**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | CC Docket No. 96-45          |
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| Federal-State Joint Board on     | ** |                              |
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| Universal Service                | *  |                              |
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| Western Wireless Corporation     | ** |                              |
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| Petition for Designation as an   | *  |                              |
|                                  | *) |                              |
| Eligible Telecommunications      | ** |                              |
| Carrier for the                  |    |                              |
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| Pine Ridge Reservation in South  | *) |                              |
| Dakota                           | ** |                              |
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+----------------------------------+----+------------------------------+

**MEMORANDUM OPINION AND ORDER**

**Adopted: September 27, 2001 Released: October 5, 2001**

By the Commission: Commissioner Martin dissenting and issuing a
statement.

# introduction

1.  In this Order, we grant the petition of Western Wireless Corporation
    (Western Wireless) to be designated as an eligible
    telecommunications carrier (ETC) for service offered to tribal
    members on the Pine Ridge Reservation in South Dakota pursuant to
    section 214(e)(6) of the Communications Act of 1934, as amended (the
    Act).[^1] In so doing, we conclude that Western Wireless has
    satisfied the statutory eligibility requirements of section
    214(e)(1).[^2] Specifically, we conclude that Western Wireless has
    demonstrated that it will offer and advertise the services supported
    by the federal universal service support mechanisms throughout the
    designated service area. In addition, we find that the designation
    of Western Wireless as an ETC in those areas of the reservation
    served by rural telephone companies serves the public interest by
    promoting competition and the provision of new technologies to
    tribal members on the Pine Ridge Reservation that suffer from
    significant impediments to affordable telecommunications service.

# background

## The Act

2.  Section 254(e) of the Act provides that "only an eligible
    telecommunications carrier designated under section 214(e) shall be
    eligible to receive specific Federal universal service support."[^3]
    Section 214(e)(1) requires that a common carrier designated as an
    ETC must offer and advertise the service supported by the federal
    universal service mechanisms throughout the designated service
    area.[^4]

3.  Pursuant to section 214(e)(2), the state commissions have the
    primary responsibility for designating carriers as ETCs.[^5] Section
    214(e)(6), however, directs the Commission, upon request, to
    designate as an ETC "a common carrier providing telephone exchange
    service and exchange access that is not subject to the jurisdiction
    of a State Commission."[^6] Under section 214(e)(6), upon request
    and consistent with the public interest, convenience, and necessity,
    the Commission may, with respect to an area served by a rural
    telephone company, and shall, in all other cases, designate more
    than one common carrier as an ETC for a designated service area, so
    long as the requesting carrier meets the requirements of section
    214(e)(1).[^7] Before designating an additional ETC for an area
    served by a rural telephone company, the Commission must find that
    the designation is in the public interest.[^8] On December 29, 1997,
    the Commission released a Public Notice establishing the procedures
    that carriers must use when seeking Commission designation as an ETC
    pursuant to section 214(e)(6).[^9]

## *Twelfth Report and Order* and the Western Wireless Petition

4.  In the *Twelfth Report and Order*, the Commission concluded that a
    carrier seeking a designation of eligibility to receive federal
    universal service support for telecommunications service offered on
    tribal lands may petition the Commission for designation under
    section 214(e)(6), without first seeking designation from the state
    commission.[^10] The Commission indicated that it would proceed to
    the merits of such a petition if the Commission determines that the
    carrier is not subject to the jurisdiction of a state
    commission.[^11]

5.  On January 19, 2001, Western Wireless filed with the Commission a
    petition pursuant to section 214(e)(6) seeking designation of
    eligibility to receive federal universal service support for service
    to be offered on the Pine Ridge Reservation in South Dakota.[^12] In
    its petition, Western Wireless contends that the Commission should
    assume jurisdiction and designate Western Wireless as an ETC
    pursuant to section 214(e)(6) because the South Dakota Public
    Utilities Commission (South Dakota Commission) lacks jurisdiction
    over Western Wireless' provision of service on the reservation.[^13]
    In addition, Western Wireless contends that it satisfies the
    statutory and regulatory prerequisites for designation as an ETC
    under section 214(e).[^14] On October 5, 2001, the Commission
    released the *Pine Ridge Jurisdictional Order* concluding that the
    South Dakota Commission did not have jurisdiction to designate
    Western Wireless as an ETC for the provision of service to tribal
    members on the Pine Ridge Reservation, and therefore that the
    Commission is required to make that limited ETC designation.[^15]

# discussion

6.  We find that Western Wireless has met the requirements set forth in
    sections 214(e)(1) and (e)(6) to be designated as an ETC by this
    Commission for a designated service area that includes tribal
    members residing on the Pine Ridge Reservation in South Dakota.
    Specifically, we conclude that Western Wireless has demonstrated
    that it will offer and advertise the services supported by the
    federal universal service support mechanism throughout the
    designated service area upon designation as an ETC. In addition, we
    find that designation of Western Wireless as an ETC in those areas
    served by rural telephone companies serves the public interest by
    promoting competition and the provision of affordable
    telecommunications service to consumers that suffer from significant
    impediments to telecommunications subscribership.

7.  *[Offering the Services Designated for Support]{.underline}*. We
    conclude that Western Wireless has demonstrated that it will offer
    the services supported by the federal universal service mechanism
    upon designation as an ETC. We therefore conclude that Western
    Wireless complies with the requirement of section 214(e)(1)(A) to
    "offer the services that are supported by the Federal universal
    service support mechanisms under section 254(c)."[^16]

8.  As noted in its petition, Western Wireless is currently providing
    cellular service in South Dakota, including service on the Pine
    Ridge Reservation.[^17] Western Wireless indicates that it currently
    offers tribal members on the Pine Ridge Reservation each of the
    supported services enumerated in the Commission's rules.[^18] No
    party disputes that Western Wireless has the capability to offer
    single-party service, voice-grade access to the public network, the
    functional equivalent to DTMF signaling, access to operator
    services, access to interexchange services, access to directory
    assistance, and toll limitation for qualifying low-income consumers.
    Nor does any party dispute that Western Wireless complies with state
    law and Commission directives on providing access to emergency
    services. In addition, although the Commission has not set a minimum
    local usage requirement, Western Wireless currently offers several
    service options that include varying amounts of local usage in its
    monthly service plans.[^19] In fact, Western Wireless indicates that
    tribal members on the Pine Ridge Reservation receive unlimited local
    usage within the defined local calling area.[^20] In sum, we
    conclude that Western Wireless has demonstrated that it will offer
    each of the supported services upon designation as an ETC on the
    Pine Ridge Reservation.

9.  *[Offering the Supported Services Using a Carrier's Own
    Facilities]{.underline}*. We conclude that Western Wireless has
    satisfied the requirement of section 214(e)(1)(A) that it offer the
    supported services using either its own facilities or a combination
    of its own facilities and resale of another carrier's services.[^21]
    Western Wireless states that it intends to provide the supported
    services using "its existing cellular network infrastructure,
    consisting of switching, trunking, cell sites, and network equipment
    that it owns or leases, together with any expansion and enhancements
    to that network."[^22] We find this certification sufficient to
    satisfy the requirements of section 214(e)(1)(A).

10. *[Advertise the Supported Services]{.underline}*. We conclude that
    Western Wireless has demonstrated that it satisfies the requirement
    of section 214(e)(1)(B) to advertise the availability of the
    supported services and the charges therefor using media of general
    distribution. Western Wireless certifies that it will advertise the
    availability of its universal service offering, and the charges
    therefor, using media of general distribution.[^23] Specifically,
    Western Wireless indicates that it currently employs several
    advertising media to promote its service, including television,
    radio, newspaper, and billboard advertising. In addition, Western
    Wireless states that it will expand upon these media as necessary to
    ensure that tribal members on the Pine Ridge Reservation are fully
    informed of the new universal service offering.[^24] Consistent with
    the Commission's direction in the *Twelfth Report and Order*, we
    encourage Western Wireless to promote awareness of its universal
    service offerings, including low-income programs, through
    non-traditional means that may take into consideration the cultural
    and linguistic characteristics of the tribal members of the Pine
    Ridge Reservation.[^25] Moreover, given that ETCs receive universal
    service support only to the extent that they serve customers, we
    believe that strong economic incentives exist, in addition to the
    statutory obligation, to advertise the universal service offering on
    the Pine Ridge Reservation.

11. *[Public Interest Analysis]{.underline}*. We conclude that it is in
    the public interest to designate Western Wireless as an ETC in those
    areas of the Pine Ridge Reservation that are served by rural
    telephone companies.[^26] Western Wireless has made a threshold
    demonstration that its service offering fulfills several of the
    underlying federal policies favoring competition and the provision
    of affordable telecommunications service to consumers. We note that
    tribal members residing on the Pine Ridge Reservation may face
    impediments to affordable telecommunications service that may be
    addressed by the introduction of wireless service. In addition, we
    note that Western Wireless has actively sought the participation of
    the tribe in formulating its service package and has entered into an
    agreement with the Oglala Sioux Tribe to specifically address the
    telecommunications needs of the Pine Ridge Reservation.[^27]

12. An important goal of the Act is to open local telecommunications
    markets to competition.[^28] Designation of qualified ETCs promotes
    competition and benefits consumers by increasing customer choice,
    innovative services, and new technologies. Competition will allow
    tribal members on the Pine Ridge Reservation to choose service based
    on pricing, service quality, customer service, and service
    availability.[^29] In addition, we find that the provision of
    competitive service will facilitate universal service to the benefit
    of tribal members on the Pine Ridge Reservation by creating
    incentives to ensure that quality services are available at "just,
    reasonable, and affordable rates."[^30]

13. Granting Western Wireless ETC status also will serve the public
    interest by removing impediments to increasing subscribership on the
    Reservation. In the *Twelfth Report and Order*, the Commission noted
    that along with depressed economic conditions and low per capita
    incomes, the following factors have been identified as impediments
    to subscribership on tribal lands: (1) the cost of basic
    service; (2) the cost of intrastate toll service (due to limited
    local calling areas); (3) inadequate telecommunications
    infrastructure and the cost of line extensions and facilities
    deployment in rural areas; and (4) lack of competitive service
    providers offering alternative technologies.[^31] The record
    indicates that such impediments to subscribership exist on the Pine
    Ridge Reservation. For example, although parties vary in their
    estimate of telephone penetration rates on the Pine Ridge
    Reservation, it is clear that subscribership on the reservation is
    substantially lower than the national average of approximately 94
    percent.[^32] As the Commission noted in the *Twelfth Report and
    Order*, the lower-than-average subscribership levels on tribal lands
    are largely due to the lack of access to and/or affordability of
    telecommunications services in these areas.[^33]

14. We believe the designation of Western Wireless as an ETC will
    increase subscribership by providing to tribal members on the Pine
    Ridge Reservation substantial benefits that are not available from
    the incumbent carriers.[^34] For example, Western Wireless will
    provide an expanded local calling area to enable tribal members on
    the reservation who may currently pay toll charges to reach local
    government offices, health care providers, and family outside of the
    incumbent carrier's local calling area.[^35] This will substantially
    enhance the affordability of service to many tribal members living
    on the reservation.[^36] In addition, wireless service may provide a
    viable technological alternative for those tribal members residing
    in the most remote areas of the reservation that cannot afford the
    cost of expensive line extensions. We find support for this
    conclusion in Western Wireless' assertion that of over 1,000
    customers that have signed up for its service on the Pine Ridge
    Reservation, approximately 42 percent had no prior telephone
    service.[^37]

15. We reject the general argument that rural areas, such as the Pine
    Ridge Reservation, are not capable of sustaining competition for
    universal service support. In this case, parties have presented no
    evidence that designation of an additional ETC in areas served by
    rural telephone companies will reduce investment in infrastructure,
    raise rates, or reduce service quality to consumers in rural
    areas.[^38] To the contrary, we believe that competition may provide
    incentives to the incumbent to implement new operating efficiencies,
    lower prices, and offer better service to customers. Although we
    recognize that some rural areas may in fact be incapable of
    sustaining more than one ETC, no evidence has been presented to
    demonstrate that this is the case on the Pine Ridge Reservation. In
    addition, we note that only a small portion of the total number of
    lines served by the three rural telephone companies at issue are
    located within the boundaries of the reservation.[^39] Moreover, the
    federal universal service support mechanisms support all lines
    served by ETCs in high-cost areas. Therefore, to the extent that
    Western Wireless provides new lines to currently unserved consumers
    or second lines to existing wireline subscribers, it will have no
    impact on the amount of universal service support available to the
    incumbent rural telephone company for those lines that it continues
    to serve.[^40]

16. In establishing a public interest requirement for those areas served
    by rural telephone companies, we believe Congress was concerned that
    consumers in rural areas continue to be adequately served should the
    incumbent carrier exercise its option to relinquish its ETC
    designation under section 214(e)(4).[^41] We are not presently
    persuaded by the record before us that the incumbent rural telephone
    companies will be forced to relinquish their ETC designation or
    withdraw service altogether to tribal members as a result of Western
    Wireless' designation as an ETC on the Pine Ridge Reservation.

17. *[Designated Service Area]{.underline}.* We designate Western
    Wireless as an ETC for a service area that consists of tribal
    members residing on the Pine Ridge Reservation.[^42] This
    designation is consistent with our conclusion in the *Pine Ridge
    Jurisdictional Order* that we have jurisdiction under section
    214(e)(6) only over Western Wireless' service to tribal members
    residing on the Pine Ridge Reservation.[^43] The designated service
    area differs from the study areas of three rural telephone companies
    (Fort Randall, Golden West, and Great Plains) in as much as these
    study areas extend both beyond the boundaries of the Reservation and
    to non-tribal members residing on the Reservation. This modification
    is necessary, however, because under section 214(e)(6) the
    Commission's authority to designate carriers as ETCs is limited to
    areas in which the state does not have jurisdiction. As a result,
    the Commission's authority to designate Western Wireless as an ETC
    in this instance is limited to those tribal members residing within
    the boundaries of the Pine Ridge Reservation.

18. We reject the contention of a few parties that the Commission must
    consult with the South Dakota Commission before designating Western
    Wireless as an ETC for a service area that differs from the rural
    telephone company's study area.[^44] We conclude that the
    federal-state process in section 214(e)(5) contemplates situations
    in which only one entity, either the state commission or this
    Commission, has the authority to designate the rural telephone
    company's entire study area as the ETC's service area.[^45] The
    statute does not address circumstances in which an existing study
    area for a rural carrier may extend beyond jurisdictional
    boundaries, and in which more than one designating entity might be
    involved in establishing the service area. In any event, we do not
    believe that Congress envisioned that the designating entity might
    need to involve another regulatory body, or seek its permission,
    before designating an ETC for a service area otherwise lying wholly
    within its jurisdiction, or that a regulatory body without
    jurisdiction over a carrier could interfere with the designating
    entity's authority to designate that carrier an additional ETC
    within its own jurisdictional authority. In addition, we note that
    the Commission rule and process cited by the South Dakota Commission
    and other commenters, as set forth in section 54.207 of the
    Commission's rules, was established prior to the adoption of section
    214(e)(6).[^46] This rule therefore did not contemplate the current
    situation in which the Commission, in the absence of state
    jurisdiction over a carrier, has a statutory obligation to be the
    sole designating entity under section 214(e)(6).[^47]

19. To the extent that commenters are concerned that state commissions
    have an opportunity to express any concerns regarding the designated
    service area, we note that the South Dakota Commission has been
    given ample opportunity to participate in this proceeding. Under the
    procedures established in the *Twelfth Report and Order*, the
    Commission has ensured that the South Dakota Commission received
    notice of Western Wireless' petition for designation as an ETC and
    has been provided with an opportunity to participate in this
    proceeding.[^48] Pursuant to the guidelines established in the
    *Twelfth Report and Order*, the Bureau released, and published in
    the Federal Register, a public notice establishing the pleading
    cycle for Western Wireless' designation request.[^49] In addition,
    the public notice was overnight-mailed directly to the South Dakota
    Commission to ensure that the state commission was notified of the
    notice and comment period. This process is specifically designed to
    notify and encourage participation by the states. In fact, the South
    Dakota Commission has filed comments in this proceeding that we have
    taken into consideration.[^50]

20. In addition, as the Commission concluded in *Universal Service
    Order*, the primary objective in retaining the rural telephone
    company's study area as the designated service area of a competitive
    ETC is to ensure that competitors will not be able to target only
    the customers that are the least expensive to serve and thus
    undercut the incumbent carrier's ability to provide service.[^51] We
    therefore also note that rural telephone companies now have the
    option of disaggregating and targeting high-cost support below the
    study area level so that support will be distributed in a manner
    that ensures that the per-line level of support is more closely
    associated with the cost of providing service.[^52] Therefore, any
    concern regarding "cream-skimming" of customers that may arise in
    designating a service area that does not encompass the entire study
    area of the rural telephone company has been substantially
    eliminated.

21. Finally, we reject the contention of some commenters that Western
    Wireless is precluded by the *Twelfth Report and Order* from seeking
    designation from this Commission due to its pending designation
    request before the South Dakota Commission for service areas outside
    the Pine Ridge Reservation.[^53] In so doing, we note that Western
    Wireless has removed the study areas of Golden West and Great
    Plains, which encompass the vast majority of the Pine Ridge
    Reservation, from its request for designation before the South
    Dakota Commission.[^54] It appears, however, that a small portion of
    Fort Randall's study area is subject to both the designation
    proceedings before this Commission and the South Dakota
    Commission.[^55] To the extent that this overlap exists, we conclude
    that such overlap is *de minimis*.[^56] Accordingly, we find that
    there is little potential for duplication of efforts by this
    Commission and the South Dakota Commission. For these reasons, we
    find that any *de minimis* overlap due to Fort Randall's study area
    would not preclude us from considering Western Wireless' petition.

# anti-drug abuse act certification

22. Pursuant to section 5301 of the Anti-Drug Abuse Act of 1988, no
    applicant is eligible for any new, modified, or renewed instrument
    of authorization from the Commission, including authorizations
    issued pursuant to section 214, unless the applicant certifies that
    neither it, nor any party to its application, is subject to the
    denial of federal benefits, including Commission benefits.[^57]
    Western Wireless has provided a certification indicating that no
    party to its petition is subject to a denial of federal benefits,
    including Commission benefits, pursuant to section 5301 of the
    Anti-Drug Abuse Act of 1988.[^58]

# ordering clauseS

23. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in sections 1, 4, and 214(e)(6) of the Communications Act of 1934,
    as amended, 47 U.S.C. §§ 151, 154, and 214(e)(6), Western Wireless
    Corporation IS DESIGNATED AN ELIGIBLE TELECOMMUNICATIONS CARRIER for
    service to the tribal members on the Pine Ridge Reservation in South
    Dakota, as discussed herein.

24. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and
    Order SHALL BE transmitted by the Common Carrier Bureau to the
    Universal Service Administrative Company.

    FEDERAL COMMUNICATIONS COMMISSION

    Magalie Roman Salas Secretary

DISSENTING STATEMENT OF

**COMMISSIONER KEVIN J. MARTIN**

*Re: Federal-State Joint Board on Universal Service; Western Wireless
Corporation Petition for Designation as an Eligible Telecommunications
Carrier for the Pine Ridge Reservation in South Dakota*, Memorandum
Opinion and Order, CC Docket No. 96-45.

I dissent from the Commission's determination that the South Dakota
Public Utilities Commission lacks jurisdiction to designate Western
Wireless as an eligible telecommunications carrier (ETC) in its service
to Indians on the Pine Ridge Reservation. Section 214(e)(6) states that
the Commission may designate as an ETC "a common carrier providing
telephone exchange service and exchange access that is not subject to
the jurisdiction of a State commission." 47 U.S.C. § 214(e)(6). As the
Commission acknowledges, Congress added this provision based on concerns
that some Indian controlled carriers had been unable to obtain a forum
in which to seek ETC status due to limitations on the jurisdiction of
particular State commissions. *See* *Federal-State Joint Board on
Universal Service; Promoting Deployment and Subscribership in Unserved
and Underserved Areas, Including Tribal and Insular Areas*, Twelfth
Report and Order, Memorandum Opinion and Order, and Further Notice of
Proposed Rulemaking, 15 FCC Rcd 12208, ¶ 98 (2000). Congress thus
amended the statute to ensure that every carrier has some forum in which
to obtain ETC status and thereby receive universal service support.
*See* Pine Ridge Jurisdiction Order ¶ 3.

In my view, the Commission has taken a misguided approach to
effectuating Congress's intent. Rather than simply ensuring that
carriers have a place to go when State commissions or courts conclude
that a State lacks jurisdiction, the Commission has made itself the
arbiter of competing jurisdictional claims made by States and Indian
tribes. The Commission has chosen to displace State claims of
jurisdiction based on its own analysis of the merits, using "a
complicated and intensely fact-specific legal inquiry informed by
principles of tribal sovereignty and requiring the interpretation of
treaties, and federal Indian law and state law." Twelfth Report and
Order, 15 FCC Rcd ¶ 108. The Commission should refrain from making such
determinations. As a body devoted to the oversight of our nation's
communications, we have neither the experience, skill, nor authority to
make these complicated and contentious decisions regarding the power of
Indian tribes and States.

Moreover, despite the Commission's best efforts, its decision in this
case is fraught with legal and practical problems. Among other things,
we have set up a regime in which Western Wireless will receive universal
service funding for serving Indians but not non-Indians, even if they
live on the same land. This approach conflicts with our statutory
obligation to make ETC designations for a particular "service area,"
which, by statute, "means a geographic area." 47 U.S.C. § 214(e)(5). In
this case, the Orders even acknowledge that the State has jurisdiction
to make the designation with respect to some of the residents within the
service area. To the extent the Commission could not lawfully make a
designation for the entire geographic area, as its Orders conclude, it
bolsters my view that we should not be making designations in such cases
at all. Additionally, we have set up a regime in which different
carriers serving the same people will be regulated by different
entities, depending largely on whether the carrier has "consented to
tribal jurisdiction." Pine Ridge Jurisdiction Order ¶ 21. This regime
will only encourage forum shopping and make impossible any coherent
telecommunications policy on the reservation. Finally, in designating
Western Wireless as an ETC, we have made a public interest determination
that may differ from the one made by the South Dakota Commission, which
is in a superior position to assess the relevant local conditions.

I worry that this decision will only encourage more parties to come
before the Commission seeking to displace State claims of jurisdiction.
While Indian tribes may have legitimate claims of sovereignty in these
situations, both they and the States deserve a better forum than this
one to resolve their claims. I am convinced that the parties would be
far better served by resolving such claims through the legal process in
the courts and letting the Commission devote its limited resources to
issues of communications. Accordingly, I respectfully dissent.

[^1]: *Western Wireless Petition for Designation as an Eligible
    Telecommunications Carrier for the Pine Ridge Reservation in South
    Dakota*, filed January 19, 2001 (Western Wireless Petition). *See*
    47 U.S.C. § 214(e)(6). As we discuss below, a companion order
    released today explains our conclusion that the Commission has
    jurisdiction under section 214(e)(6) to make this ETC designation.

[^2]: 47 U.S.C. § 214(e)(1).

[^3]: 47 U.S.C. § 254(e).

[^4]: 47 U.S.C. § 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 service (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.

[^5]: 47 U.S.C. § 214(e)(2).

[^6]: 47 U.S.C. § 214(e)(6). *See Fort Mojave Telecommunications, Inc.,
    Gila River Telecommunications, Inc., San Carlos Telecommunications,
    Inc., and Tohono O'Odham Utility Authority as Eligible
    Telecommunications Carriers Pursuant to Section 214(e)(6) of the
    Communications Act*, Memorandum Opinion and Order, CC Docket No.
    96-45, 13 FCC Rcd 4547 (Com. Car. Bur. 1998); *Petition of
    Saddleback Communications for Designation as an Eligible
    Telecommunications Carrier Pursuant to Section 214(e)(6) of the
    Communications Act*, CC Docket No. 96-45, 13 FCC Rcd 22433 (Com Car.
    Bur. 1998).

[^7]: 47 U.S.C. § 214(e)(6).

[^8]: 47 U.S.C. § 214(e)(6).

[^9]: *Procedures for FCC Designation of Eligible Telecommunications
    Carriers Pursuant to Section 214(e)(6) of the Communications Act*,
    Public Notice, FCC 97-419 (rel. Dec. 29, 1997). In this Public
    Notice, the Commission delegated authority to the Chief of the
    Common Carrier Bureau to designate carriers as ETCs pursuant to
    section 214(e)(6).

[^10]: *Federal-State Joint Board on Universal Service; Promoting
    Deployment and Subscribership in Unserved Areas, Including Tribal
    and Insular Areas*, Twelfth Report and Order, Memorandum Opinion and
    Order, and Further Notice of Proposed Rulemaking, CC Docket No.
    96-45, 15 FCC Rcd 12208 at 12265, para. 115 (2000) (*Twelfth Report
    and Order*).

[^11]: *Twelfth Report and Order*, 15 FCC Rcd at 12267, para. 121.

[^12]: *See generally* Western Wireless Petition.

[^13]: Western Wireless Petition at 1-7.

[^14]: Western Wireless Petition at 19-29.

[^15]: *Western Wireless Corporation Petition for Designation as an
    Eligible Telecommunications Carrier for the Pine Ridge Reservation
    in South Dakota; Federal-State Joint Board on Universal Service*,
    Memorandum Opinion and Order, CC Docket No. 96-45, FCC 01-284 (rel.
    Oct. 5, 2001) (*Pine Ridge Jurisdictional Order*).

[^16]: 47 U.S.C. § 214(e)(1)(A). Pursuant to section 254(c), the
    Commission has defined those services that are to be supported by
    the federal universal service mechanisms to include: (1)
    single-party service; (2) voice grade access to the public switched
    network; (3) local usage; (4) Dual Tone Multifrequency (DTMF)
    signaling or its functional equivalent; (5) access to emergency
    services, including 911 and enhanced 911; (6) access to operator
    service; (7) access to interexchange services; (8) access to
    directory assistance; and, (9) toll limitation for qualifying
    low-income customers. 47 C.F.R. § 54.101(a).

[^17]: Western Wireless Petition at 19-20.

[^18]: Western Wireless Petition at 20-24.

[^19]: Western Wireless Petition at 20.

[^20]: Western Wireless Petition at 20.

[^21]: 47 U.S.C. § 214(e)(1)(A).

[^22]: Western Wireless Petition at 24.

[^23]: Western Wireless Petition at 24.

[^24]: Western Wireless Petition at 24.

[^25]: *Twelfth Report and Order*, 15 FCC Rcd at 12250, para. 79.

[^26]: Three rural telephone companies serve portions of the Pine Ridge
    Reservation. These include: Fort Randall Telephone Co. d/b/a Mount
    Rushmore Tel. Co. (Fort Randall), Great Plains Communications, Inc.
    (Great Plains), and Golden West Telecommunications, Inc. (Golden
    West).

[^27]: Western Wireless Petition at 2-7. *See also* Letter from John
    Yellow Bird Steele, President of the Oglala Sioux Tribe, to Michael
    Powell, Chairman of the FCC, dated March 12, 2001.

[^28]: 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 the 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).

[^29]: Western Wireless Petition at 27-28.

[^30]: 47 U.S.C. § 254(b)(1).

[^31]: *Twelfth Report and Order*, 15 FCC Rcd at 12220, para. 20.

[^32]: *See, e.g.*, Western Wireless Petition at 26 (indicating that the
    penetration rate on the reservation is less than 50%); Golden West
    Comments at 15-18 (indicating that approximately 73% of households
    on the reservation are subscribers).

[^33]: *Twelfth Report and Order*, 15 FCC Rcd at 12220, para. 20.

[^34]: *See* Letter from John W. Steele, Tribal Chairman of the Oglala
    Sioux Tribe, to Magalie Roman Salas, FCC, filed June 13, 2001
    (Oglala Sioux June 13 *ex parte*) (including 188 letters from
    members of the Oglala Sioux Tribe expressing satisfaction with
    Western Wireless' service offering and affordability).

[^35]: Western Wireless Petition at 28. *But see* Golden West Comments
    at 21-22 (contending that Golden West has an extremely large local
    calling area); Fort Randall at 6-7.

[^36]: Western Wireless Petition at 28.

[^37]: Western Wireless Reply Comments at 4.

[^38]: *See, e.g.*, Fort Randall Comments at 6-7; Golden West Comments
    at 13-15; Great Plains Comments at 8.

[^39]: Fort Randall Comments at 2 (indicating that 45 out of 6,317 lines
    in its study area are located on the Reservation); Golden West
    Comments at 3 (indicating that approximately one-quarter of the
    16,066 lines in its study area are located on the Reservation);
    Great Plains Comments at 2 (indicating that 121 out of 33,895 lines
    in its study area are located on the Reservation). *See also*
    Federal Universal Service Fund Size Projection and Contribution Base
    for the Third Quarter 2001, filed by the Universal Service
    Administrative Company on May 2, 2001 -- Appendix HC1.

[^40]: As noted above, Western Wireless indicates that nearly half of
    its customers on the Pine Ridge Reservation are new subscribers to
    the network.

[^41]: We note that even if the incumbent carrier determined that it no
    longer desired to be designated as an ETC, section 214(e)(4)
    requires the ETC seeking to relinquish its ETC designation to give
    advance notice to the Commission. Prior to permitting the ETC to
    cease providing universal service in an area served by more than one
    ETC, section 214(e)(4) requires that the Commission "ensure that all
    customers served by the relinquished carrier will continue to be
    served, and shall require sufficient notice to permit the purchase
    or construction of adequate facilities by any remaining eligible
    telecommunications carrier." The Commission may grant a period, not
    to exceed one year, within which such purchase or construction shall
    be completed. 47 U.S.C. § 214(e)(4).

[^42]: Western Wireless is therefore eligible to receive federal
    universal service support only for its provision of service to
    tribal members.

[^43]: *See generally Pine Ridge Jurisdictional Order*.

[^44]: *See, e.g.*, Golden West Comments at 12; South Dakota Commission
    Comments at 20-24. We note that the South Dakota Commission makes no
    substantive allegations that the designation of a service area that
    differs from the rural telephone company's study area will harm
    consumers in this case.

[^45]: *See Federal-State Joint Board on Universal Service; Western
    Wireless Corporation Petition for Designation as an Eligible
    Telecommunications Carrier in the State of Wyoming*, Memorandum
    Opinion and Order, CC Docket No. 96-45, DA 00-2896 (rel. Dec. 26,
    2000) at para. 24.

[^46]: *See* 47 C.F.R. § 54.207(d). When Congress first enacted section
    214(e) in 1996, the statute contained no provision for designation
    of carriers that were not subject to the jurisdiction of a state
    commission. As a result, such carriers had no access to a forum in
    which they could obtain ETC designation. In 1997, Congress amended
    the Act with the addition of section 214(e)(6) to correct this
    "oversight." 143 Cong. Rec. S12568 (daily ed. Nov. 13, 1997)
    (statement of Sen. McCain).

[^47]: Section 54.207(d) of the Commission's rules contemplates
    situations in which the Commission may order a carrier to provide
    service under section 214(e)(3). Pursuant to section 214(e)(3), the
    Commission, with respect to interstate services, and the state, with
    respect to intrastate services, may order a common carrier to
    provide the supported services to an unserved community. *See* 47
    U.S.C. § 214(e)(3).

[^48]: *Twelfth Report and Order*, 15 FCC Rcd at 12267, para. 120.

[^49]: *Common Carrier Bureau Seeks Comment on Western Wireless'
    Petition for Designation as an Eligible Telecommunications Carrier
    for the Pine Ridge Reservation in South Dakota*, Public Notice, CC
    Docket No. 96-45, DA 01-278 (rel. Feb. 2, 2001). *See also* 66 Fed.
    Reg. 9705 (Feb. 9, 2001).

[^50]: *See* South Dakota Commission Comments.

[^51]: *Federal-State Joint Board on Universal Service Order*, Report
    and Order, CC Docket No. 96-45, 12 FCC Rcd 8776 at 8881, para. 189
    (1997) (*Universal Service Order*) (subsequent history omitted).

[^52]: *Federal-State Joint Board on Universal Service,
    Multi-Association Group (MAG) Plan for Regulation of Interstate
    Services of Non-Price Cap Incumbent Local Exchange Carriers and
    Interexchange Carriers*, Fourteenth Report and Order, Twenty-Second
    Order on Reconsideration, and Further Notice of Proposed Rulemaking
    in CC Docket No. 96-45, and Report and Order in CC Docket No.
    00-256, FCC 01-157 at paras. 144-164 (rel. May 23, 2001) (*Rural
    Task Force Order*).

[^53]: *See, e.g.*, Golden West Comments at 5-8; Great Plains Comments
    at 4; NTCA Comments at 2. *See also Twelfth Report and Order*, 15
    FCC Rcd at 12268-69, para. 126 ("we will not make a jurisdictional
    determination under section 214(e)(6) if the affected state
    commission has initiated a proceeding in response to a designation
    request under section 214(e)(2).").

[^54]: Letter from David Sieradzki, Counsel for Western Wireless, to
    Magalie Roman Salas, FCC, filed June 5, 2001. *See also* Letter from
    David Sieradzki, Counsel for Western Wireless, to Magalie Roman
    Salas, FCC, filed June 1, 2001. Letter from David Sieradzki, Counsel
    for Western Wireless, to Magalie Roman Salas, FCC, filed July 24,
    2001 at 5.

[^55]: Letter from Bruce Hanson, Fort Randall Telephone Company, to
    Magalie Roman Salas, FCC, filed July 10, 2001 (Fort Randall July 10
    *ex parte*).

[^56]: For example, Fort Randall indicates that it provides service to
    only 47 customers on the Pine Ridge Reservation. *See* Fort Randall
    July 10 *ex parte*.

[^57]: 47 C.F.R. § 1.2002(a); 21 U.S.C. § 862.

[^58]: Western Wireless Petition at 30, App. H.