**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | * | CC Docket No. 96-45          |
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**DECLARATORY RULING**

**Adopted:** July 11, 2000 **Released:** August 10, 2000

By the Commission: Commissioner Furchtgott-Roth dissenting and issuing a
statement.

# Introduction

1.  In this Declaratory Ruling, we provide guidance to remove
    uncertainty and terminate controversy regarding whether section
    214(e)(1) of the Communications Act of 1934, as amended, (the Act)
    requires a common carrier to provide supported services throughout a
    service area prior to being designated an eligible
    telecommunications carrier (ETC) that may receive federal universal
    service support.[^1] We believe the guidance provided in this
    Declaratory Ruling is necessary to remove substantial uncertainty
    regarding the interpretation of section 214(e)(1) in pending state
    commission and judicial proceedings.[^2] We believe the guidance
    provided in this Declaratory Ruling will assist state commissions in
    acting expeditiously to fulfill their obligations under section
    214(e) to designate competitive carriers as eligible for federal
    universal service support.

2.  We believe that interpreting section 214(e)(1) to require the
    provision of service throughout the service area prior to ETC
    designation prohibits or has the effect of prohibiting the ability
    of competitive carriers to provide telecommunications service, in
    violation of section 253(a) of the Act. We find that such an
    interpretation of section 214(e)(1) is not competitively neutral,
    consistent with section 254, and necessary to preserve and advance
    universal service, and thus does not fall within the authority
    reserved to the states in section 253(b). In addition, we find that
    such a requirement conflicts with section 214(e) and stands as an
    obstacle to the accomplishment and execution of the full purpose and
    objectives of Congress as set forth in section 254. Consequently,
    under both the authority of section 253(d) and traditional federal
    preemption authority, we find that to require the provision of
    service throughout the service area prior to designation effectively
    precludes designation of new entrants as ETCs in violation of the
    intent of Congress. We believe that the guidance provided in this
    Declaratory Ruling will further the goals of the Act by ensuring
    that new entrants have a fair opportunity to provide service to
    consumers living in high-cost areas.

3.  We note that Western Wireless has raised similar issues in its
    petition for preemption of a decision of the South Dakota Public
    Utilities Commission (South Dakota PUC).[^3] In its petition,
    Western Wireless asks the Commission to preempt, under section 253
    and as inconsistent with the Act, the South Dakota PUC's requirement
    that, pursuant to section 214(e), a carrier may not receive
    designation as an ETC unless it is providing service throughout the
    service area. In light of the recent South Dakota Circuit Court
    decision overturning the South Dakota PUC's decision and granting
    Western Wireless ETC status in each exchange served by non-rural
    telephone companies in South Dakota, we believe that it is
    unnecessary to act on the Western Wireless petition at this
    time.[^4] In doing so, we note that section 253(d) requires the
    Commission to preempt state action only "to the extent *necessary*
    to correct such violation or inconsistency."[^5] We acknowledge,
    however, that the *South Dakota Circuit Court Order* has been
    automatically stayed with the filing of the South Dakota PUC's
    notice of appeal to the Supreme Court of South Dakota.[^6] We
    therefore place Western Wireless' petition for preemption of the
    South Dakota PUC Order in abeyance pending final resolution of this
    appeal.[^7] The Commission will make a determination at that time as
    to whether it is necessary to proceed consistent with the guidance
    provided in this Declaratory Ruling.

# BACKGROUND

## The Act 

4.  Section 254(e) provides that "only an eligible telecommunications
    carrier designated under section 214(e) shall be eligible to receive
    specific Federal universal service support."[^8] Section 214(e)(2)
    provides that "\[a\] State commission shall upon its own motion or
    upon request designate a common carrier that meets the requirements
    of \[subsection 214(e)(1)\] as an eligible telecommunications
    carrier for a service area designated by the State commission."[^9]

5.  Section 214(e)(1) provides that:

    A common carrier designated as an eligible telecommunications
    carrier under \[subsections 214(e)(2), (3), or (6)\] shall be
    eligible to receive universal service support in accordance with
    section 254 and shall, throughout the service area for which the
    designation is received --

    \(A\) offer the services that are supported by Federal universal
    service support mechanisms under section 254(c), either using its
    own facilities or a combination of its own facilities and resale of
    another carrier's services (including the services offered by
    another eligible telecommunications carrier); and

    \(B\) advertise the availability of such services and the charges
    therefor using media of general distribution.[^10]

6.  Section 253 establishes the legal framework for Commission
    preemption of a state statute, regulation, or legal requirement that
    prohibits or has the effect of prohibiting the competitive provision
    of telecommunications service. The Commission has interpreted and
    applied this standard on a number of occasions.[^11] First, the
    Commission must determine whether the challenged law, regulation, or
    requirement violates section 253(a). Specifically, the Commission
    examines whether the state provision "prohibit\[s\] or ha\[s\] the
    effect of prohibiting the ability of any entity to provide any
    interstate or intrastate telecommunications service."[^12]

7.  If the Commission finds that the state requirement violates section
    253(a), then it will determine whether it is nevertheless
    permissible under section 253(b). The criteria set forth in section
    253(b) preserve the states' ability to impose, on a competitively
    neutral basis and consistent with section 254, requirements
    necessary to preserve and advance universal service.[^13] The
    Commission has held that a state program must meet all three
    criteria -- it must be "competitively neutral," "consistent with
    Section 254," and "necessary to preserve and advance universal
    service" -- to fall within the "safe harbor" of section 253(b).[^14]
    The Commission has preempted state regulations for failure to
    satisfy even one of the three criteria.[^15] If a requirement
    otherwise impermissible under section 253(a) does not satisfy
    section 253(b), the Commission must preempt the enforcement of the
    requirement in accordance with section 253(d).[^16]

## Federal Preemption Authority

8.  The Supremacy Clause of the Constitution empowers Congress to
    preempt state or local laws or regulations under certain specified
    conditions.[^17] As explained by the United States Supreme Court:

    Pre-emption occurs when Congress, in enacting a federal statute,
    expresses a clear intent to preempt state law, when there is
    outright or actual conflict between federal and state law, where
    compliance with both federal and state law is in effect physically
    impossible, where there is implicit in federal law a barrier to
    state regulation, where Congress has legislated comprehensively,
    thus occupying an entire field of regulation and leaving no room for
    the States to supplement federal law, or where the state law stands
    as an obstacle to the accomplishment and execution of the full
    objectives of Congress.[^18]

    It is well established that "\[p\]re-emption may result not only
    from action taken by Congress itself; a federal agency acting within
    the scope of its congressionally delegated authority may preempt
    state regulations."[^19]

# Discussion

## Section 253(a) Analysis

### Background 

9.  In order to determine whether a section 253(a) violation has
    occurred, we must consider whether the cited statute, regulation, or
    legal requirement "may prohibit or have the effect of prohibiting
    the ability of any entity to provide any interstate or intrastate
    telecommunications service."[^20] We therefore examine whether the
    requirement that a carrier must be providing service throughout the
    service area prior to designation as an ETC "may prohibit or have
    the effect of prohibiting" carriers that are not incumbent LECs from
    providing telecommunications service.

### Discussion

10. We find that requiring a new entrant to provide service throughout a
    service area prior to designation as an ETC has the effect of
    prohibiting the ability of the new entrant to provide intrastate or
    interstate telecommunications service, in violation of section
    253(a).

11. [Legal Requirement]{.underline}. As an initial matter, we find that
    the requirement that a new entrant must provide service throughout
    its service area as a prerequisite to designation as an ETC under
    section 214(e) constitutes a state "legal requirement" under section
    253(a). We have previously concluded that Congress intended the
    phrase, "\[s\]tate or local statute or regulation, or other State or
    local requirement" in section 253(a), to be interpreted
    broadly.[^21] The resolution of a carrier's request for designation
    as an ETC by a state commission is legally binding on the carrier
    and may prohibit the carrier from receiving federal universal
    service support. We find therefore that any such requirement
    constitutes a "legal requirement" under section 253(a).

12. [Prohibiting the Provision of Telecommunications
    Service]{.underline}. We find that an interpretation of section
    214(e) requiring carriers to provide the supported services
    throughout the service area prior to designation as an ETC has the
    effect of prohibiting the ability of prospective entrants from
    providing telecommunications service.[^22] A new entrant faces a
    substantial barrier to entry if the incumbent local exchange carrier
    (LEC) is receiving universal service support that is not available
    to the new entrant for serving customers in high-cost areas. We
    believe that requiring a prospective new entrant to provide service
    throughout a service area before receiving ETC status has the effect
    of prohibiting competitive entry in those areas where universal
    service support is essential to the provision of affordable
    telecommunications service and is available to the incumbent LEC.
    Such a requirement would deprive consumers in high-cost areas of the
    benefits of competition by insulating the incumbent LEC from
    competition.

13. No competitor would ever reasonably be expected to enter a high-cost
    market and compete against an incumbent carrier that is receiving
    support without first knowing whether it is also eligible to receive
    such support.[^23] We believe that it is unreasonable to expect an
    unsupported carrier to enter a high-cost market and provide a
    service that its competitor already provides at a substantially
    supported price. Moreover, a new entrant cannot reasonably be
    expected to be able to make the substantial financial investment
    required to provide the supported services in high-cost areas
    without some assurance that it will be eligible for federal
    universal service support.[^24] In fact, the carrier may be unable
    to secure financing or finalize business plans due to uncertainty
    surrounding its designation as an ETC.

14. In addition, we find such an interpretation of section 214(e)(1) to
    be contrary to the meaning of that provision. Section 214(e)(1)
    provides that a common carrier designated as an eligible
    telecommunications carrier shall "offer" and advertise its
    services.[^25] The language of the statute does not require the
    actual provision of service prior to designation.[^26] We believe
    that this interpretation is consistent with the underlying
    congressional goal of promoting competition and access to
    telecommunications services in high-cost areas. In addition, this
    interpretation is consistent with the Commission's conclusion that a
    carrier must meet the section 214(e) criteria as a condition of its
    being designated an eligible carrier "and *then* must provide the
    designated services to customers pursuant to the terms of section
    214(e) in order to receive support."[^27]

15. In addition, we note that ETC designation only allows the carrier to
    become *eligible* for federal universal service support. Support
    will be provided to the carrier only upon the provision of the
    supported services to consumers.[^28] We note that ETC designation
    prior to the provision of service does not mean that a carrier will
    receive support without providing service.[^29] We also note that
    the state commission may revoke a carrier's ETC designation if the
    carrier fails to comply with the ETC eligibility criteria.

16. In addition, we believe the fact that a carrier may already be
    providing service within the state prior to designation is not
    conclusive of whether the carrier can reasonably be expected to
    provide service throughout the service area, particularly in
    high-cost areas, prior to designation. While a requirement that a
    carrier be providing service throughout the service area may not
    affect the provision of service in lower-cost areas, it is likely to
    have the effect of prohibiting the ability of carriers without
    eligibility for support to provide service in high-cost areas.[^30]

17. [Gaps in Coverage]{.underline}. We find the requirement that a
    carrier provide service to every potential customer throughout the
    service area before receiving ETC designation has the effect of
    prohibiting the provision of service in high-cost areas. As an ETC,
    the incumbent LEC is required to make service available to all
    consumers upon request, but the incumbent LEC may not have
    facilities to every possible consumer.[^31] We believe the ETC
    requirements should be no different for carriers that are not
    incumbent LECs. A new entrant, once designated as an ETC, is
    required, as the incumbent is required, to extend its network to
    serve new customers upon reasonable request. We find, therefore,
    that new entrants must be allowed the same reasonable opportunity to
    provide service to requesting customers as the incumbent LEC, once
    designated as an ETC.[^32] Thus, we find that a telecommunications
    carrier's inability to demonstrate that it can provide ubiquitous
    service at the time of its request for designation as an ETC should
    not preclude its designation as an ETC.

18. [State Authority]{.underline}. Finally, although Congress granted to
    state commissions, under section 214(e)(2), the primary authority to
    make ETC designations, we do not agree that this authority is
    without any limitation.[^33] While state commissions clearly have
    the authority to deny requests for ETC designation without running
    afoul of section 253, the denials must be based on the application
    of competitively neutral criteria that are not so onerous as to
    effectively preclude a prospective entrant from providing service.
    We believe that this is consistent with sections 214(e), 253, and
    254, as well as the decision of the United States Court of Appeals
    for the Fifth Circuit in *Texas Office of Public Utility Counsel v.
    FCC*.[^34] We reiterate, however, that the state commissions are
    primarily responsible for making ETC designations. Nothing in this
    Declaratory Ruling is intended to undermine that responsibility. In
    fact, it is our expectation that the guidance provided in this
    Declaratory Ruling will enable state commissions to move
    expeditiously, in a pro-competitive manner, on many pending ETC
    designation requests.

## Section 253(b) Analysis

### Background

19. Section 253(b) preserves the state's authority to impose a
    requirement affecting the provision of telecommunications services
    in certain circumstances.[^35] Section 253(b) allows states to
    impose, on a competitively neutral basis and consistent with section
    254, requirements necessary to preserve and advance universal
    service, protect the public safety and welfare, ensure the continued
    quality of telecommunications service, and safeguard the rights of
    consumers.[^36] Section 253(d) requires that we preempt such
    requirements unless we find that they meet each of the relevant
    criteria set forth in section 253(b). The Commission has preempted
    state regulations for failure to satisfy even one of the relevant
    criteria.[^37]

### Discussion

20. We find that a requirement to provide the supported services
    throughout the service area prior to designation as an ETC does not
    fall within the "safe harbor" provisions of section 253(b). To the
    contrary, we find that this requirement is not competitively
    neutral, consistent with section 254, or necessary to preserve and
    advance universal service. We therefore find that a requirement that
    obligates new entrants to provide supported services throughout the
    service area prior to designation as an ETC is subject to our
    preemption authority under section 253(d).

21. [Competitive Neutrality]{.underline}. We find that the requirement
    to provide service prior to designation as an ETC is not
    competitively neutral. We believe this finding is consistent with
    the Commission's determination in the *Universal Service Order* that
    "\[c\]ompetitive neutrality means that universal service support
    mechanisms and rules neither unfairly advantage nor disadvantage one
    provider over another, and neither unfairly favor nor disfavor one
    technology over another."[^38] At the outset, we believe that, to
    meet the competitive neutrality requirement in non-rural telephone
    company service areas, the procedure for designating carriers as
    ETCs should be functionally equivalent for incumbents and new
    entrants.[^39] As discussed above, requiring the actual provision of
    supported services throughout the service area prior to ETC
    designation unfairly skews the universal service support mechanism
    in favor of the incumbent LEC. As a practical matter, the carrier
    most likely to be providing all the supported services throughout
    the requested designation area before ETC designation is the
    incumbent LEC.[^40] Without the assurance of eligibility for
    universal service funding, it is unlikely that any non-incumbent LEC
    will be able to make the necessary investments to provide service in
    high-cost areas.

22. We are not persuaded that such a requirement is competitively
    neutral merely because the requirement to provide service prior to
    ETC designation applies equally to both new entrants and incumbent
    LECs.[^41] We recently concluded that the proper inquiry is whether
    the *effect* of the legal requirement, rather than the method
    imposed, is competitively neutral.[^42] As discussed above, we find
    that the result of such a requirement is to favor incumbent LECs
    over new entrants. Unlike a new entrant, the incumbent LEC is
    already providing service and therefore bears no additional burden
    from a requirement that it provide service prior to designation as
    an ETC. We therefore find that requiring the provision of supported
    services throughout the service area prior to ETC designation has
    the effect of uniquely disadvantaging new entrants in violation of
    section 253(b)'s requirement of competitive neutrality.

23. [Consistent with Section 254 and Necessary to Preserve and Advance
    Universal Service]{.underline}. We find that the requirement to
    provide service prior to designation as an ETC is not consistent
    with section 254 or "necessary to preserve and advance universal
    service."[^43] To the contrary, we find that such a requirement has
    the effect of prohibiting the provision of service in high-cost
    areas. As discussed above, this requirement clearly has a disparate
    impact on new entrants, in violation of the competitive neutrality
    and nondiscriminatory principles embodied in section 254.[^44] We
    believe that it is unreasonable to expect an unsupported carrier to
    enter a high-cost market and provide a service that its competitor
    already provides at a substantially supported price. If new entrants
    are not provided with the same opportunity to receive universal
    service support as the incumbent LEC, such carriers will be
    discouraged from providing service and competition in high-cost
    areas.[^45] Consequently, under an interpretation of section 214(e)
    that requires new entrants to provide service throughout the service
    area prior to designation as an ETC, the benefits that may otherwise
    occur as a result of access to affordable telecommunications
    services will not be available to consumers in high-cost areas. We
    believe such a result is inconsistent with the underlying universal
    service principles set forth in section 254(b) that are designed to
    preserve and advance universal service by promoting access to
    telecommunications services in high-cost areas.[^46]

24. A new entrant can make a reasonable demonstration to the state
    commission of its capability and commitment to provide universal
    service without the actual provision of the proposed service. There
    are several possible methods for doing so, including, but not
    limited to: (1) a description of the proposed service technology, as
    supported by appropriate submissions; (2) a demonstration of the
    extent to which the carrier may otherwise be providing
    telecommunications services within the state;[^47] (3) a description
    of the extent to which the carrier has entered into interconnection
    and resale agreements;[^48] or, (4) a sworn affidavit signed by a
    representative of the carrier to ensure compliance with the
    obligation to offer and advertise the supported services.[^49] We
    caution that a demonstration of the capability and commitment to
    provide service must encompass something more than a vague assertion
    of intent on the part of a carrier to provide service. The carrier
    must reasonably demonstrate to the state commission its ability and
    willingness to provide service upon designation.

## Federal Preemption Authority

### Background

25. State regulatory provisions may be preempted when enforcement of a
    state legal requirement conflicts with federal law or "stands as an
    obstacle to the accomplishment and execution of the full purposes
    and objectives of Congress."[^50] Preemption may result not only
    from action taken by Congress, but also from a federal agency acting
    within the scope of its congressionally delegated authority.[^51]

26. In section 254, Congress codified the Commission's historical policy
    of promoting universal service to ensure that consumers in all
    regions of the nation have access to telecommunications
    services.[^52] Congress, recognizing that existing universal service
    support mechanisms were adopted in a monopoly environment, directed
    the Commission, in consultation with a federal-state Joint Board, to
    establish support mechanisms for the preservation and advancement of
    universal service in the competitive telecommunications environment
    that Congress envisioned.[^53] Section 254(b) sets forth the
    underlying principles on which Congress directed the Commission to
    base policies for the preservation and advancement of universal
    service. These principles include the promotion of access to
    telecommunications services in rural and high-cost areas of the
    nation.[^54] As noted above, consistent with the recommendation of
    the Joint Board, the Commission adopted the additional guiding
    principle of competitive neutrality.[^55] In doing so, the
    Commission concluded that competitive neutrality will foster the
    development of competition and benefit certain providers, including
    wireless carriers, that may have been excluded from participation in
    the existing universal service mechanism.[^56] Section 254(f) also
    provides that, "\[a\] State may adopt regulations not inconsistent
    with the Commission's rules to preserve and advance universal
    service."[^57]

### Discussion

27. We find an interpretation of section 214(e)(1) that requires a new
    entrant to provide service throughout the service area prior to
    designation as an ETC to be fundamentally inconsistent with the
    universal service provisions in the 1996 Act. Specifically, we find
    such a requirement to be inconsistent with the meaning of section
    214(e)(1), Congress' universal service objectives as outlined in
    section 254, and the Commission's policies and rules in implementing
    section 254. As discussed above, this approach essentially requires
    a new entrant to provide service throughout high-cost areas prior to
    its designation as an ETC. We find that such a requirement stands as
    an obstacle to the Commission's execution and accomplishment of the
    full objectives of Congress in promoting competition and access to
    telecommunications services in high-cost areas.[^58] To the extent
    that a state's requirement under section 214(e)(1) that a new
    entrant provide service throughout the service area prior to
    designation as an ETC also involves matters properly within the
    state's intrastate jurisdiction under section 2(b) of the Act,[^59]
    such matters that are inseparable from the federal interest in
    promoting universal service in section 254 remain subject to federal
    preemption.[^60]

28. [Section 214]{.underline}. We find that the requirement that a
    carrier provide service throughout the service area prior to its
    designation as an ETC conflicts with the meaning and intent of
    section 214(e)(1). Section 214(e)(1) provides that a common carrier
    designated as an eligible telecommunications carrier shall "offer"
    and advertise its services.[^61] The statute does not require a
    carrier to provide service prior to designation. As discussed above,
    we have concluded that a carrier cannot reasonably be expected to
    enter a high-cost market prior to its designation as an ETC and
    provide service in competition with an incumbent carrier that is
    receiving support. We believe that such an interpretation of section
    214(e) directly conflicts with the meaning of section 214(e)(1) and
    Congress' intent to promote competition and access to
    telecommunications service in high-cost areas.[^62]

29. While Congress has given the state commissions the primary
    responsibility under section 214(e) to designate carriers as ETCs
    for universal service support, we do not believe that Congress
    intended for the state commissions to have unlimited discretion in
    formulating eligibility requirements. Although Congress recognized
    that state commissions are uniquely suited to make ETC
    determinations, we do not believe that Congress intended to grant to
    the states the authority to adopt eligibility requirements that have
    the effect of prohibiting the provision of service in high-cost
    areas by non-incumbent carriers.[^63] To do so effectively
    undermines congressional intent in adopting the universal service
    provisions of section 254.

30. [Section 254]{.underline}. Consistent with the guidance provided
    above, we find a requirement that a carrier provide service prior to
    designation as an ETC inconsistent with the underlying principles
    and intent of section 254. Specifically, section 254 requires the
    Commission to base policies for the advancement and preservation of
    universal service on principles that include promoting access to
    telecommunications services in high-cost and rural areas of the
    nation.[^64] Because section 254(e) provides that only a carrier
    designated as an ETC under section 214(e) may be eligible to receive
    federal universal service support, an interpretation of section
    214(e) requiring carriers to provide service throughout the service
    area prior to designation as an ETC stands as an obstacle to the
    accomplishment of the congressional objectives outlined in section
    254.[^65] If new entrants are effectively precluded from universal
    service support eligibility due to onerous eligibility criteria, the
    statutory goals of preserving and advancing universal service in
    high-cost areas are significantly undermined.

31. In addition, such a requirement conflicts with the Commission's
    interpretation of section 254, specifically the principle of
    competitive neutrality adopted by the Commission in the *Universal
    Service Order*.[^66] In the *Universal Service Order*, the
    Commission stated that, "competitive neutrality in the collection
    and distribution of funds and determination of *eligibility* in
    universal service support mechanisms is consistent with
    congressional intent and necessary to promote a pro-competitive,
    de-regulatory national policy framework."[^67] As discussed above, a
    requirement to provide service throughout the service area prior to
    designation as an ETC violates the competitive neutrality principle
    by unfairly skewing the provision of universal service support in
    favor of the incumbent LEC. As stated in the *Universal Service
    Order*, "competitive neutrality will promote emerging technologies
    that, over time, may provide competitive alternatives in rural,
    insular, and high cost areas and thereby benefit rural
    consumers."[^68] Requiring new entrants to provide service
    throughout the service area prior to ETC designation discourages
    "emerging technologies" from entering high-cost areas. In addition,
    we note that section 254(f) provides that, "\[a\] State may adopt
    regulations not inconsistent with the Commission's rules to preserve
    and advance universal service."[^69] For the reasons discussed
    extensively above, we find an interpretation of section 214(e)
    requiring the provision of service throughout the service area prior
    to designation as an ETC to be inconsistent with the Commission's
    universal service policies and rules.

#  {#section .unnumbered}

#  {#section-1 .unnumbered}

#  {#section-2 .unnumbered}

# Ordering ClauseS

32. Accordingly, IT IS ORDERED that pursuant to sections 4(i), 253, and
    254 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    154(i), 253, and 254, and section 1.2 of the Commission's rules, 47
    C.F.R. § 1.2, and Article VI of the U.S. Constitution, that this
    Declaratory Ruling IS ADOPTED.

33. IT IS FURTHER ORDERED that Western Wireless' Petition for Preemption
    of an Order of the South Dakota Public Utilities Commission shall be
    placed in abeyance pending resolution of the appeal.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas Secretary

**DISSENTING STATEMENT OF**

**COMMISSIONER HAROLD FURCHTGOTT-ROTH**

*Re: Federal-State Board on Universal Service, Western Wireless
Corporation Petition for Preemption of an Order of the South Dakota
Public Utilities Commission*, Declaratory Ruling, CC Docket No. 96-45.

I dissent from today's Declaratory Ruling. It is not necessary for the
Commission to issue this advisory statement, and its ruling is
inconsistent with section 253's plain mandate and with past Commission
precedent interpreting that provision. Indeed, the Commission rests its
section 253 analysis upon a factual predicate that does not exist.
Moreover, the South Dakota PUC has permissibly interpreted section
214(e)(1), and it is inappropriate for the Commission to override the
PUC's determination.

**This Declaratory Ruling Is Unnecessary.** To begin with, there is no
need for the Commission to issue an advisory statement concerning the
South Dakota Public Utilities Commission's decision. A South Dakota
trial court has vacated the PUC's order, and an appeal is currently
pending in the South Dakota Supreme Court.[^70] There is no reason to
think that the state supreme court will not appropriately resolve the
issue. Further, contrary to the Commission's assertions,[^71] this order
will be of no assistance to other state commissions. No other state
commissions have interpreted section 214 in the way that the South
Dakota PUC has done, nor have other state commissions indicated that
they plan to adopt the South Dakota PUC's interpretation of section 214.
There is therefore no need for the Commission to offer "guidance" on
this issue.

**The Commission Has Improperly Applied Section 253.** Not only is the
Commission's ruling unnecessary, but also its preemption analysis is
faulty. Oddly, although the Commission claims that the purpose of this
order is to "provide guidance to remove uncertainty and terminate
controversy regarding whether section 214(e)(1) . . . requires a common
carrier to provide supported services throughout a service area prior to
being designated an eligible telecommunications carrier,"[^72] it
devotes the bulk of its discussion to preemption under section 253.

First, even if it were appropriate for the Commission to issue a
statement regarding its understanding of section 214(e) -- which it is
not -- there is no reason for it also to address section 253 preemption.
Moreover, by issuing an advisory statement regarding section 253, the
Commission wades into dangerous waters. Section 253(d) specifies that
the Commission should preempt state regulations only "*to the extent
necessary* to correct . . . a violation or inconsistency \[with sections
253(a) and (b)\]." In view of this statutory directive, it is
inappropriate for the Commission to issue *any* advisory statement
regarding section 253. Quite simply, how can it be "necessary" for the
Commission to act to correct a violation of sections 253(a) or (b)
where, as here, a court has vacated the state PUC's order, and no state
requirement even exists?

Even assuming that the South Dakota PUC's order presented an issue that
could appropriately be addressed under section 253, the Commission's
application of that provision to South Dakota's requirement is
inconsistent with the statute's plain language. Section 253(a)
proscribes only those state requirements that "*may prohibit* or *have
the effect of prohibiting* the ability of any entity to provide any
interstate or intrastate telecommunications service."[^73] It is
impossible to understand how failing to assign a new carrier eligible
telecommunications carrier status could "prohibited" or had the "effect
of prohibiting" it from providing service in South Dakota. The
Declaratory Ruling asserts that "\[a\] new entrant faces a substantial
barrier to entry if the incumbent local exchange carrier (LEC) is
receiving universal service support that is not available to the new
entrant for serving customers in high-cost areas." [^74] Amazingly,
however, the order leaves out the fact that in the non-rural areas of
South Dakota, the incumbent does *not* receive federal universal support
for *any* of the non-rural lines it serves. In other words -- and
contrary to the linchpin of the Commission's reasoning here --
designation as an ETC confers *no* benefit at all upon the non-rural
incumbent carrier that has received that status, and there is no factual
basis for concluding that another carrier's lack of ETC status could
have the effect of prohibiting that carrier from offering service.

To be sure, incumbent carriers that serve rural areas in South Dakota do
receive some federal universal service support. But whether to designate
more than one carrier as an ETC in these rural areas lies *entirely*
within the South Dakota PUC's discretion, and I do not understand the
majority to question that principle, which is dictated by the 1996 Act
and our precedent.[^75] A state commission remains free to decline to
grant an applicant ETC status for rural areas, based on public interest
considerations, and this order can have no effect on its exercise of
that discretion.

In addition to being incompatible with section 253's plain language, the
Commission's interpretation of this provision is not consistent with
this agency's precedent. The Commission pretends that its prior
decisions support its preemption of the South Dakota PUC's order. But an
examination of the facts of these cases demonstrates just the opposite.
In its past decisions, the Commission has indicated that section 253
preemption is appropriate only if a state requirement is so burdensome
it effectively precludes a provider from providing service, and it
previously has refused to preempt state requirements that fall short of
that standard.[^76]

For example, the majority cites *Pittencrieff Communications, Inc.* as
support for its preemption analysis here. [^77] But the Commission did
*not* preempt the Texas requirement at issue in that case, which
required all carriers, including the petitioner, a commercial mobile
radio service provider operating in Texas, to contribute to the state
universal service fund.[^78] The Commission ruled that the requirement
did not prohibit a CMRS provider from entering the market since it
applied to *all* telecommunications providers operating in Texas.[^79]
Indeed, the logic applied in *Pittencrieff* compels the conclusion that
preemption is inappropriate here -- the South Dakota PUC's requirement
that, in order to qualify as an eligible telecommunications carrier
under section 214(e), a carrier must currently be providing service to
subscribers, applies to incumbents and new entrants alike.[^80]

The Commission's decision is also at odds with its recent decision
rejecting Minnesota's petition for a declaration that its contract with
a fiber optics developer was permissible under the 1996 Act. Under the
contract at issue, the developer was to receive exclusive access to
freeway rights-of-way in Minnesota in exchange for installing 1,900
miles of fiber optic cable and allowing the state to use some of that
cable. For procedural reasons, the Commission did not preempt
Minnesota's contract.[^81] Nevertheless, it determined that the contract
posed grave problems under section 253, in that it gave a single
developer what amounted to a monopoly on freeway rights-of-way. The
contract would essentially have precluded later entrants from gaining
access to the freeway rights-of-way to lay their own fiber optic cable
for ten years,[^82] and it would have been prohibitively expensive for
competitors to purchase alternative rights-of-way.[^83] In view of these
facts, the Commission determined that the agreement potentially ran
afoul of section 253 because it singled out one provider for
preferential treatment, while effectively prohibiting others from
entering the market altogether. Similarly, in *New England Public
Communications Council Petition for Preemption Pursuant to Section
253*,[^84] a state requirement had the effect of completely preventing
independent payphone providers from entering the payphone market, in
direct contravention of section 276 of the 1996 Act.[^85] Consistent
with section 253(a), the Commission preempted the requirement.

The South Dakota PUC, by contrast, has not accorded preferential
treatment to any carrier. Rather, it has simply directed that a carrier
that wishes to be designated an eligible telecommunications carrier
under section 214 show that it currently provides service in the areas
in which it seeks ETC status. Even if ETC status conferred some benefit
on a carrier (which it clearly does not), I do not understand how a
generally applicable rule such as this one could "prohibit" or have the
"effect of prohibiting" the ability of a carrier to provide
telecommunications services within the meaning of section 253.

**The South Dakota PUC's Construction of Section 214(e) Is
Permissible.** The South Dakota PUC, in ruling that a carrier may not
receive ETC designation unless it currently provides service throughout
the service area, has permissibly construed section 214(e)(1). That
provision states that a common carrier designated as an eligible
telecommunications carrier "*shall*, throughout the service area for
which the designation is received . . . *offer* the services that are
supported by Federal universal service support mechanisms under section
254(c).[^86] The verbs "shall" and "offer" are used the present tense,
and the South Dakota PUC reasonably concluded that these terms mean that
a carrier must *presently* offer its service throughout the service area
before it may be designated an ETC and may not merely *intend* to offer
that service at some point in the future. Although other state
commissions might interpret section 214(e)(1) differently, the South
Dakota PUC's interpretation of that provision is clearly permissible.

Indeed, in order to override the South Dakota PUC's determination and
reach the outcome it prefers, the Commission must manufacture a far more
strained definition of the term "to offer." "To offer," the Commission
reasons, has nothing to do with whether an entity actually provides
service or is immediately capable of providing that service upon a
customer's request. The Commission stretches the statute's language past
the breaking point. If Congress had intended for carriers to be eligible
telecommunications carriers based simply on a readiness to provide
service, it could easily have said so. And the Commission's construction
of section 214(e)(1) effectively reads out of the Act one of the
provision's chief requirements. If carriers may qualify for ETC status
based merely on their "readiness" to make service available, section
214(e)(1) becomes nothing more than a self-certification provision, a
result that is plainly at odds with the statute's intent. It is
elementary that a construction that renders a statutory provision
superfluous must be avoided, and the Commission has ignored that
principle here.[^87]

> \* \* \* \* \*

Because the Commission's decision is unnecessary, inconsistent with
sections 253, and improperly overrides the South Dakota PUC's
application of section 214(e), I dissent from this Declaratory Ruling.

[^1]: The Commission may, in accordance with section 5(d) of the
    Administrative Procedure Act, on motion or on its own motion, issue
    a declaratory ruling terminating a controversy or removing
    uncertainty. *See* 5 U.S.C. § 554(e), 47 C.F.R. § 1.2.

[^2]: *See, e.g.*, Letter from Competitive Universal Service Coalition,
    to Chairman William E. Kennard, FCC, dated March 8, 2000 at 2, 6;
    Letter from Gene DeJordy, Western Wireless, to Chairman William E.
    Kennard, FCC, dated March 29, 2000 at 1-2; *Petition for Preemption
    of an Order of the South Dakota Public Utilities Commission*, filed
    by Western Wireless (June 23, 1999) (*Western Wireless petition*);
    *The Filing by GCC License Corporation for Designation as an
    Eligible Telecommunications Carrier*, Notice of Appeal to the
    Supreme Court of South Dakota, Civ. 99-235, filed by the South
    Dakota Public Utilities Commission (May 10, 2000) (South Dakota PUC
    Notice of Appeal).

[^3]: *See Western Wireless petition*. Comments cited herein are in
    response to this petition. *See also The Filing by GCC License
    Corporation for Designation as an Eligible Telecommunications
    Carrier*, Finding of Facts and Conclusions of Law; Notice of Entry
    of Order, Before the Public Utilities Commission of the State of
    South Dakota, TC98-146 (May 19, 1999).

[^4]: *Filing by GCC License Corporation for Designation as an Eligible
    Telecommunications Carrier*, Findings of Fact, Conclusions of Law,
    and Order, Civ. 99-235 (SD Sixth Jud. Cir. March 22, 2000) (*South
    Dakota Circuit Court Order*) (concluding that the South Dakota PUC
    "erred as a matter of law by determining that an applicant for ETC
    designation must first be providing a universal service offering to
    every location in the requested designated service area prior to
    being designated an ETC").

[^5]: 47 U.S.C. § 253(d) (emphasis added).

[^6]: *See* South Dakota Codified Laws § 15-26A-38.

[^7]: South Dakota PUC Notice of Appeal.

[^8]: 47 U.S.C. § 254(e).

[^9]: 47 U.S.C. § 214(e)(2).

[^10]: 47 U.S.C. § 214(e)(1).

[^11]: *See, e.g.*, *American Communications Services, Inc., MCI
    Telecommunications Corp. Petition for Expedited Declaratory Ruling
    Preempting Arkansas Telecommunications Regulatory Reform Act of 1997
    Pursuant to Sections 251, 252, and 253 of the Communications Act, as
    amended*, Memorandum Opinion and Order, CC Docket No. 97-100, FCC
    99-386 (rel. Dec. 23, 1999); *Petition of Pittencrieff
    Communications, Inc., for Declaratory Ruling Regarding Preemption of
    the Texas Public Utility Regulatory Act of 1995*, Memorandum Opinion
    and Order, File No. WTB/POL 96-2, 13 FCC Rcd 1735 (1997) *aff'd CTIA
    v. FCC*, 168 F.3d 1332 (D.C. Cir. 1999) (*Pittencrieff
    Communications, Inc.*); *Silver Star Telephone Company, Inc.,
    Petition for Preemption and Declaratory Ruling*, Memorandum Opinion
    and Order, CCB Pol 97-1, 12 FCC Rcd 15639 (1997) (*Silver Star*)
    *reconsideration denied,* 13 FCC Rcd 16356 (1998) *aff'd, RT
    Communications, Inc. v. FCC*, 201 F.3d 1264 (10^th^ Cir. 2000).

[^12]: 47 U.S.C. § 253(a).

[^13]: 47 U.S.C. § 253(b).

[^14]: *Pittencrieff Communications, Inc.*, 13 FCC Rcd at 1752, para.
    33.

[^15]: For example, in *Silver Star*, the Commission preempted a Wyoming
    statute for its failure to satisfy the "competitive neutrality"
    criterion. *Silver Star*, 12 FCC Rcd at 15658-60, paras. 42, 45.

[^16]: 47 U.S.C. § 253(d). ("If, after notice and an opportunity for
    public comment, the Commission determines that a State or local
    government has permitted or imposed any statute, regulation, or
    legal requirement that violates subsection (a) or (b), the
    Commission shall preempt the enforcement of such statute,
    regulation, or legal requirement to the extent necessary to correct
    such violation or inconsistency.").

[^17]: *Louisiana Public Service Commission v. FCC*, 476 U.S. 355, 368
    (1986).

[^18]: *Id*. at 368-369 (citations omitted).

[^19]: *Id*. at 369; *Fidelity Federal Sav. And Loan Ass'n v. De La
    Cuesta*, 458 U.S. 141, 153-54 (1982); *City of New York v. FCC*, 486
    U.S. 57, 64 (1988) ("\[t\]he statutorily authorized regulations of
    an agency will pre-empt any state or local law that conflicts with
    such regulations or frustrates the purposes thereof").

[^20]: *See* 47 U.S.C. § 253(a).

[^21]: *See The Petition of the State of Minnesota for a Declaratory
    Ruling Regarding the Effect of Section 253 on an Agreement to
    Install Fiber Optic Wholesale Transport Capacity in State Freeway
    Rights-of-Way*, Memorandum Opinion and Order, CC Docket No. 98-1,
    FCC 99-402 (rel. Dec. 23, 1999) (concluding that an agreement
    between a developer and the State creates a "legal requirement"
    subject to section 253 preemption) at paras. 17-18 (*Minnesota
    Declaratory Ruling*). "We believe that interpreting the term 'legal
    requirement' broadly, best fulfills Congress' desire to ensure that
    states and localities do not thwart the development of competition."
    *Id.*

[^22]: *See, e.g.*, ALTS comments at 3-5; AT&T comments at 7-9; CTIA
    reply comments at 4; Minnesota PUC comments at 2; PCIA comments 4-5;
    Washington UTC reply comments at 3.

[^23]: *Western Wireless petition* at 8.

[^24]: *See Minnesota Cellular Corporation's Petition for Designation as
    an Eligible Telecommunications Carrier*, Order Granting Preliminary
    Approval and Requiring Further Filings, Docket No. P-5695/M-98-1285
    (Oct. 27, 1999) (*Minnesota PUC Order*) at 7.

[^25]: 47 U.S.C. § 214(e)(1).

[^26]: *See, e.g.*, *Western Wireless Corporation Designated Eligible
    Carrier Application*, Findings of Fact, Conclusions of Law and
    Order, North Dakota Public Service Commission, Case No.
    PU-1564-98-428 (Dec. 15, 1999) (*North Dakota Order)*; *Minnesota
    PUC Order*. *See also* Washington UTC reply comments at 3-5.

[^27]: *Federal-State Joint Board on Universal Service*, Report and
    Order, CC Docket No. 96-45, 12 FCC Rcd 8876, 8853, para. 137 (1997),
    as corrected by *Federal-State Joint Board on Universal Service*,
    Erratum, CC Docket No. 96-45, FCC 97-157 (rel. June 4, 1997), *aff'd
    in part, rev'd in part, remanded in part sub nom. Texas Office of
    Public Utility Counsel v. FCC*, 183 F.3d 393 (5^th^ Cir. 1999)
    *cert. granted,* 120 S.Ct. 2214 (U.S. June 5, 2000*)* (No. 99-1244)
    (*Universal Service Order*) (emphasis in original).

[^28]: *Universal Service Order*, 12 FCC Rcd 8853, para. 137.

[^29]: Washington UTC reply comments at 4.

[^30]: ALTS comments at 4-5.

[^31]: *See Minnesota PUC Order* at 11, concluding that, "\[a\]ll
    carriers, but especially rural carriers, have pockets within their
    study areas where they have no customers or facilities. If
    development occurs, they have to build out to the new customer or
    customers. Minnesota Cellular appears to have the same build-out
    capacity as the incumbents, and the potential need for build-out is
    no reason to deny ETC status." *See also North Dakota Order* at
    para. 36, concluding that, "\[a\] requirement to be providing the
    required universal services to 100% of a service area before
    receiving designation as an ETC could be so onerous as to prevent
    any other carrier from receiving the ETC designation in any service
    area and would require the Commission to rescind the ETC designation
    already given to North Dakota ILECs and Polar Telecom, Inc."

[^32]: *See, e.g.*, *Minnesota PUC Order* at 10-11; *North Dakota Order*
    at para. 36; Washington UTC reply comments at 5-6. *See also* *South
    Dakota Circuit Court Order*, Conclusions of Law at para. 12.

[^33]: *See, e.g.*, Coalition of Rural Telephone Companies comments at
    12 (contending that state decisions under section 214(e) should not
    be reviewed under section 253); South Dakota PUC comments at 9
    (contending that preemption may not be granted because the South
    Dakota PUC exercised a power lawfully delegated to it by Congress in
    a manner consistent with federal law).

[^34]: *See Texas Office of Public Utility Counsel v. FCC*, 183 F.3d
    393, 418 n.31 (5^th^ Cir. 1999) *cert. granted*, 120 S.Ct. 2214
    (U.S. June 5, 2000) (No. 99-1244) ("if a state commission imposed
    such onerous eligibility requirements that no otherwise eligible
    carrier could receive designation, that state commission would
    probably run afoul of § 214(e)(2)'s mandate to 'designate' a carrier
    or 'designate' more than one carrier.").

[^35]: 47 U.S.C. § 253(b). Section 253(c) sets forth additional
    situations, which are not present here, in which a state or local
    government requirement that inhibits entry may still be acceptable.

[^36]: 47 U.S.C. § 253(b).

[^37]: For example, in *Silver Star*, the Commission preempted a Wyoming
    statute for its failure to satisfy the "competitive neutrality"
    criterion. *Silver Star*, 12 FCC Rcd at 15658-60, paras. 42, 45.

[^38]: *Universal Service Order*, 12 FCC Rcd at 8801, para. 47.

[^39]: We thus would be troubled by a process in which the incumbent LEC
    were able to self-certify that it meets the criteria for ETC
    designation, while new entrants were subject to a more rigorous,
    protracted state proceeding.

[^40]: The 1996 Act required carriers to receive an eligible
    telecommunications carrier designation under section 214(e) to
    become eligible for federal high-cost support. 47 U.S.C. § 254(e).

[^41]: South Dakota PUC comments at 10; South Dakota Independent
    Telephone Coalition at 31.

[^42]: *Minnesota Declaratory Ruling* at para. 51 (emphasis added). "We
    do not believe that Congress intended to protect the imposition of
    requirements that are not competitively neutral in their *effect* on
    the theory that the non-neutral requirement was somehow *imposed* in
    a neutral manner. Moreover, we do not believe that this narrow
    interpretation is appropriate because it would undermine the primary
    purpose of section 253 -- ensuring that no state or locality can
    erect legal barriers to entry that would frustrate the 1996 Act's
    explicit goal of opening all telecommunications markets to
    competition."

[^43]: 47 U.S.C. § 253(b).

[^44]: *Universal Service Order*, 12 FCC Rcd at 8801, para. 48 ("We
    agree with the Joint Board that an explicit recognition of
    competitive neutrality in the collection and distribution of funds
    and determination of eligibility in universal service support
    mechanisms is consistent with congressional intent and necessary to
    promote a pro-competitive, de-regulatory national policy
    framework.").

[^45]: The Commission recognized that, in order to promote competition
    and the availability of affordable access to telecommunications
    service in high-cost areas, there must be a competitively neutral
    support mechanism for competitive entrants and incumbent LECs.
    *Universal Service Order*, 12 FCC Rcd at 8932, para. 287.

[^46]: *See* 47 U.S.C. § 254(b).

[^47]: *See North Dakota Order* at para. 39.

[^48]: *See North Dakota Order* at para. 34.

[^49]: Washington UTC reply comments at 5.

[^50]: *Capital Cities Cable, Inc. v*. *Crisp*, 467 U.S. 691, 699
    (1984), *citing Hines v. Davidowitz*, 312 U.S. 57, 67 (1941); *State
    Corporation Commission of Kansas v. FCC*, 787 F.2d 1421, 1425
    (10^th^ Cir. 1986). *See also Louisiana PSC*, 476 U.S. at 368-69.

[^51]: *Louisiana PSC*, 476 U.S. 368-69, *citing Fidelity Federal
    Savings and Loan Assn. v. De la Cuesta*, 458 U.S. 141; *Capital
    Cities Cable, Inc. v. Crisp*, 467 U.S. 691.

[^52]: *See generally* section 254.

[^53]: According to the Joint Explanatory Statement, the purpose of the
    1996 Act is " to provide for a pro-competitive, de-regulatory
    national policy framework designed to accelerate rapidly private
    sector deployment of advanced telecommunications and information
    technologies and services to all Americans by opening all
    telecommunications markets to competition . . . ." Joint Explanatory
    Statement of the Committee of Conference, H.R. Conf. Rep. No. 458,
    104^th^ Cong., 2d Sess. at 113 (Joint Explanatory Statement).

[^54]: *See* 47 U.S.C. § 254(b)(3).

[^55]: *Universal Service Order*, 12 FCC Rcd at 8801-8803, paras. 47-51.

[^56]: *Universal Service Order*, 12 FCC Rcd at 8802, para. 49.

[^57]: 47 U.S.C. § 254(f).

[^58]: *See* Joint Explanatory Statement at 113.

[^59]: 47 U.S.C. § 152(b).

[^60]: *See Louisiana Public Service Commission v. FCC*, 476 U.S. at
    368-69; *AT&T v. Iowa Utilities Board*, 119 S.Ct 721, 730 (1999);
    *Texas Office of Public Utility Counsel v. FCC*, 183 F.3d at 423.

[^61]: 47 U.S.C. § 214(e)(1).

[^62]: *See* Joint Explanatory Statement at 113. *See also supra*
    section III.B for discussion of competitive neutrality.

[^63]: *See Texas Office of Public Utility Counsel v. FCC*, 183 F.3d at
    418 n.31.

[^64]: *See* 47 U.S.C. § 254(b)(3).

[^65]: 47 U.S.C. § 254(e).

[^66]: *Universal Service Order*, 12 FCC Rcd at 8801, para. 47.

[^67]: *Universal Service Order*, 12 FCC Rcd at 8801-02, para. 48
    (emphasis added).

[^68]: *Universal Service Order*, 12 FCC Rcd at 8803, para. 50.

[^69]: 47 U.S.C. § 254(f).

[^70]: *See Federal-State Board on Universal Service, Western Wireless
    Corporation Petition for Preemption of an Order of the South Dakota
    Public Utilities Commission*, Declaratory Ruling, CC Docket No.
    96-45, at ¶ 3 (hereinafter "*Declaratory Ruling*"); *Filing by GCC
    License Corporation for Designation as an Eligible
    Telecommunications Carrier*, Findings of Fact, Conclusions of Law,
    and Order, Civ. 99-235 (S.D. Sixth Jud. Cir. March 22, 2000).

[^71]: *See* *Declaratory Ruling* at ¶ 1.

[^72]: *Declaratory Ruling* at ¶ 1.

[^73]: *See* 47 U.S.C. § 253(a) (emphasis added).

[^74]: *Declaratory Ruling* at ¶ 12.

[^75]: *See* 47 U.S.C. §214(e)(2) ("Upon request and consistent with the
    public interest, convenience, and necessity, the State commission
    *may*, in the case of an areas served by a rural telephone company .
    . . designate more than one common carrier as an eligible
    telecommunications carrier for a service area designated by the
    State commission, so long as each additional requesting carrier
    meets the requirements of \[§ 214(e)(1)\].") (emphasis added);
    *Federal-State Joint Board On Universal Service*, 12 FCC Rcd 8776
    \[¶ 135\] (1997) ("\[T\]he discretion afforded a state commission
    under section 214(e)(2) is the discretion to decline to designate
    more than one eligible carrier in an area that is served by a rural
    telephone company; in that context, the state commission must
    determine whether the designation of an additional eligible carrier
    is in the public interest.").

[^76]: *See, e.g.*, *The Petition of the State of Minnesota for a
    Declaratory Ruling Regarding the Effect of Section 253 on an
    Agreement to Install Fiber Optic Wholesale Transport Capacity in
    State Freeway Rights-of-Way*, Memorandum Opinion and Order, CC
    Docket No. 98-1, ¶ 32 (rel. Dec. 23, 1999) (hereinafter "*Minnesota
    Declaratory Ruling*").

[^77]: *Declaratory Ruling* at ¶ 7.

[^78]: *See Pittencrieff*, 13 FCC Rcd 1735 \[¶ 2\].

[^79]: *See id*. at 1751-1752, ¶ 32.

[^80]: *See Declaratory Ruling* at ¶ 23.

[^81]: *See Minnesota Declaratory Ruling*, *supra* note 21, at ¶ 64.

[^82]: *See id*. at ¶¶ 1 & 19.

[^83]: *See id*. at ¶¶ 22-36.

[^84]: 11 FCC Rcd 19713 (1996) (hereinafter "*New England Public
    Communications*").

[^85]: *See New England Public Communications*, 11 FCC Rcd at
    19726-19727 \[¶¶ 27-30\].

[^86]: 47 U.S.C § 214(e).

[^87]: *See, e.g.*, *Kawaauhau v. Geiger*, 523 U.S. 57, 62 118 S.Ct.
    974, 977 (1998); *United States v. Menasche*, 348 U.S. 528, 538-539,
    75 S.Ct. 513, 519-520 (1955).