the

Zarakas study in the USTelecom Forbearance proceeding. This study showed that, without

Sonic’s fiber and UNE-based broadband services, for broadband service of 25/3 Mbps or greater, consumers in half of the census blocks Sonic operates would have had no choice in broadband service provider.47 Furthermore, without Sonic, consumers in 523 census blocks would not have been able to receive 25/3 Mbps service at all.48 Sonic is also not aware of any wholesale local loop offerings from cable companies.

46 Local Competition Provisions of the Telecommunications Act of 1996, CC Docket No. 96-98, Third Report and Order and Fourth Further Notice of Proposed Rulemaking, 15 FCC Rcd 3696, para. 55 (1999) (UNE Remand Order) (The Commission further states that a “standard that would be satisfied by the existence of a single competitive LEC using a non-incumbent LEC element to serve a specific market, without reference to whether competitive LECs are ‘impaired’ under section 251(d)(2), would be inconsistent with the Act’s goal of creating robust competition in telecommunications.”); See also, Qwest Phoenix Forbearance Order at para. 32 (“[F]orbearing from unbundling obligations on the basis of duopoly, without additional evidence of robust competition, appears inconsistent with Congress’ imposition of unbundling obligations as a tool to open local telephone markets to competition in the 1996 Act.”)

47 Zarakas Declaration at para. 12.

48 Id.

Third, to the extent competitive deployment is relevant, it needs to be backed by credible

"detailed evidence.”49 The Commission's Form 477 data is insufficient for this purpose.

Members of Congress, the Chairman, Commissioners, USTelecom, and individual ILECs have recognized this data has serious flaws and expounded on the unreliability of this data in providing an accurate picture of broadband deployment.50 Two primary concerns with the existing data are inaccurate reporting by a provider and the fact that fixed providers, such as cable providers, list census blocks in which they can or do offer service to at least one location.

As the FCC webpage on Form 477 Data states:

49 See Triennial Review Remand Order at para. 4.

50 See e.g., House Energy and Commerce Committee, Subcommittee on Communications & Technology Hearing, “Accountability and Oversight of the Federal Communications Commission” (May 15, 2019), https://energycommerce.house.gov/committee- activity/hearings/hearing-onaccountability-and-oversight-of-the-federal-communications Chairman Pai’s exchange with Rep. McEachin (beginning at 2:02:37) (“[W]e’re currently in the process of revamping that Form 477 process working with stakeholders from different sectors of the industry to figure out how to improve it and that problem [Rep. McEachin] identified about the census block being deemed covered if a single household in the block is getting service but nowhere else is.”); id. (acknowledging errors in the initially reported 2017 data that overstated the extent to which the digital divide has been closing); Commissioner O’Rielly acknowledged that third-party challenges were “how we found some of the problems with our current maps.” Id. (beginning at 2:30:48); Commissioner Rosenworcel described the broadband map as “a mess.” Id. (beginning at 51:00); Commissioner Starks noted that errors in the data had resulted in the Commission’s broadband having initially “inflated its coverage by nearly 62 million persons” before it was corrected by a public interest group. Id. (beginning at 55:45); See also, House Energy and Commerce Committee, Subcommittee on Communications & Technology Hearing, “Accountability and Oversight of the Federal Communications Commission” (Dec. 5, 2019), available at: https://energycommerce.house.gov/committee-activity/hearings/hearing-onaccountability-and-oversight-of-the-federal-communications-0 (beginning at 55:36)(All Commissioners agreed by raising their hands that the data is flawed and flawed data prevents good decisionmaking.); Testimony of Jonathan Spalter President and CEO, USTelecom before the Senate Commerce Committee “Broadband Mapping: Challenges and Solutions” Apr. 10, 2019 at 2 (discussing how “in some cases, only a fraction of locations in the block can access broadband services.”); Letter of Ola Oyefusi, AT&T, to Marlene H. Dortch, FCC, WC Docket Nos. 11-10, 10-90, at 1 (filed Oct. 12, 2018) (discussing “how to achieve a more granular view of broadband deployment than that provided by the current Form 477 reporting.”).

A provider that reports deployment of a particular technology and bandwidth in a particular census block may not necessarily offer that particular service everywhere in the census block. Accordingly, a list of providers deployed in a census block does not necessarily reflect the number of choices available to any particular household or business location in that block, and the number of such providers in the census block does not purport to measure competition.51

Taking concrete action to rectify this issue, in adopting an Order and Notice of Proposed

Rulemaking to overhaul the Commission’s current broadband data collection process, Chairman

Pai stated that the Commission “will no longer count everyone in a census block as served if just one person is served.”52 The item adopted also proposes a crowdsourcing mechanism to verify the accuracy of providers’ reporting, as the Commission going forward is “not just going to take carriers at their word.”53 Accordingly, the Commission should not rely on the existing Form 477 data—which does not adhere to these principles—for its unbundling analysis, particularly when it has an ongoing initiative intended to address the problems of a one-served-all-served approach and inaccurate reporting.

Forth, evaluating broadband competition based on speeds of 25/3 Mbps is not the appropriate standard for a unbundling approach that is intended to be “forward-looking” and

51 See Explanation of Broadband Deployment Data, Block-Level Deployment and Competition, FCC, available at https://www.fcc.gov/general/explanation-broadbanddeployment-data (last visited Feb. 1, 2020) (emphasis added.)

52 Statement of Chairman Ajit Pai, Establishing the Digital Opportunity Data Collection Modernizing the FCC Form 477 Data Program, Report and Order and Second Further Notice of Proposed Rulemaking, WC Docket Nos. 19-195 and 11-10, FCC 19-79 (rel. Aug.6, 2019) (“DODC/Form 477 Order and NPRM”) (emphasis added).

53 Statement of Commissioner Brendan Carr, DODC/Form 477 Order and NPRM; See also DODC/Form 477 Order and NPRM at para. 3 (“[W]e adopt a process to begin collecting public input, sometimes known as “crowdsourcing,” on the accuracy of service providers’ broadband deployment data.”) See also, id. at paras. 88-99.

“consistent with technology trends.”54 Competitors are offering much faster speeds than 25/3

Mbps over the unbundled DSO loop, and substantially higher speeds over the fiber loops that are ultimately constructed as a result of the availability of UNEs. Sonic offers residential customers up to 50/15 Mbps over a single UNE DSO Loop; up to 100/3 Mbps over a bonded pair of UNE

DS0 Loops; and, 1 Gbps over its own fiber. 55 As discussed further below in Section III (d), numerous competitive carriers, likewise, use DSO Loops with their own electronics to provide upgraded services. Moreover, the Commission’s Measuring Broadband America report found the median download speed among the largest Internet Service Providers was 72 Mbps more than two years ago.56

The NPRM otherwise merely makes conjectures on competition that has not come close to fruition from wireless technologies. Namely, the NPRM cites Verizon's announced plans to deploy 5G-based fixed wireless service beyond five cities—plans which have been delayed yet again.57 Verizon 5G Home Internet is currently only available “in limited areas” of these five

54 See Triennial Review Remand Order at para. 3.

55 Jasper August 2018 Declaration at para. 4.

56 Eighth Measuring Broadband America Fixed Broadband Report “A Report on Consumer Fixed Broadband Performance in the United States,” FCC, at Executive Summary (Dec. 14, 2018)(available at: https://www.fcc.gov/reportsresearch/reports/measuring-broadband- america/measuring-fixed-broadband-eighth-report.

57 Jay Peters, “Verizon delays in-home 5G rollout again due to the need for new equipment, It’s still only available in five cities.” The Verge, Jan. 10, 2020, available at: https://www.theverge.com/2020/1/10/21060133/verizon-5g-home-rollout-delay-again-equipment (“Verizon’s 5G Home service has already had a choppy history . . . This isn’t the first time Verizon has delayed the rollout of 5G Home. . . So you might be waiting a while for the service to reach your neighborhood, if it ever does.”)

16 cities.58 The NPRM also cites to Starry's discussion of deployment, likewise only in certain locations in a mere 5 major cities.59 The assertions made to investors by AT&T’s CEO about what may happen in the future, likewise should not be relied upon by the Commission to change important policies now.60 Indeed, the fact that these relate to possibilities in the future—along with the fact that it is projected to be almost 10 years before 90% of homes will be passed by

FTTH61—only supports that this NPRM is premature, a fact not rectified by a three year transition.

b. UNE Dark Fiber

Incumbent LEC interoffice facilities, for the most part, had been replaced with fiber prior to the 1996 Act.62 Dark fiber, by definition, is excess, unlit capacity in a fiber cable. It requires significant investment by the user to "light" the fiber. Already “lit” fiber is not a substitute for dark fiber. As the Commission previously recognized, "competing carriers using unbundled dark fiber transport can operate more efficiently than when using lit transport, because the competing carrier itself engineers and controls the network capabilities of transmission and can maximize

58 Verizon 5G Home Internet FAQs https://www.verizonwireless.com/support/5g-home-faqs/ (last downloaded on 2/1/2020)(emphasis added) (Verizon 5G Home Internet is currently available in limited areas of Chicago, IL; Sacramento, CA; Los Angeles, CA; Houston, TX; and Indianapolis, IN.”)

59 NPRM at para. 40, ftn. 144.

60 See NPRM at para. 40.

61 See Letter from Lisa R. Youngers, Pres. & CEO, Fiber Broadband Ass’n, to Marlene H. Dortch, Secretary, FCC, WC Docket Nos. 19-126 and 10-90, at 1, Attach. 1 (filed Sept. 12, 2019) (Fiber Broadband Assoc. Sept. 12 Letter).

62 Triennial Review Remand Order at para. 135.

17 the use of previously dormant fiber."63 This interoffice transport facility is critical to competitors for connecting distant central office locations back to the competitors core network. As one carrier aptly put it, the loss of unbundled dark fiber would “essentially balkanize [its] existing network infrastructure into separate unconnected “islands” that lack transport capacity to move traffic to and from [its] core network.”64 Dark fiber interoffice transport is only required to be provided as a UNE when at least one end is in a Tier 3 wire center, i.e., one of the ILEC wire centers does not have at least 24,000 business customers, at least three fiber-based collocators, or both.65

Replicating the incumbent LEC interoffice network facilities as necessary for serving the residential marketplace (and otherwise) would be prohibitively expensive and take many, many years. In the case of Sonic, it would be $580 million.66 This buildout alone is unmanageable, but even more so for a carrier in the process of incrementally building out a FTTH network with the limited revenue generated from individual residential customers. As the Commission previously acknowledged, “carriers are capable of activating dark fiber when they have aggregated sufficient revenues from traffic to justify the deployment of extensive optronics, but even at such revenue levels, sometimes carriers have not achieved sufficient revenues to justify the high expense of fiber deployment.”67

63 Id.

64 Reply Comments of Uniti Fiber, WC Docket No. 18-141, at 5 (filed Sept. 5, 2018).

65 47 C.F.R. § 51.319(d)(2)(iv).

66 Jasper August Declaration at para. 17.

67 Triennial Review Remand Order at para. 134.

The Commission, nonetheless, proposes finding that competitive LECs are not impaired without access to unbundled dark fiber transport for routes between wire centers that the

Commission granted forbearance from UNE DS1/DS3 Transport obligations in the UNE

Transport Forbearance Order, having found those wire centers are within a half mile of alternative fiber.68 This proposed finding is based on the assumption that the carrier “should be able to obtain such transport, if available, on a commercial basis at competitive rates, or by building its own transport network.”69

The record, however, lacks evidence that dark fiber would be available on the routes where forbearance was granted. Sonic’s CEO declared, “[w]ith very limited exception, there is no available dark fiber transport from any entity other than the ILEC that connects [with Tier 3 wire centers in Sonic service territory].”70 Ethernet transport facilities, i.e., “lit” fiber, do not match the quality, flexibility, and price of the interoffice dark fiber UNE. Sonic, for one, uses

UNE dark fiber along with its own electronics to obtain speeds up to 400 Gbps, with plans to increase that capacity.71 ILEC lit fiber offerings reduce Sonic’s ability to design, manage and troubleshoot the transport network, 72 and “often lack the route redundancy require to reliably provide life-critical telecommunications services.”73 Ethernet transport offerings are also

68 NPRM at para. 73 and ftn. 225.

69 NPRM at para. 73.

70 Declaration of Dane Jasper at para. 4-5 (Jasper May 2019 Declaration), attached to Reply of Sonic Telecom,LLC to Comments Addressing April 15, 2019 Public Notice Seeking Additional Comment, WC Docket No. 18-141 (filed May 28, 2109).

71 Jasper August 2018 Declaration at para. 7.

72 Sonic Opposition at 10.

73 Jasper May 2019 Declaration at para. 4.

19 hundreds of times more expensive and come with inflexible terms,74 making their use especially inconducive for the residential marketplace.

Moreover, the presence of alternative fiber does not mean the ability to economically self-deploy, particularly for serving the lower revenue generating residential communities. As noted above, for Sonic, a replacement dark fiber network would cost over $580 million to build, which is prohibitively expensive for a carrier of its size operating primarily in the residential marketplace.75 Uniti Fiber has also explained that, while “Uniti may be able to overbuild some of these routes, many are in locations and over geographic obstacles that would be extremely costly, if not impossible, for [Uniti] to re-create."76 Also, the need for loops and transport go hand-in-hand. You need both to provide service. Consequently, loss of UNE dark fiber could prevent significant competitive fiber loop deployments and possibly strand those FTTH networks already built. As example, IdeaTek uses access to unbundled dark fiber transport to provide backhaul for the FTTH network it built in a small Kansas community outside of Wichita. Given the size of the customer base, IdeaTek would likely not have been able to make a business case to build a FTTH network without the availability of unbundled transport.77 With so much capital resources needed to deploy FTTH, it would be wasteful policy to encourage building more excess fiber capacity for transport.

74 Jasper August Declaration at para. 16.

75 Id. at para. 17.

76 Letter of Jeffrey R. Strenkowski, Uniti Fiber, to Marlene Dortch, FCC, WC Docket No. 18- 141, at 1 (filed Jul. 13, 2019)

77 Declaration of Daniel Friesen at para. 5, attached to Joint Opposition (“Friesen Declaration”).

Indeed, the proposal in the NPRM would create a policy of encouraging deployment of very expensive fiber in areas where it is already deployed and not being used, diverting resources from areas that lack FTTH buildout. The Commission should continue with its existing, sensible policy that “allows for very efficient use of facilities that incumbent LECs have already deployed but that would otherwise lay fallow.”78 This is especially prudent, as is the case here, for facilities critical to connecting customers, provisioning advanced service, and supporting the buildout of last mile fiber networks.

Finally, while the harm to both competition and fiber deployment from loss of access to dark fiber is abundantly evident, even the ILECs have indicated a lack of harm in the continuation of this unbundling obligation. As the NPRM points out, USTelecom described competitive LECs’ use of UNE Dark Fiber Transport as playing a “negligible role in the marketplace.”79 Indeed, while it sought forbearance from all requirements, USTelecom failed to even mention “dark fiber” in its forbearance petition at all. This would suggest the existence of this obligation is not posing any significant hindrance to ILEC transition to next generation networks. The only apparent benefit to the ILEC in letting these facilities remain unused is to thwart competition – an objective the Commission cannot support.

III. The Commission Should Maintain Policies that Promote the Deployment of New Networks, Technologies and Services It is overwhelmingly apparent that competitors are impaired without access to the remaining unbundled network element, such as DS0 Loops and dark fiber. Additionally, unbundling is called for to meet other objectives of the Act. Namely, unbundling promotes “the

78 Triennial Review Remand Order para. 135.

79 NPRM at para. 78.

21 deployment on a reasonable and timely basis of advanced telecommunications capability to all

Americans.”80 Consistent with the dictates of Section 706 of the Act, the Commission should also heed the urging of the Small Business Administration and consider unbundling in the context of the “impact on the small businesses, competition, and the deployment of next generation networks.”81 Access to unbundled network elements promote the deployment of fiber, by both competitors and incumbents, that is greatly needed for the realization of the next generation of advanced telecommunications capabilities and a competitive marketplace—that includes small business carriers—for the services these capabilities generate. Moreover, in addition to the reasons set forth in Sonic’s Opposition to the USTelecom Forbearance petition, the discussion below further elucidates why the Commission cannot find forbearance from applying the provisions of the Act or Commission rules is consistent with the public interest.82

Indeed, with the rising calls for more fiber deployment, and even for an all-fiber infrastructure, now is not the time to remove valuable tools or market players that are needed for competitive deployment of fiber networks—particularly FTTH—which, in turn, prompts ILEC deployment. Fiber builders using UNEs are deploying more fiber in the areas they operate than either the ILEC or cable, and they are providing faster speeds. While the Commission says it cannot accommodate every consumer service preference, American consumers deserves better than policies that leave a substantial portion of the urban residential population having no choice in broadband provider—with broadband being defined at below the trending speed—and some

80 47 U.S.C. § 1302.

81 SBA Letter at 3.

82 See NPRM para. 49 (Commission seeks comment on forbearance.)

22 having no provider at all. With the race to be the world leader in next generation networks and services—and the critical role fiber plays in achieving those goals—the Commission cannot afford to favor large incumbents LECs and cable companies (and their old networks) by disrupting policies that afford competitive FTTH builders some parity, which enables these competitors to exist and grow in the marketplace and drive the industry forward.

a. FTTH – A Network for the Future

As the Electronic Frontier Foundation recently stated: "The debate over the best infrastructure to deliver fixed last-mile broadband service in the 21st century is settled, and fiber is the undisputed winner. Fiber-to-the-home deployments are a better option for consumers today, and they are the only option that will allow expansive, efficient upgrades to America’s networks for a generation."83 Consumer demand for all-fiber broadband has skyrocketed and is expected to continue rising.84 This is not just a passing trend. For years experts have been pointing to FTTH connections as "the only technology with enough bandwidth to handle projected consumer demands during the next decade reliably and cost effectively. . . The FTTH broadband connection will spark the creation of products not yet dreamed of as they open new possibilities for data transmission rate."85 Current technologies do not come close.86

83 Bennett Cyphers, "The Case for Fiber to the Home, Today: Why Fiber is a Superior Medium for 21st Century Broadband' Electric Frontier Foundation, Oct. 16, 2019, available at: https://www.eff.org/wp/case-fiber-home-today-why-fiber-superior-medium-21st-century- broadband

84 See Letter from Lisa R. Youngers, Pres. & CEO, Fiber Broadband Ass’n, to Marlene H. Dortch, Secretary, FCC, WC Docket Nos. 19-126 and 10-90, at 2 (filed Jan. 21, 2020).

85 Tim Crosby, "How Fiber-to-the-home Broadband Works," HowStuffWorks.com, Mar. 28, 2008, available at: https://computer.howstuffworks.com/fiber-to-the-home1.htm

86 Id.

Moreover, dense fiber build out in residential communities is important to the deployment of next generation wireless networks—5G. Chairman Pai has explained, “5G infrastructure isn’t just about small cells; it’s also about backhaul. Densified networks will require much more fiber . . . For all the spectrum we devote to 5G won’t be put to good use if the physical networks to carry 5G traffic are never built.”87 Commissioner Carr likewise observed that “we’re pushing to this small cell world, but you need high-speed wired connections to all these small cells to carry that traffic. So while we talk about a 10- to 100-fold increase in the number of small cells, we also need many, many miles of new fiber and other high-speed connections to make the network function.”88 Through its deployment of fiber to residential communities, Sonic is building a fiber network that touches or passes all the poles, street lights, and rooftops in a neighborhood, where small cells can be installed.89

Unfortunately, with a mere twelve percent of households with FTTH, the United States ranks about 40th in the world in percentage of FTTH connections.90 While there is promise from increasing expansion, fiber build is still sorely lacking in this country. Competitive fiber builders not using UNEs tend to focus on services to businesses in dense and revenue-rich downtown

87 Remarks of Chairman Ajit Pai at the Mobile World Congress, Barcelona, Spain (Feb. 26, 2018), available at https://www.fcc.gov/document/chairman-pai-remarks-mobile-worldcongress.

88 The Future of 5G: A Fireside chat with FCC Commissioner Brendan Carr, The Brookings Institution, at 5 (June 26, 2018), transcript available at: https://www.brookings.edu/wpcontent/uploads/2018/07/gs_20180626_5g_carr_transcript.pdf.

89 See Letter of Julie A. Veach, Counsel to Sonic, to Marlene H. Dortch, FCC, WC Docket No. 18-141, at p. 2 (filed Nov. 29, 2019)(Sonic Nov. 29 Letter).

90 "Asian Countries Lead the FTTH-FTTB Global ranking," Chart, March 17, 2019, available at: https://www.fomsn.com/market-research/sobhana/asian-countries-lead-the-ftth-fttb-global- ranking/

24 financial districts or sparsely placed cell towers.91 According to a recent study by the Fiber

Broadband Association, it is projected to be five years from now before fiber will even pass half the homes in US; and, a decade to reach 90%.92 Competitive fiber builders play a significant in achieving this goal.93

b. Access to Unbundled Copper Loops and Dark Fiber are Instrumental to Competitive FTTH Deployment

As discussed more fully above, partially facilities-based fiber builders like Sonic are using unbundled network elements as envisioned by the Commission, as “a stepping stone to deployment of their own facilities.”94 In short, these carriers need UNEs as an initial means to serve residential customers as they are building up a subscriber-base. Once they have sufficiently established a customer base, they build their own fiber-based network and transition their existing customers in that region onto their network.

Competitive providers that use UNEs have deployed more fiber in the areas they operate than the incumbent LECs and cable companies.95 Sonic was the first provider in San Francisco

91 See Sonic Nov. 29 Letter, attachment at pages 2 and 3 (which shows Zayo’s dense fiber deployment in the business districts of San Francisco and Oakland versus the limited deployment in the residential Sunset District) and pages 4 and 5 (which shows Crown Castle’s San Francisco deployment in residential areas to being limited to specific, sparsely-placed cell towers.); See also, Letter of Karen Reidy, VP Regulatory, INCOMPAS, to Marlene H. Dortch, FCC, WC Docket No. 18-141 at 2 (filed Nov. 13, 2018).

92 See “New Study Finds All-Fiber Deployments to 90% of Households Achievable in Next Decade” Fiber Broadband Association, at 1, attached to Letter from Lisa R. Youngers, Pres. & CEO, Fiber Broadband Ass’n, to Marlene H. Dortch, Secretary, FCC, WC Docket Nos. 19-126 and 10-90 (filed Sept. 12, 2019)(Fiber Broadband Assoc. Sept. 12 Letter).

93 “All-Fiber Deployment Cost Study 2019” at 2, attached to Fiber Broadband Assoc. Sept. 12, Letter.

94 NPRM at para. 9.

95 Zarakas Declaration at 3.

25 to engage in widespread deployment of Gigabit fiber-to-the-home service.96 Dark fiber enabled

IdeaTek to bring FTTH to Andale Kansas, a small residential areas where the residents pleas for broadband were being ignored.97 In exchanges where neither AT&T or cable were deploying fiber, Socket began providing voice and broadband services: first, with DS1 loops and EELs; later, expanding service offerings via xDSL-capable loops; and then, deploying fiber-optic broadband facilities to serve residential and business customers.98 Socket has also replaced some segments of a fiber-optic transport ring that has UNE interoffice dark fiber in portions of it— used to provide the only residential broadband service in the area—with its own interoffice dark fiber over time, and will continue to do so as it expands.99 DFN provides voice and broadband services to residential communities until it has enough interest to deploy FTTH “to improve speeds and reliability.”100 This is just some of the multitude of examples revealed in the

USTelecom Forbearance proceeding of the important contributions to the deployment of FTTH from UNE-based competitors. Sonic now serves 41% of its customers over its own fiber network, with additional hundred thousand plus locations currently under construction, and

Sonic plans to continue expanding its reach—first with UNEs, then fiber deployment. The vision of the Act has worked and—unless disrupted by Commission action—will continue to work as intended.

96 Joint Opposition at 4.

97 Friesen Declaration at paras. 5 and 6.

98 Declaration of R. Matthew Kohly at para. 9, attached to Joint Opposition (“Kohly Declaration”).

99 Id. at para. 8.

100 Declaration of Todd Matthew Way at paras. 5-7.

c. Competition by UNE-Based Competitors Promotes ILEC Fiber Build When an ILEC deploys a fiber loop, pursuant to Commission rules it can retire the copper loop being overbuilt. The Commission has even streamlined this process for the ILECs. Once it has retired the cooper loop, the ILEC is no longer required to provide access to that copper loop on an unbundled basis. The existence of the unbundling rules, therefore, do not detract from

ILECs’ incentive to deploy fiber. On the contrary, these rules provide an incentive for an ILEC to deploy fiber in order to end its unbundling obligations and any associated costs. Commission action to eliminate these obligations, on the other hand, removes this important incentive for the

ILECs to deploy fiber. Indeed, this “natural forbearance” aspect of the existing unbundling rules gives both ILECs and CLECs an incentive to deploy fiber. ILECs should be prompted to deploy fiber so they can rid themselves of loop unbundling obligations. Competitive carriers must construct fiber networks as fast as is feasible so that they have a way to serve their customers when the ILEC retires the copper loop. While deployment from both is incremental (given the infeasibility of an all at once approach), the current unbundling policy creates a race to be the first to build.

ILECs also have incentive under the current policy to deploy next generation network in order to address the competitive pressure from partial facilities-based competitors that would otherwise not exist. As discussed above, unbundling laws provide competitors the means to serve customers in the short term, while building out their own network needed to serve customers in the long term. Consequently, both present and future competition from these carriers—and the incentive it provides the ILECs to build out their networks—would be lost without access to UNEs. As Professor Sappington explains, this concept—that long-term increase in competitor investment facilitated by access to UNEs, in turn, stimulates ILEC broadband investment—is supported by empirical research, in addition to being well documented

27 in the Forbearance Record.101 The Small Business Administration likewise found that the presence of competitors that use UNEs as a stepping stone to building out their own facilities

“appears to be providing competitive pressure for incumbents to likewise invest in new fiber deployment and network upgrades.”102 For example, the deployment of FTTH in San Francisco by Sonic, discussed above, was followed by AT&T’s own fiber upgrades.103 It is illogical to think, on the other hand, that the stamping out of competition would prompt ILECs to upgrade their networks to fiber.

In the case of dark fiber transport, the fiber is already deployed throughout the ILECs network. Consequently, there is no ILEC deployment incentive at issue. It is not logical to want to incent competitors to deploy fiber where there is excess fiber capacity unused and laying fallow. This is particular the case given the substantial costs and the great need for resources to deploy fiber elsewhere.

d. Use of DS0 Loops and Dark Fiber Foster Innovation and the Transition to More Advanced Technology

The use of DS0 Loops and dark fiber cultivates innovation as competitive carriers build out their networks. This stepping-stone approach assists in the transition of customers to the new

101 Sappington Declaration at 16 (“As CLECs expand their fiber networks to serve customers in these regions, ILECs often will feel pressured to follow suit. This fact has been identified in empirical research. This fact is also well-documented in the present proceeding.”), citing, as example of empirical research, Glenn Woroch, “Competition’s Effect on Investment in Digital Infrastructure,” University of California at Berkeley discussion paper, May, available at elsa.berkeley.edu/ ~woroch/investment%20 competition.pdf (noting in reference to investment in digital fiber rings that “CLEC entry leads to subsequent ILEC investment” and “incumbents and entrants match each others’ investments”, at title page).

102 SBA Letter at 3.

103 Jasper August 2018 Declaration at para. 13.

28 networks, by affording them the experience of newer technology services that generates the ever- increasing demand for the even more innovative services offerings over fiber networks. Both

DS0 Loops and Dark fiber allow a carrier to add its own technology and equipment to the facilities, thereby not binding competitors or their customers to the ILEC service offerings.

Sonic has, and continues, to invest heavily in next-generation broadband and telephony technologies.

In half the census blocks Sonic operates, as of the end of 2016, the ILEC was not even providing broadband at 25/3 Mbps to residential customers.104 Sonic, on the other hand, is using these same facilities and innovative technology, namely VDSL2 and pair bonding, to provide to residential customers up to 50/15 Mbps over single UNE DSO Loop and up to 100/3 Mbps over a bonded pair of UNE DS0 Loops.105 Additionally, Sonic’s recent upgrade, in a single day, to support 9-8-8 dialing for the national suicide prevention hotline included its UNE-based customers.106 In addition, Sonic’s UNE-based POTS voice customers were the first in the United

States to receive robocall blocking, at no charge.107 For business customers, Sonic uses e.SHDSL technology over four to twenty-four bonded copper pairs to deliver a symmetric service from 5 Mbps/5 Mbps to 100 Mbps/100 Mbps; uses VDSL2 and ADSL2+ technologies over four to twelve bonded copper pairs to deliver asymmetrical speeds from 50 Mbps/5 Mbps to

104 Zarakas Declaration at para. 12.

105 Jasper August 2018 Declaration at para. 4.

106 See Dane Jasper, “Sonic implements 9-8-8 National Suicide Hotline Prevention Hotline dialing,” Sonic, Dec. 13, 2019, available at: https://corp.sonic.net/ceo/sonic-implements-9-8-8- national-suicide-prevention-hotline-dialing/

107 Jasper August 2018 Declaration at para. 3.

400 Mbps/50 Mbps; and, provides Ethernet-Over-Copper.108 The upgrades in technology, while on UNEs, is putting consumers on the current path to 1 Gbps services for residential and 10

Gbps services for businesses that Sonic offers once the customer is on Sonic’s own fiber network.

Sonic is not alone. For example, GWI offers Ethernet Dedicated Internet Access,

Ethernet Wire Service, Ethernet Virtual Private Line, Ethernet Virtual LAN and Hosted PBX services over DS0 Loops, and customizes these services to meet the specific and unique requirements of its customers.109 Socket’s residential services include voice and DSL-based internet services with speeds up to 50 Mbps when provided over DS0 Loops, that then can lead to voice, video, and broadband services provided at speeds up to 1 Gbps over its own fiber network. Over both its own fiber network facilities and leased UNE facilities, Socket provides advanced services such as MPLS, dedicated data, packet-based services, and other telecommunications services such as hosted PBX voice service.110 Using DS0 Loops and UNE subloop, Gorge Networks offers broadband speeds to business and residential customers of up to

100 Mbps download and 20 Mbps upload.111 Using DS0 UNEs, Digital West offers voice and broadband speeds to residential customers of up to 30 Mbps download and 10 Mbps upload, and speeds to enterprise customers of up to 300 Mbps download and 300 Mbps upload depending on loop length.112

108 Id. at para. 5.

109 Declaration of Fletcher Kittredge at para. 11, attached to Joint Opposition.

110 Kohly Declaration at paras. 6, 11, and 35.

111 Declaration of Dan Bubb at para. 5, attached to Joint Opposition

112 Declaration of Jeff Buckingham at para. 6, attached to Joint Opposition.

Hence, the innovative technology competitors bring the via DSO Loop and dark fiber facilities does not inhibit, but rather sparks demand for “the deployment of, and transition to, next-generation networks and services that benefit American consumers and businesses.”

IV. Conclusion

For the foregoing reasons, the Commission should refrain from altering unbundling obligations, either by rule change or forbearance.

Respectfully Submitted,

/s/ Karen Reidy

Dane Jasper Karen Reidy Chief Executive Officer and Founder KTR Consulting, LLC Sonic Telecom, LLC P.O. Box 65444 2260 Apollo Way Washington, DC 20035 Sana Rosa, CA (301) 518-0400 (707) 522-1000 Counsel for Sonic Telecom. LLC

February 5, 2020