[Federal Register Volume 63, Number 2 (Monday, January 5, 1998)]
[Rules and Regulations]
[Pages 162-164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-138]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[FCC 97-419]
Procedure for Designation of Eligible Telecommunications Carriers
Pursuant to Section 214(e)(6) of the Communications Act
AGENCY: Federal Communications Commission.
ACTION: Rules of agency procedure and practice.
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SUMMARY: This action establishes the procedures the Commission will use
in implementing Public Law 105-125 (enacted December 1, 1997), which
added subsection (e)(6) to section 214(e) of the Communications Act of
1934, as amended (the Act). New section 214(e)(6) provides for the
designation of eligible telecommunications carriers by the Federal
Communications Commission (Commission) in certain limited circumstances
for common carriers that are not subject to the jurisdiction of a state
commission.
DATES: Effective January 5, 1998.
ADDRESSES: One original and five copies of all petitions and comments
must be sent to Magalie Roman Salas, Secretary, Federal Communications
Commission, 1919 M Street, N.W., Washington, D.C. 20554. Three copies
also should be sent to Sheryl Todd, Universal Service Branch,
Accounting and Audits Division, Common Carrier Bureau, 2100 M Street,
N.W., 8th Floor, Washington, D.C. 20554. One copy must be sent to the
Commission's contractor, International Transcription Service, 1231 20th
Street, N.W., Washington, D.C. 20037, (202) 857-3800. 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 234, 1919 M Street,
N.W., Washington, DC 20554. See the SUPPLEMENTARY INFORMATION section
for electronic filing addresses.
FOR FURTHER INFORMATION CONTACT: Valerie Yates, Legal Counsel, Common
Carrier Bureau, (202) 418-1500, or Cheryl Leanza, Common Carrier
Bureau, (202) 418-7400. For additional information concerning the
information collections contained in this Public Notice contact Judy
Boley at 202-418-0214, or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This information collection has been
approved by OMB 3060-0810, expiration date of May 31, 1998. This Public
Notice establishes the procedures the Commission will use in
implementing Public Law 105-125 (enacted December 1, 1997), which added
subsection (e)(6) to section 214(e) of the Communications Act of 1934,
as amended (the Act). Public Law 105-125, 111 Stat. 2540 (1997).
Section 214(e)(1) of the Act provides that common carriers designated
as ``eligible telecommunications carriers'' are eligible to receive
universal service support in accordance with section 254 of the Act. 47
U.S.C. secs. 214(e)(1) and 254; see Federal-State Joint Board on
Universal Service, CC Docket No. 96-45, Report and Order, 62 FR 32862,
June 17, 1997 (Universal Service Order). Section 214(e)(2) of the Act
provides that state commissions shall designate eligible
telecommunications carriers. See 47 U.S.C. sec. 214(e)(2). For purposes
of the designation requirement, ``state commission'' is defined in
section 3(47) of the Act as a ``commission, board, or official (by
whatever name designated) which under the laws of any State has
regulatory jurisdiction with respect to intrastate operations of
carriers.'' 47 U.S.C. sec. 3(47). Until its recent amendment, section
214(e) did not address how common carriers not subject to the
jurisdiction of a state commission would be designated. New section
214(e)(6) provides for the designation of eligible telecommunications
carriers by the Federal Communications Commission (Commission) in
certain limited circumstances for common carriers that are not subject
to the jurisdiction of a state commission. See 143 Cong. Rec. S12,568
(daily ed. Nov. 13, 1997) (stating that the amendment was intended to
correct an ``oversight'' in the statute regarding certain carriers,
such as tribally owned common carriers, that may fall outside the
jurisdiction of a state commission and that the amendment ``does
nothing to alter the existing jurisdiction that state commissions have
over local exchange carriers or providers of commercial mobile radio
services.''). We set forth herein the procedures that carriers must use
in requesting such designation from the Commission. Any carrier that is
able to be or has already been designated as an eligible
telecommunications carrier by a state commission is not required to
receive such designation from the Commission. We delegate to the Chief,
Common Carrier Bureau, the authority to designate carriers as eligible
telecommunications carriers, pursuant to section 214(e)(6).
Carriers seeking designation from the Commission pursuant to
section 214(e)(6) must demonstrate that they fulfill the requirements
of section 214(e)(1). Accordingly, carriers seeking designation from
the Commission are instructed to file a petition that sets forth the
following information:
1. A certification and brief statement of supporting facts
demonstrating that the petitioner is ``not subject to the
jurisdiction of a state commission''.
2. A certification that the petitioner provides all services
designated for support by the Commission pursuant to section 254(c).
To meet the requirements of section 214(e)(1) of the Act, a carrier
must offer all of the services designated for support by the
Commission pursuant to section 254(c). 47 U.S.C. sec. 214(e)(1)(A).
The Commission has designated the following services for support:
single-party service; voice grade access to the public switched
network; Dual Tone Multifrequency (DTMF) signalling or its
functional equivalent; access to emergency services including, in
some circumstances, access to 911 and Enhanced 911 (E911); access to
operator services; access to interexchange service; access to
directory assistance; and toll limitation services for qualifying
low-income consumers. See Universal Service Order, 62 FR 32862, June
17, 1997.
a. If the petitioner seeks an extension of time in order to
implement the Commission's requirements to offer single-party
service, access to E911, or toll-limitation services for
[[Page 163]]
Lifeline consumers, the petitioner must demonstrate that it has met
the criteria set forth by the Commission to receive such an
extension of time. See Universal Service Order, 62 FR 32862, June
17, 1997.
b. If the petitioner seeks a waiver of the prohibition against
disconnecting Lifeline service for non-payment of toll charges, the
petitioner must demonstrate that it meets the requirements of
Sec. 54.401(b)(1) of the Commission's rules; Section 54.401(b)(1) of
the Commission's rules provides that a carrier may receive a waiver
of the no-disconnect rule if it demonstrates that: (1) it would
incur substantial costs in complying with this requirement; (2) it
offers toll limitation to its qualifying low-income consumers
without charge; and (3) telephone subscribership among low-income
consumers in the carrier's service area is greater than or equal to
the national subscribership rate for low-income consumers. 47 CFR
54.401(b)(i)-(iii).
3. A certification that the petitioner offers the supported
services ``either using its own facilities or a combination of its
own facilities and resale of another carrier's services''. 47 U.S.C.
sec. 214(e)(1)(A).
4. A description of how the petitioner ``advertise[s] the
availability of the [supported] services and the charges therefor
using media of general distribution''; 47 U.S.C. sec. 214(e)(1)(B).
5. If the petitioner meets the definition of a ``rural telephone
company'' pursuant to section 3(37) of the Act, the petitioner must
identify its study area. See 47 U.S.C. sec. 214(e)(5) (defining the
service area of rural telephone companies as ``such company's `study
area' . . . ''); 47 U.S.C. sec. 153(37). If the petitioner is not a
rural telephone company, the petitioner must include a detailed
description of the geographic service area that it requests the
Commission designate.
In addition, in order to be eligible for any new, modified or
renewed instrument of authorization from the Commission, including
authorizations issued pursuant to section 214 of the Act, all
petitioners must certify that neither the petitioner nor any party to
the application is subject to a denial of federal benefits, including
Commission benefits, pursuant to section 5301 of the Anti-Drug Abuse
Act of 1988. 47 CFR 1.2002(a); 21 U.S.C. sec. 862. We note that this
provision does not apply to, inter alia, ``Federal, State, or local
governmental entities or subdivisions thereof.'' 47 CFR 1.2002(c). This
certification must also include the names of individuals specified by
section 1.2002(b) of the Commission's rules. Section 1.2002(b) provides
that a certification pursuant to that section shall include: ``(1) If
the applicant is an individual, that individual; (2) If the applicant
is a corporation or unincorporated association, all officers,
directors, or persons holding 5 percent or more of the outstanding
stock or shares (voting and/or non-voting) of the petitioner; and (3)
If the applicant is a partnership, all non-limited partners and any
limited partners holding a 5 percent or more interest in the
partnership.'' 47 CFR 1.2002(b).
Pursuant to section 254(e), after the date on which the
Commission's regulations implementing section 254 take effect, ``only
an eligible telecommunications carrier designated under section 214(e)
shall be eligible to receive specific Federal universal service
support.'' The Commission's regulations implementing section 254 will
take effect January 1, 1998. Accordingly, starting January 1, 1998,
carriers must be designated as eligible telecommunications carriers to
receive support under federal universal service support mechanisms.
Under certain circumstances, a petitioner that is designated as an
eligible telecommunications carrier by the Commission after January 1,
1998, may seek universal service support retroactive to January 1,
1998. Such a petitioner must: (1) Include a request for retroactive
support in its petition; (2) demonstrate that, as of January 1, 1998,
it met the requirements set forth in section 214(e)(1); and (3) set
forth the steps it has taken to receive designation as an eligible
telecommunications carrier in a timely manner. Carriers that do not
seek retroactive support, or do not qualify for retroactive support
under the criteria set forth in this paragraph, shall be eligible to
receive compensation after the date of designation by the Commission.
These procedures will be effective upon publication in the Federal
Register. We conclude that compliance with the notice and public
comment provisions of the Administrative Procedure Act (APA) is not
required with respect to the procedures adopted in this Public Notice
because this Public Notice establishes rules of agency procedure and
practice. 5 U.S.C. sec. 553(b)(3)(A) (stating that notice and comment
requirements are inapplicable to rules for ``agency organization,
procedure, or practice''). To the extent that these rules may be deemed
to be substantive rather than procedural, we find that good cause
exists to adopt these requirements without notice and comment because
compliance with the notice and public comment would be impracticable
and contrary to the public interest. 5 U.S.C. sec. 553(b)(3)(B)
(stating that notice and comment requirements are inapplicable ``when
the agency for good cause finds * * * that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest''). As noted above, section 214(e)(6) became law on December
1, 1997, only one month before our rules implementing section 254 take
effect. Our prompt action establishing these procedures is designed to
ensure that eligible telecommunications carriers receive universal
service support without interruption (or with minimal interruption).
See 47 U.S.C. sec. 254(e). This is consistent with Congress' desire to
correct the ``oversight'' in section 214(e) and to provide universal
service support for those carriers not subject to the jurisdiction of a
state commission. This good cause finding also supports making these
rules effective upon publication in the Federal Register. 5 U.S.C. sec.
553(d).
Pleading Cycle. Upon receipt of a petition filed pursuant to
section 214(e)(6), the Commission will issue a public notice
establishing a pleading cycle and assigning a Bureau file number to the
petition. Oppositions or comments regarding the petition will be due
approximately 10 days after the Commission releases the public notice.
Reply comments will be due approximately 7 days after comments are due.
Filing Requirements. All filings should reference: Petition for
Designation as an Eligible Telecommunications Carrier Pursuant to
Section 214(e)(6) of the Communications Act, FCC 97-419. Comments and
reply comments should reference the name of the petitioner filing a
petition for designation and the Bureau file number of the petition.
All interested parties should include the name of the filing party and
the date of the filing on each page of their petitions and comments.
Parties should include a table of contents in all documents regardless
of length and should indicate whether they are filing an electronic
copy of a submission via the Internet or via diskette. Pleadings must
comply with Commission rules. See, e.g., 47 CFR 1.49, 1.415, 1.419.
Parties may also file informal comments or an exact copy of a
petition or formal comments electronically via the Internet at: . Only one
copy of an electronic submission must be submitted. A party must note
whether an electronic submission is an exact copy of a petition or
formal comments on the subject line and should note in its paper
submission that an electronic copy of its comments is being submitted
via the Internet. A commenter also must include its full name and
Postal Service mailing address in its submission. Parties not
submitting an exact copy of their formal comments via the Internet
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are also asked to submit their petitions and comments on diskette.
Parties submitting diskettes should submit them to Sheryl Todd of the
Universal Service Branch, 2100 M Street, N.W., Room 8606, Washington,
D.C. 20554. Such a submission should be on a 3.5 inch diskette
formatted in an IBM compatible format using WordPerfect 5.1 for Windows
or compatible software. The diskette should be accompanied by a cover
letter and should be submitted in ``read only'' mode. The diskette
should be clearly labelled with the party's name, proceeding, type of
pleading (petition or comment), date of submission, and the name of the
electronic file on the diskette. Each diskette should contain only one
party's pleadings, preferably in a single electronic file. Electronic
submissions are in addition to and not a substitute for the formal
filing requirements addressed above.
Ex parte contact. For the purposes of ex parte contact, each
petition submitted pursuant to section 214(e)(6) will be treated as
initiating a permit-but-disclose proceeding under the Commission's
rules. See 47 CFR 1.1206.
Paperwork Reduction Act Requirement. In the Report and Order on
Universal Service (released May 8, 1997), the Commission adopted rules
that are designed to implement the universal service provision of
section 254 of the Act. In accord with the Paperwork Reduction Act, we
previously received OMB approval for the information collections that
carriers must comply with in order to apply to their state commissions
for designation as carriers eligible to receive universal support
pursuant to section 254. Section 214(e) directs the Commission to
designate telecommunications carriers that meet specified requirements
as eligible in situations where the telecommunications carrier is not
subject to the jurisdiction of a state commission. To implement this
new statute, we will require telecommunications carriers that seek to
be classified as eligible by the Commission and are not subject to the
jurisdiction of a state commission to send to the Commission
information demonstrating that they meet the eligibility criteria set
forth in the Telecommunications Act of 1996 and described in the
Commission's rules. This information must be submitted according to the
procedural requirements described above. These reporting requirements
are necessary to verify that particular carriers are eligible to
receive universal service support.
We have estimated that each response to this collection of
information will take, on average, 58 hours for respondants filing
petitions and 20 hours for respondents filing written comments. Our
estimate includes the time to comply with the statutory requirements,
read this Public Notice, review existing records, gather and maintain
required data, and complete and review the response. If you have any
comments on this estimate, or on how we can improve the collection and
reduce the burden it causes you, please write the Federal
Communications Commission, AMD-PERM, Washington, D.C. 20554, Paperwork
Reduction Project (3060-0793). We will also accept your comments on the
burden estimate via the Internet if you send them to [email protected].
Please Do Not Send petitions requesting Commission designation as an
eligible telecommunications carrier to this e-mail address.
You are not required to respond to a collection of information
sponsored by the Federal government, and the government may not conduct
or sponsor this collection, unless it displays a currently valid OMB
control number or if we fail to provide you with this notice. This
collection has been assigned an OMB control number of 3060-0810, which
expires on May 31, 1998.
This notice is required by the Privacy Act of 1974, Public Law 93-
579, December 31, 1974, 5 U.S.C. section 552a(e)(3) and the Paperwork
Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C.
3507.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-138 Filed 1-2-98; 8:45 am]
BILLING CODE 6712-01-P