**Before the**

**Federal Communications Commission**

**Washington, DC 20554**

In the Matter of )

)

Federal-State Joint Board on )

Universal Service )

) CC Docket No. 96-45

West Virginia Public Service )

Commission )

)

Request for Waiver of State )

Certification Requirements for )

High-Cost Universal Service Support )

For Non-Rural Carriers )

**order**

**Adopted: March 9, 2001 Released: March 13, 2001**

By the Commission:

1.  In this Order, we grant the Petition of the West Virginia Public
    Service Commission (West Virginia Commission) for a waiver of the
    calendar year 2001 state certification requirements for high-cost
    universal service support in areas served by non-rural carriers.[^1]
    This waiver will permit non-rural carriers in West Virginia to
    receive federal high-cost universal service support for calendar
    year 2001, including the first quarter of calendar year 2001. We
    believe that this waiver is in the public interest and is necessary
    to ensure that consumers in high-cost areas served by non-rural
    carriers in West Virginia are not harmed by the West Virginia
    Commission's failure to timely file the required certification with
    the Commission prior to October 1, 2000.

    **I. BACKGROUND**

2.  In its *Ninth Report and Order* on universal service, the
    Commission, building upon the framework established in its
    *Universal Service Order* and *Seventh Report and Order,* set forth
    a federal high-cost support mechanism to enable non-rural carriers'
    rates for services supported by universal service to remain
    affordable and reasonably comparable in all regions of the
    nation.[^2] Among other things, the federal high-cost universal
    service support mechanism established in the *Ninth Report and
    Order* set forth specific certification requirements with which
    states wishing to receive federal universal service high-cost
    support for all non-rural carriers within their territory must
    comply.[^3] These state certifications must state that all federal
    high-cost support received by non-rural carriers in the state will
    be used in a manner consistent with section 254(e) of the
    Communications Act.[^4] The Commission concluded that, absent the
    timely filing of such certification by their state commission,
    non-rural carriers in a state would not receive federal high-cost
    universal service support for the applicable certification
    period.[^5]

3.  The Commission set forth specific certification periods in its
    rules. Under section 54.313(c)(2)(i) of the Commission's rules,
    states were required to file their certifications by October 1, 2000
    in order for non-rural carriers serving high-cost areas in the state
    to receive support for the first, second, third, and fourth quarters
    of calendar year 2001.[^6] If a state does not file before October
    1, 2000, but files its certification before January 1, 2001,
    non-rural carriers in that state will receive support for only the
    second, third, and fourth quarters of calendar year 2001.[^7]

4.  On October 23, 2000, the West Virginia Commission submitted its
    section 54.313 certification on behalf of Verizon West Virginia, the
    only non-rural carrier in the state of West Virginia.[^8] In its
    certification letter, the West Virginia Commission recognized that
    its filing was untimely, and requested that the Commission
    nevertheless accept its certification for funding for the entire
    calendar year of 2001.[^9] The West Virginia Commission stated that
    its failure to meet the October 23, 2001 deadline was "inadvertent"
    and resulted from the fact that universal service funding
    requirements for the year 2001 in West Virginia had not been
    calculated as of October 1, 2000.[^10] The West Virginia Commission
    subsequently filed a separate petition requesting that the
    Commission consider the West Virginia Commission's October 23, 2000
    certification letter out-of-time and allow non-rural carriers in
    West Virginia to receive federal high-cost universal service funding
    for the entire calendar year 2001.[^11]

    **II. DISCUSSION**

5.  As an initial matter, we note that the West Virginia Commission's
    October 23, 2000 certification does, under the Commission's rules,
    ensure that non-rural carriers in West Virginia will be able to
    receive high-cost support for the second, third, and fourth quarters
    of calendar year 2001.[^12] At issue here is whether or not the West
    Virginia Commission is entitled to a waiver of the October 1, 2000
    filing deadline to ensure that non-rural carriers serving in West
    Virginia will also receive high-cost support for the first quarter
    of calendar year 2001.

6.  The Commission may waive any provision of its rules on its own
    motion and for good cause shown.[^13] A rule may be waived where the
    particular facts make strict compliance inconsistent with the public
    interest.[^14] In addition, the Commission may take into account
    considerations of hardship, equity, or more effective implementation
    of overall policy on an individual basis.[^15] In sum, waiver is
    appropriate if special circumstances warrant a deviation from the
    general rule, and such deviation would better serve the public
    interest than strict adherence to the general rule.[^16]

7.  We conclude that special circumstances exist to justify a waiver of
    section 54.313(c)(2)(i) of our rules as requested by the West
    Virginia Commission. Specifically, we find that the potential harm
    that would be suffered by customers of non-rural carriers in West
    Virginia, as a consequence of the West Virginia Commission's failure
    to timely file its section 54.313 certification before the October
    1, 2000 deadline, justifies a waiver in this instance. We note that
    the potential harm caused by loss of one quarter of annual federal
    high-cost support is particularly egregious in a state such as West
    Virginia, which historically has service costs in excess of the
    national average.[^17] We believe, therefore, that it would be
    consistent with the public interest and the intent of section 254 of
    the Communications Act to grant the Petition and thus provide
    federal high-cost support to non-rural carriers in West Virginia for
    the first quarter of 2001.

8.  While we are, as a general matter, reluctant to grant waivers of
    Commission rules, especially waivers of the section 54.313
    certification requirements, we note that the West Virginia
    Commission has made the necessary certification, albeit untimely. We
    thus have no reason to believe that non-rural carriers in the state
    of West Virginia will use federal high-cost support for the first
    quarter of 2001 in a manner contrary to the direction of section 254
    of the Act. Although we are granting the waiver of section 54.313 of
    our rules and conclude in this Order that non-rural carriers serving
    in West Virginia shall be allowed to receive federal high-cost
    universal service support for the entire calendar year of 2001, we
    caution the West Virginia Commission that, in subsequent program
    years, it should take steps to ensure that all applicable
    certifications necessary to secure federal high-cost support are
    filed with the Commission before the expiration of the applicable
    filing deadline.

    **III. ORDERING CLAUSE**

9.  Accordingly, IT IS ORDERED, pursuant to sections 1-4, and 254 of the
    Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154 and
    254, and section 1.3 of the Commission's rules, 47 U.S.C. § 1.3,
    that the Petition for waiver of section 54.313(c)(2)(i) of the
    Commission's rules, 47 C.F.R. § 54.313(c)(2)(i), filed by the West
    Virginia Public Service Commission on January 29, 2001, IS GRANTED
    to the extent provided herein.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Magalie Roman Salas
>
> Secretary

[^1]: Public Service Commission of West Virginia's Request for Leave to
    File its State Certification of Federal Universal Service Support
    Eligibility Out-of-Time, CC Docket No. 96-45, filed January 29, 2001
    (Petition).

[^2]: *Federal-State Joint Board on Universal Service*, Ninth Report and
    Order and Eighteenth Order on Reconsideration, CC Docket No. 96-45,
    14 FCC Rcd 20432 (1999) (*Ninth Report and Order*); *Federal-State
    Joint Board on Universal Service*, Report and Order, CC Docket No.
    96-45, 12 FCC Rcd 8766 (1997) (*Universal Service Order*);
    *Federal-State Joint Board on Universal Service, Access Charge
    Reform*, CC Docket Nos. 96-45, 96-262, Seventh Report and Order and
    Thirteenth Order on Reconsideration in CC Docket No. 96-45, Fourth
    Report and Order in CC Docket No. 96-262, and Further Notice of
    Proposed Rulemaking, 14 FCC Record 8077 (1999) (subsequent history
    ommited) (*Seventh Report and Order*).

[^3]: *See Ninth Report and Order*, 14 FCC Rcd at 20481-88, paras.
    93-110. *See also* 47 C.F.R. § 54.313 *et seq.* This requirement is
    hereafter referred to as "section 54.313 certification."

[^4]: *Ninth Report and Order,* 14 FCC Rcd at 20483-84, para. 97. 47
    U.S.C. § 254(e) requires that carriers use high-cost support only
    for the "provision, maintenance, and upgrading of facilities and
    services for which the support is intended."

[^5]: *Ninth Report and Order*, 14 FCC Rcd at 20484, para. 98.

[^6]: 47 C.F.R. § 54.313(c)(2)(i).

[^7]: *See* 47 C.F.R. § 54.313(c)(2)(ii).

[^8]: Letter of Charlotte R. Lane, Chairman, West Virginia Public
    Service Commission, to Magalie Roman Salas, Secretary, FCC, filed
    October 23, 2000.

[^9]: *Id.* at 2.

[^10]: *Id.* at 2.

[^11]: Petition at 2.

[^12]: States that file their certifications prior to January 1, 2001
    are entitled to receive federal high-cost support for non-rural
    carriers for the second, third and fourth quarters of calendar year
    2001. *See* 47 C.F.R. § 54.313(c)(2)(ii).

[^13]: 47 C.F.R. §1.3.

[^14]: *Northeast Cellular*, 897 F.2d at 1166.

[^15]: *WAIT Radio*, 418 F.2d at 1157.

[^16]: *Northeast Cellular*, 897 F.2d at 1166.

[^17]: According to the most recent publicly-available Bureau data, the
    average per-line cost per month in West Virginia was \$35.69, well
    in excess of the national average per-line cost per month of
    \$23.35. *See* Common Carrier Bureau, Wirecenter Support
    Spreadsheet, Revised Model Results (January 20, 2000), at
    www.fcc.gov/ccb/apd/hcpm.