[Federal Register Volume 73, Number 70 (Thursday, April 10, 2008)]
[Rules and Regulations]
[Pages 19437-19438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-7635]


=======================================================================
-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[WC Docket No. 02-60, FCC 08-47]


Rural Health Care Support Mechanism

AGENCY: Federal Communications Commission.

ACTION: Final rule; petition for reconsideration.

-----------------------------------------------------------------------

SUMMARY: In this document, the Commission grants American Telemedicine 
Association's (ATA) Petition for Reconsideration in part and extends 
for three years the Commission's prior determination to grandfather 
those health care providers who were eligible under the Commission's 
definition of ``rural'' prior to the Second Report and Order.

DATES: Effective May 12, 2008.

FOR FURTHER INFORMATION CONTACT: Thomas Buckley, Senior Deputy Chief or 
Erica Myers, Attorney, Wireline Competition Bureau, Telecommunications 
Access Policy Division at (202) 418-7400 (voice), (202) 418-0484 (TTY).

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
on Reconsideration, in WC Docket No. 02-60, released February 14, 2008. 
The full text of this document is available for public inspection 
during regular business hours in the FCC Reference Center, Room CY-
A257, 445 12th Street, SW., Washington, DC 20554.

I. Introduction

    1. In this Order on Reconsideration, the Commission grants in part 
a Petition for Reconsideration by the American Telemedicine Association 
(ATA), seeking limited reconsideration of the Commission's Rural Health 
Care Support Mechanism Second Report and Order, 70 FR 6365, February 7, 
2005. Specifically, the Commission grants ATA's Petition for 
Reconsideration in part and extends for three years the Commission's 
prior determination to grandfather those health care providers who were 
eligible under the Commission's definition of ``rural'' prior to the 
Second Report and Order.

II. Discussion

    2. The Commission finds that it is in the public interest to grant 
ATA's Petition for Reconsideration in part and extends for three years 
the Commission's prior determination to grandfather those health care 
providers who were eligible to participate in the Commission's rural 
health care mechanism under the Commission's definition of ``rural'' 
prior to the Second Report and Order. Given the Commission's broad 
discretion to define the term ``rural,'' the Commission also finds that 
it is within its authority to continue providing funding to those 
health care entities that were previously eligible under the 
Commission's definition of that term. In particular, the Commission 
finds it is premature to discontinue support at this time to those 
health care providers who were eligible under the definition of 
``rural'' prior to the Second Report and Order. ATA and commenters 
proffered specific, uncontested evidence that the application of the 
new definition of rural in the Second Report and Order would result in 
specific harms to entities that previously were eligible for universal 
service rural health care support. For example, in its petition, ATA 
identifies multiple health care facilities that participate in 
telehealth communications networks in Nebraska and Montana that would 
be adversely affected by the loss in universal service rural health 
care funding if the new definition of rural were applied to their rural 
health care funding applications. This, in turn, would serve only to 
endanger the continued availability of telemedicine and telehealth 
services that these health care facilities provide. Indeed, the 
Coordinator for Telehealth Services at Avera St. Luke's Hospital in 
Aberdeen, South Dakota specifically commented that ``if we lose USAC 
support of our telecommunication infrastructure[,] the impact on our 
facility, our community [of several hundred people], our region and our 
patients would be devastating. Telehealth Services, including extensive 
telemedicine, would face significant cuts if not termination.'' 
Additionally, the discussion of the term rural in this order relates 
only to the existing rural health care mechanism.
    3. The Commission believes, as commenters suggest, that additional 
time is necessary for the Commission to evaluate the effect of the new 
definition on health care providers before they lose support as a 
result of the modified definition of rural adopted in the Second Report 
and Order became effective in March 2005. Only two funding years have 
concluded since the new definition went into effect. It would be 
premature for the Commission to remove previously eligible entities 
from the mechanism after this limited amount of time, particularly when 
(as described below) there remains sufficient available funding. 
Further, in November 2007, the Commission released the Universal 
Service Rural Health Care Pilot Program Selection Order, 22 FR 20360, 
November 19, 2007, which selected 69 organizations to participate in 
the Rural Health Care Pilot Program (Pilot Program), initiated by the 
Commission in September 2006, to facilitate the creation of a 
nationwide broadband network dedicated to health care, connecting 
public and private non-profit health care providers in rural and urban 
locations. A goal of the Pilot Program is to provide the Commission 
with a more complete and practical understanding of how to ensure the 
best use of the available RHC support mechanism funds to support a 
broadband, nationwide health care network (expressly including rural 
areas). Upon completion of the Pilot Program, among other things, the 
Commission intends to use the information it learns to fundamentally 
reexamine the entire universal service rural health care mechanism. In 
particular, the Commission intends to issue a report detailing the 
results of the Pilot Program and the status of the RHC support 
mechanism generally, and to recommend any changes necessary to improve 
the existing RHC program. In addition, the Commission intends to 
incorporate the information it gathers as part of the Pilot Program 
into the record

[[Page 19438]]

for any subsequent proceeding. The Commission expects that this post-
Pilot Program review would include an examination of the definition of 
rural. Further, because only $40.5 million was disbursed for the rural 
health care mechanism in 2006 and available Pilot Program support will 
be approximately $139 million per funding year, well below the $400 
million annual cap for the rural health care mechanism, health care 
providers eligible under the rural definition adopted in the Second 
Report and Order would not be disadvantaged by the Commission 
permitting this limited universe of additional entities to remain 
eligible to receive rural health care support.
    4. The Commission does not, however, as requested by ATA, 
grandfather indefinitely those health care providers who were eligible 
to participate in the Commission's rural health care mechanism under 
the Commission's definition of ``rural'' prior to the Second Report and 
Order. Instead, the Commission finds a three-year extension provides 
the appropriate timeframe to evaluate the effect of the changes in the 
definition of ``rural'' on health care providers and for the Commission 
to engage in the anticipated reexamination of the rural health care 
mechanism upon completion of the Pilot Program. Accordingly, health 
care providers that are no longer eligible to participate in the rural 
health care program due to the expiration of the three year transition 
period adopted in the Second Report and Order will remain eligible for 
support under the Rural Health Care Program for an additional three 
year period through the funding year ending on June 30, 2011.

III. Paperwork Reduction Act of 1995 Analysis

    5. This document does not contain proposed information 
collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. In addition, therefore, it does not contain any new 
or modified ``information collection burden for small business concerns 
with fewer than 25 employees,'' pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).
    6. The Commission will send a copy of this Order on Reconsideration 
in a report to be sent to Congress and the Government Accountability 
Office pursuant to the Congressional Review Act, see 5 U.S.C. 
801(a)(1)(A).

IV. Final Regulatory Flexibility Certification

    7. The Regulatory Flexibility Act of 1980, as amended (RFA), 
requires that a regulatory flexibility analysis be prepared for notice-
and-comment rule making proceedings, unless the agency certifies that 
``the rule will not, if promulgated, have a significant economic impact 
on a substantial number of small entities.'' The RFA generally defines 
the term ``small entity'' as having the same meaning as the terms 
``small business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small business concern'' under the Small Business 
Act. A ``small business concern'' is one which: (1) Is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the Small Business 
Administration (SBA).
    8. An initial regulatory flexibility analysis (IRFA) was 
incorporated in the Second Report and Order. The Commission sought 
written public comment on the proposals in the Second Report and Order, 
including comment on the IRFA. No comments were received to the Second 
Report and Order or IRFA that specifically raised the issue of the 
impact of the proposed rules on small entities.
    9. In this Order, the Commission now extends, for three years, the 
Commission's prior determination to grandfather those health care 
providers who were eligible under the Commission's definition of 
``rural'' prior to the Second Report and Order. This has no effect on 
any parties that do not currently participate in the rural health care 
support program. It does not create any additional burden on small 
entities. The Commission believes that this action imposes a minimal 
burden on the vast majority of entities, small and large, that are 
affected by this action.
    10. Therefore, the Commission certifies that the requirements of 
the order will not have a significant economic impact on a substantial 
number of small entities.
    11. In addition, the order and this final certification will be 
sent to the Chief Counsel for Advocacy of the SBA, and will be 
published in the Federal Register.

V. Ordering Clauses

    12. Pursuant to the authority contained in sections 1, 4(i), 4(j), 
201-205, 214, 254, and 403 of the Communications Act of 1934, as 
amended, 47 U.S.C. 151, 154(i), 154(j), 201-205, 214, 254, and 403, 
this Order on Reconsideration is adopted.
    13. It is further ordered that, pursuant to the authority contained 
in sections [1, 4(i), 4(j), 10, 201-205, 214, 254, and 403] of the 
Communications Act of 1934, as amended, [47 U.S.C. 151, 154(i), 154(j), 
201-205, 214, 254, and 403,] the Petition for Reconsideration filed by 
the American Telemedicine Association on March 7, 2005 is granted to 
the extent described herein.
    14. It is further ordered that Part 54 of the Commission's rules, 
47 CFR Part 54, is amended as set forth in Final Rules attached hereto, 
effective May 12, 2008 of this Order on Reconsideration.
    15. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Order on Reconsideration, to the Chief Counsel for 
Advocacy of the Small Business Administration.

List of Subjects in 47 CFR Part 54

    Communications commons carriers, Reporting and recordkeeping 
requirements, Telecommunications.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.

Final Rules

0
For the reasons discussed in the preamble, the Federal Communications 
Commission amends 47 CFR part 54 as follows:

PART 54--UNIVERSAL SERVICE

0
1. The authority citation for part 54 continues to read as follows:

    Authority: 47 U.S.C. 1, 4(i), 201, 205, 214, and 254 unless 
otherwise noted.


0
2. Amend Sec.  54.601 by revising paragraph (a)(3)(i) to read as 
follows:


Sec.  54.601  Eligibility.

    (a) * * *
    (3) * * *
    (i) Any health care provider that was located in a rural area under 
the definition used by the Commission prior to July 1, 2005, and that 
had received a funding commitment from USAC since 1998, remain eligible 
for support under this subpart though the funding year ending on June 
30, 2011.
* * * * *
 [FR Doc. E8-7635 Filed 4-9-08; 8:45 am]
BILLING CODE 6712-01-P