**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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| Federal-State Joint Board on         | ) |                            |
| Universal Service                    | * |                            |
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| Kansas Corporation Commission        |   |                            |
| Petition for Waiver of Sections      | * |                            |
| 54.313 and 54.314 of the             | * |                            |
| Commission's Rules                   | ) |                            |
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**ORDER**

**Adopted: January 26, 2007 Released: January 26, 2007**

By the Associate Chief, Wireline Competition Bureau:

# INTRODUCTION

1.  In this Order, we grant a request by the Kansas Corporation
    Commission (Kansas Commission) for a waiver of sections 54.313 and
    54.314 of the Commissions rules.[^1] This waiver will permit USCOC
    of Nebraska/Kansas, LLC d/b/a United States Cellular Corporation
    (U.S. Cellular), an eligible telecommunications carrier (ETC) in
    Kansas, to receive federal high-cost universal service support as of
    the date the Kansas Commission designated U.S. Cellular an ETC. For
    the reasons set forth below, we find that the Kansas Commission has
    demonstrated that good cause warrants granting this waiver.

# BACKGROUND

2.  Section 254(e) of the Communications Act of 1934, as amended (the
    Act), provides that "only an eligible telecommunications carrier
    designated under section 214(e) shall be eligible to receive
    specific Federal universal service support."[^2] Once a carrier is
    designated as an ETC, other requirements must be satisfied before a
    carrier can begin receiving high-cost universal service support.
    Section 254(e) states that support shall be used "only for the
    provision, maintenance, and upgrading of facilities and services for
    which the support is intended."[^3] To implement this statutory
    requirement, the Commission has adopted various certification and
    data filing requirements.[^4]

3.  Pursuant to sections 54.313 and 54.314 of the Commission's rules,
    state commissions must file an annual certification with the
    Universal Service Administrative Company (USAC) and with the
    Commission stating that all high-cost support received by carriers
    within the state will be used "only for the provision, maintenance,
    and upgrading of facilities and services for which support is
    intended."[^5] In instances in which carriers are not subject to the
    jurisdiction of a state, the Commission allows an ETC to certify
    directly to the Commission and USAC that federal high-cost support
    will be used in a manner consistent with section 254(e).[^6]
    Sections 54.313(d) and 54.314(d) provide that the certification must
    be filed by October 1 of the preceding calendar year to receive
    support beginning in the first quarter of a subsequent calendar
    year. If the October 1 deadline for first quarter support is missed,
    the certification must be filed by January 1 for support to begin in
    the second quarter, by April 1 for support to begin in the third
    quarter, and by July 1 for support to begin in the fourth
    quarter.[^7] Under sections 54.313(d) and 54.314(d), newly
    designated ETCs or state commissions have 60 days to file the
    certification.[^8] If a newly designated ETC or a state commission
    does not file the required certifications within 60 days of an ETC's
    designation date, the ETC will not receive support retroactively to
    its ETC designation date. [^9] Instead, the ETC will receive support
    on a going-forward basis pursuant to the date the certification was
    filed.[^10]

4.  *[Kansas Commission's Petition for Waiver]{.underline}.* On July 14,
    2006, the Kansas Commission filed a request for waiver of sections
    54.313 and 54.314 of the Commission's rules to permit U.S. Cellular
    to receive high-cost universal service support as of the date the
    Kansas Commission designated U.S. Cellular an ETC.[^11] The Kansas
    Commission explains that, on November 4, 2005, U.S. Cellular filed
    an application with the Kansas Commission seeking designation as an
    ETC.[^12] On February 10, 2006, the Kansas Commission designated
    U.S. Cellular as an ETC for part of its service area and on March
    30, 2006, for additional parts of its service area.[^13] U.S.
    Cellular was subject to the jurisdiction of the Kansas Commission
    and, therefore, requested that the Kansas Commission file the
    certification, required by sections 54.313 and 54.314, with the
    Commission.[^14] The Kansas Commission states that, due to an
    administrative oversight, it did not file the required certification
    with the Commission within the 60 days required by sections 54.313
    and 54.314.[^15] Thus, absent a waiver U.S. Cellular would only be
    able to obtain support starting in the fourth quarter of 2006, and
    not retroactively to its ETC destination date.[^16]

5.  The Kansas Commission contends that good cause exists to waive the
    certification filing requirements of sections 54.313 and 54.314 of
    the Commission's rules to permit U.S. Cellular to receive high-cost
    loop support universal service support.[^17] The Kansas Commission
    argues that a waiver is in the public interest because: U.S.
    Cellular serves sparsely populated areas in Kansas; high-cost
    support is critically important to U.S. Cellular's service to
    underserved rural communities; no other party will be prejudiced;
    and granting this waiver would further the Commission's goal of
    competitive neutrality.[^18] Additionally, the Kansas Commission
    asserts that the facts stated in its petition are consistent with
    those underlying the Commission's grant of petitions by the West
    Virginia Public Service Commission and the Connecticut Department of
    Public Utility Control.[^19] Finally, the Kansas Commission states
    that it routinely submits timely universal service filings to USAC
    and the Commission, and will take steps to ensure that all future
    certification filings are filed by the applicable deadline.[^20]

# DISCUSSION

6.  We find that the Kansas Commission has demonstrated that there is
    good cause to waive sections 54.313 and 54.314 of the Commission's
    rules to permit U.S. Cellular to receive high-cost universal service
    support as of the date the Kansas Commission designated U.S.
    Cellular an ETC.[^21] Specifically, we find that the potential harm
    that U.S. Cellular customers would suffer, as a consequence of the
    Kansas Commission's failure to timely file its sections 54.313 and
    54.314 certification within the 60 day window for newly designated
    ETCs, justifies a waiver in this instance. This finding is
    consistent with waiver petitions and filing amendments we have
    granted in the past. [^22] Moreover, granting this waiver will
    further the goals of universal service by helping maintain and
    promote access to quality services in rural and high-cost
    areas.[^23]

7.  In granting this waiver, we rely on the Kansas Commission's
    commitment to file required certifications with the Commission and
    USAC by the applicable filing deadlines.[^24] We note that the
    Kansas Commission did file the necessary certification, albeit
    untimely. We thus have no reason to believe that U.S. Cellular will
    use federal high-cost support in a manner contrary to the direction
    of section 254 of the Act. We rely on the Kansas Commission's
    commitment to "take steps to ensure that all future certification
    files are made in accordance with the applicable deadlines."[^25]
    Accordingly, we find that waving sections 54.313 and 54.314 will
    serve the public interest by advancing universal service.[^26]

8.  Nevertheless, we remind state regulatory bodies and carriers that it
    is their responsibility to ensure that their filings are timely
    received in the appropriate places, regardless of the time and
    method of their filings. Carriers now have many options by which to
    file, including U.S. Mail, other sources of commercial delivery,
    facsimile, and electronic mail (e-mail). [^27] For instance, any
    carrier receiving funding from the high-cost universal support
    mechanism may file timely via e-mail at
    [hcfilings@HCLI.universalservice.org](mailto:hcfilingd@HCLI.universalservice.org).
    Additional information regarding USAC's filing procedures and
    deadlines can be found at
    <http://www.usac.org/hc/tools/filing-tool/default.aspx>. We
    encourage filers to use any and all methods they deem necessary to
    ensure their filings are timely received.

# ORDERING CLAUSEs

9.  Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 5(c), 201,
    and 254 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    151, 154(i), 155(c), 201, and 254, and sections 0.91, 0.291, and 1.3
    of the Commission's rules, 47 C.F.R. §§ 0.91, 0.291, and 1.3, that
    the petition for waiver of sections 54.313(d) and 54.314(d) of the
    Commission's rules, 47 C.F.R. §§ 54.313(d); 54.314(d), filed by the
    Kansas Corporation Commission IS GRANTED.

10. IT IS FURTHER ORDERED that, pursuant to sections 0.91, 0.291 and
    1.102 of the Commission's rules, 47 C.F.R. §§ 0.91, 0.291, 1.102,
    this Order SHALL BE EFFECTIVE upon release.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Kirk S. Burgee
>
> Associate Chief
>
> Wireline Competition Bureau

[^1]: Kansas Corporation Commission Petition for Waiver of Sections
    54.313 and 54.314 of the Commission's Rules, CC Docket No. 96-45,
    filed July 14, 2006 (Petition). *See also* 47 C.F.R. §§ 54.313(d),
    54.314(d).

[^2]: 47 U.S.C. § 254(e).

[^3]: *Id.*

[^4]: *See* 47 C.F.R. §§ 54.307, 54.313, 54.314, 54.802(a), 54.809,
    54.903, 54.904.

[^5]: 47 C.F.R. §§ 54.313(a), 54.314(a). The certification requirement
    for non-rural carriers is set forth in 47 C.F.R. § 54.313. The
    certification requirements for rural carriers is set forth in 47
    C.F.R. § 54.314.

[^6]: *See* 47 C.F.R. §§ 54.313(b), 54.314(b); *see also* *Federal-State
    Joint Board on Universal Service*, Fourteenth Report and Order and
    Twenty-Second Order on Reconsideration, CC Docket No. 96-45,
    *Multi-Association Group (MAG) Plan for Regulation of Interstate
    Services of Non-Price Cap Incumbent Local Exchange Carriers and
    Interexchange Carriers*, Report and Order, CC Docket No. 00-256, 16
    FCC Rcd 11244, 11318, para. 189 (2001).

[^7]: 47 C.F.R. §§ 54.313(d), 54.314(d).

[^8]: *See* 47 C.F.R. §§ 54.313(d)(6), 54.314(d)(6); *see also*
    *Federal-State Joint Board on Universal Service*, Report and Order,
    CC Docket No. 96-45, 20 FCC Rcd 6371, 6411, para. 92 (2005) ("*ETC
    Designation Order*").

[^9]: *ETC Designation Order*, 20 FCC Rcd at 6411, para. 92.

[^10]: *Id*.

[^11]: Petition at 1.

[^12]: *Id*. at 1-2.

[^13]: *Id*. at 1.

[^14]: *Id*. at 2.

[^15]: *Id*. The Kansas Commission filed the certification on June 5,
    2006.

[^16]: *Id*. at 2-3.

[^17]: *Id*. at 3-8.

[^18]: *Id*. at 5-7.

[^19]: *Id*. at 6-7; *see* *West Virginia Public Service Commission
    Request for Waiver of State Certification Requirements for High-Cost
    Universal Service Support For Non-Rural Carriers*, CC Docket No.
    96-45, Order, 16 FCC Rcd 5784 (2001) (*West Virginia Commission
    Order*); *Connecticut Department of Public Utility Control Request
    for Waiver of State Certification Requirements for High-Cost
    Universal Service Support for Rural Carriers*, CC Docket No. 96-45,
    Order, 17 FCC Rcd 24804 (Telecom. Access Policy Div. 2002)
    (*Connecticut Commission Order*).

[^20]: Petition at 7.

[^21]: Generally, the Commission's rules may be waived for good cause
    shown. 47 C.F.R. § 1.3. The Commission may exercise its discretion
    to waive a rule where the particular facts make strict compliance
    inconsistent with the public interest. *Northeast Cellular Telephone
    Co. v. FCC*, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (*Northeast
    Cellular*). In addition, the Commission may take into account
    considerations of hardship, equity, or more effective implementation
    of overall policy on an individual basis. *WAIT Radio v. FCC*, 418
    F.2d 1153, 1159 (D.C. Cir. 1969); *Northeast Cellular*, 897 F.2d at
    1166. Waiver of the Commission's rules is therefore appropriate only
    if special circumstances warrant a deviation from the general rule,
    and such deviation will serve the public interest. *Northeast
    Cellular*, 897 F.2d at 1166. Moreover, in demonstrating whether a
    waiver is warranted, the burden of proof rests with the petitioner.
    *Tucson Radio, Inc. v. FCC*, 452 F.2d 1380, 1382 (D.C. Cir. 1971).

[^22]: *West Virginia Commission Order,* 16 FCC Rcd at 5786, para. 7
    (granting a waiver of a section 54.313(c)(2)(i) deadline to accept a
    certification filed 22 days after the filing deadline); *Connecticut
    Commission Order*, 17 FCC Rcd at 24806-24807, para. 7 (granting
    waivers of section 54.314(d)(1) and 54.314(d)(2) deadlines to accept
    a certification filed over four months after the filing deadline);
    *Washington Utilities and Transportation Commission Request to Amend
    Certification, Inland Cellular Telephone Company Request For Waiver
    of Filing Deadline in 47 C.F.R. § 54.313*, CC Docket No. 96-45,
    Order, 20 FCC Rcd 13745 (Telecom. Access Policy Div. 2005) (allowing
    the Washington Utilities and Transportation Commission to amend its
    certification letter to include an ETC which it inadvertently
    omitted from its letter); *Hawaii Public Utilities Commission
    Request for Waiver of Filing Deadline in 47 C.F.R. Section 54.314*,
    CC Docket No. 96-45, Order, 20 FCC Rcd 10655 (Telecom. Access Policy
    Div. 2006) (allowing the Hawaii Public Utility Commission to amend
    its certification letter to include an ETC which it inadvertently
    omitted from its letter).

[^23]: S*ee* 47 U.S.C § 254*.*

[^24]: *See* Petition at 7.

[^25]: *Id*. at 7.

[^26]: 47 C.F.R. § 254(b).

[^27]: We note that, in June 2005, the Commission released a Notice of
    Proposed Rulemaking seeking comment on ways to improve the
    management, administration, and oversight of the federal universal
    service fund. *See Comprehensive Review of Universal Service Fund
    Management, Administration, and Oversight*, WC Docket Nos. 05-195,
    03-109, 02-60, *Federal-State Joint Board on Universal Service*, CC
    Docket Nos. 02-6, 97-21, Notice of Proposed Rulemaking and Further
    Notice of Proposed Rulemaking, 20 FCC Rcd 11308 (2005). Among the
    issues on which the Commission sought comment were filing deadlines.
    *See id.* at 11328-30, paras. 47-51.