**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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| Request for Review by            | ) | CC Docket No. 97-21          |
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| ABC Cellular Corporation         | * |                              |
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| Page Now, Inc./ ABC Paging, Inc. | * |                              |
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ORDER

**Adopted: December 16, 2002 Released: December 17, 2002**

By the Deputy Chief, Wireline Competition Bureau:

# INTRODUCTION

1.  ABC Cellular Corporation Page Now, Inc./ABC Paging, Inc. (ABC
    Cellular) filed the above-captioned request for review of a decision
    issued by the Universal Service Administrative Company
    (Administrator) on April 19, 2001.[^1] Pursuant to section 54.719(c)
    of the Commission's rules,[^2] this request seeks review of the
    Administrator's denial of ABC Cellular's Letter of Appeal requesting
    that the Administrator accept ABC Cellular's late-filed revised Form
    499-Q.[^3] The Request for Review asks the Commission to direct the
    Administrator to accept ABC Cellular's late-filed Form 499-Q. For
    the reasons set forth below, we grant ABC Cellular's Request for
    Review.

# BACKGROUND

**A. Relevant Law Governing Universal Service Contributions**

2.  Providers of interstate telecommunications services must contribute
    to the universal service support mechanism to ensure that all
    Americans have access to affordable telecommunications services.[^4]
    Contributions to universal service are based on a percentage of the
    contributor's interstate and international end-user
    telecommunications revenues. This percentage is called the
    contribution factor, which is determined each quarter by the
    Commission.[^5] Contributors must submit their revenue information
    to the Administrator using a Form 499-A and a Form 499-Q, which are
    the Telecommunications Reporting Worksheets. Contributors must file
    a Form 499-A in April to report their annual revenues from the
    previous year and file a Form 499-Q on a quarterly basis, on the
    first day of February, May, August, and November, to report their
    revenues from the prior quarter.[^6] Any service providers that have
    universal service contributions totaling less than \$10,000 within a
    particular year are not required to submit contributions or
    Telecommunications Reporting Worksheets for that year.[^7]

3.  If a contributor discovers errors in a Form 499-Q that it has
    submitted, then the contributor may file a revised Form 499-Q.
    Revised Form 499-Q filings must be submitted by the filing date for
    the next Form 499-Q filing.[^8] The contributor may also true-up
    errors from Form 499-Qs when it files the Form 499-A the following
    year.[^9] If a contributor sells its assets to another company, the
    successor company becomes responsible for filing revenue information
    and paying contributions.[^10]

    **B. ABC Cellular's Request for Review**

4.  ABC Cellular requests that the Commission direct the Administrator
    to accept ABC Cellular's late-filed revised Form 499-Q, which
    rectifies errors made in its original Form 499-Q submitted on April
    20, 2001 (April 2001 Form 499-Q). Upon the Administrator's
    acceptance of such form, ABC Cellular also requests that the
    Administrator credit ABC Cellular's account by \$14,403.73, the
    contribution amount assessed by the Administrator based on the data
    contained in the April 2001 Form 499-Q.[^11]

5.  In April 2001, ABC Cellular filed its completed April 2001 Form
    499-Q.[^12] ABC Cellular explains that it discovered that an
    employee had erroneously reported all of its revenues as interstate
    in the April 2001 Form 499-Q filing when it received an invoice on
    June 26, 2001 from the Administrator.[^13] ABC Cellular claims that
    it filed the revised Form 499-Q after the due date because the
    Administrator delayed telling ABC Cellular to file a revised Form
    499-Q to correct the error.[^14] ABC Cellular contends that when it
    finally learned that it should file a revised Form 499-Q to resolve
    the error, ABC Cellular promptly submitted the revised Form 499-Q on
    September 6, 2001, over a month after the due date of July 31,
    2001.[^15] On August 1, 2001, prior to filing the revised Form
    499-Q, ABC Cellular sold its paging services business to City Page &
    Cellular Services, Inc. (City Page).[^16] In accordance with the
    Form 499-A Instructions, ABC Cellular indicates that City Page, the
    successor company, became responsible for reporting ABC Cellular's
    2001 revenues in the Form 499-A filing due April 1, 2002.[^17]

6.  The Administrator rejected the revised Form 499-Q in an initial
    decision and on appeal because it was late-filed.[^18] In the
    Administrator's decision on appeal, it advised ABC Cellular that
    City Page, the successor company, should file the Form 499-A in
    April 2002, which would true-up the errors made in ABC Cellular's
    April 2001 Form 499-Q.[^19]

7.  ABC Cellular contends that the Administrator erred in rejecting ABC
    Cellular's revised Form 499-Q because the Administrator failed to
    seek guidance from the Commission, in accordance with section
    54.702(c) of the Commission's rules,[^20] before issuing its
    decision. Alternatively, ABC Cellular argues that a waiver of the
    deadline to file the revised Form 499-Q is warranted because ABC
    Cellular made good faith efforts to timely file the revised Form
    499-Q.[^21]

# DISCUSSION 

8.  We conclude that a waiver of the revised Form 499-Q deadline is
    warranted for the reasons discussed below.[^22] Accordingly, we
    direct the Administrator to accept ABC Cellular's late-filed revised
    Form 499-Q. The Commission's rules may be waived when good cause is
    demonstrated.[^23] As noted by the Court of Appeals for the D.C.
    Circuit, however, agency rules are presumed valid.[^24] The
    Commission may exercise its discretion to waive a rule where the
    particular facts make strict compliance inconsistent with the public
    interest.[^25] Additionally, the Commission may take into account
    considerations of hardship, equity, or more effective implementation
    of overall policy on an individual basis.[^26] Waiver of the
    Commission's rules is therefore appropriate only if special
    circumstances warrant a deviation from the general rule, and such a
    deviation will serve the public interest.[^27]

9.  We find that good cause exists to grant the waiver. In particular,
    we find that the sale of ABC Cellular's paging business to City
    Page, and City Page's subsequent failure to file its Form 499-A
    presents special circumstances.[^28] Generally, contributors have
    two opportunities to correct errors made in a Form 499-Q: (1) filing
    a revised Form 499-Q by the filing date of the next Form 499; or (2)
    filing a Form 499-A the subsequent year that reports the prior
    year's revenues.[^29] In the instant case, the sale of ABC
    Cellular's paging business to City Page eliminated ABC Cellular's
    opportunity to true-up its Form 499-Q errors by filing a Form 499-A
    in April 2002. Although City Page should have corrected ABC
    Cellular's errors by filing a Form 499-A in April 2002, it failed to
    do so. Thus, without a waiver, ABC Cellular will be deprived of its
    opportunity to correct the errors made on its April 2001 Form 499-Q.

10. We also conclude that a waiver of the revised Form 499-Q deadline
    would serve the public interest by ensuring that ABC Cellular's
    contributions to universal service are equitable. Under the
    statutory requirements, the mechanisms for universal service
    contributions must be specific, predictable and sufficient, and
    contributions to the universal service fund must be made on an
    equitable and non-discriminatory basis.[^30] Absent a waiver, ABC
    Cellular would be required to contribute an erroneous amount to
    support universal service, which we believe would be inconsistent
    with the requirement that contributions be equitable. Accordingly,
    we find that granting the waiver would be in the public interest.

11. The Commission has recognized in other circumstances that the waiver
    of a deadline may be appropriate in circumstances where application
    of the deadline would impose a significant hardship on
    applicants.[^31] Our action in this Order is consistent with other
    orders in which the Bureau has granted waivers of deadlines when the
    petitioner experienced circumstances beyond its control.[^32] In
    this case, although ABC Cellular had the ability to meet the first
    deadline, it did not have the ability to meet the second deadline.

12. Finally, we disagree with ABC Cellular's contention that the
    Administrator exceeded its authority by rejecting ABC Cellular's
    revised Form 499-Q without first consulting with the
    Commission.[^33] We find that the Administrator had sufficient
    guidance with regard to revised Telecommunications Reporting
    Worksheets and did not need further guidance from the Commission.
    Although the Commission's rules do not specifically address revised
    Form 499-Q filings, the Form 499-Q Instructions clearly state that
    revised filings must be submitted by the next Form 499 filing
    deadline.[^34] The Instructions for the Form 499-A and Form 499-Q
    also state that the successor company becomes responsible for
    contributions after the transfer and/or sale of the contributor's
    assets.[^35] Accordingly, we find that the Administrator properly
    relied on the Form 499-Q and Form 499-A Instructions in reaching its
    conclusion and did not require guidance from the Commission.

    **IV. ORDERING CLAUSES**

13. Accordingly, IT IS ORDERED that, pursuant to authority contained in
    sections 1, 4, and 254 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151, 154, 254, and the authority delegated
    under sections 0.91, 0.291, and 1.3 of the Commission's rules, 47
    C.F.R. §§ 0.91, 0.291, 1.3, the waiver request filed by ABC Cellular
    on June 17, 2002 is GRANTED.

14. IT IS FURTHER ORDERED that a copy of this Order SHALL BE transmitted
    to the Universal Service Administrative Company.

    FEDERAL COMMUNICATIONS COMMISSION

    Carol E. Mattey

Deputy Chief, Wireline Competition Bureau

[^1]: Request for Review by ABC Cellular Corporation Page Now, Inc./ ABC
    Paging, Inc. at 1, filed June 17, 2002 (Request for Review).

[^2]: 47 C.F.R. § 54.719(c) (providing that any person aggrieved by an
    action taken by a division of the Administrator may seek review from
    the Commission).

[^3]: *See* Request for Review at 5-6.

[^4]: *See* 47 U.S.C. § 254.

[^5]: *See* 47 C.F.R. § 54.709(a).

[^6]: *See* Instructions for Completing the Worksheet for Filing
    Contributions to Telecommunications Relay Service, Universal
    Service, Number Administration, and Local Number Portability Support
    Mechanisms at 8 (Form 499-A Instructions); *see also* Instructions
    for Completing the Quarterly Worksheet for Filing Contributions to
    Universal Service Support Mechanisms at 8 (Form 499-Q Instructions).

[^7]: 47 C.F.R. § 54.708.

[^8]: *Federal-State Joint Board on Universal Service*, *Petition for
    Reconsideration filed by AT&T*, Report and Order and Order on
    Reconsideration, 16 FCC Rcd 5748, 5753, n.22 (2001) (*Form 499-Q
    Order*); *see also* Form 499-A Instructions at 9; Form 499-Q
    Instructions at 9.

[^9]: *See Form 499-Q Order*, 16 FCC Rcd at 5752-5753, para. 12.

[^10]: *See* Form 499-Q Instructions at 9; Form 499-A Instructions at 9;
    *see also*
    [www.universalservice.org/forms/499reportreq.asp](http://www.universalservice.org/forms/499reportreq.asp)
    (setting forth the Form 499 filing requirements for companies
    involved in the transfer and/or sale of assets).

[^11]: Request for Review at 3, 13.

[^12]: Request for Review at 3. According to ABC Cellular, its universal
    service contributions have been less than \$10,000 in the past,
    exempting it from paying contributions and filing Telecommunications
    Reporting Worksheets. *See* Request for Review at 2.

[^13]: Request for Review at 3-4. The invoice was in the amount of
    \$26,332.71, a portion of which is attributed to charges from a
    previous Form 499-A filing that is unrelated to this case. As noted
    above, ABC Cellular seeks a credit of \$14,403.73 from the
    Administrator. *See* *supra*, para. 4.

[^14]: Request for Review at 4. ABC Cellular states that it believes
    that this delay occurred because the Administrator was transitioning
    billing responsibilities to a new vendor, PricewaterhouseCoopers, at
    that time. *See* Request for Review at 4.

[^15]: Request for Review at 4-5. *See* *also* Request for Review, Exh.
    6 at 1 (Administrator noting that ABC Cellular failed to file its
    revised Form 499-Q prior to the July 31, 2001 deadline).

[^16]: Request for Review at 3. *See* Request for Review, Exh. 2
    (includes a copy of the executed Bill of Sale and Assignment)*.*

[^17]: Request for Review at 12.

[^18]: *See* Request for Review at 5-6.

[^19]: *See* Request for Review, Exh. 1. at 2.

[^20]: *See* 47 C.F.R. § 54.702(c).

[^21]: Request for Review at 8.

[^22]: Although the Request for Review appears to request a waiver of
    section 54.709(d) of the Commission's rules, we will treat ABC
    Cellular's request as a waiver of the filing deadline in the Form
    499-Q Instructions. *See* ABC Cellular Petition at 6-8. As a result,
    we do not find it necessary to address ABC Cellular's argument that
    section 54.709(d) does not apply to revised filings. *See* Request
    for Review at 6-7.

[^23]: 47 C.F.R. § 1.3.

[^24]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1159 (D.C. Cir. 1969), *cert.
    denied*, 409 U.S. 1027 (1972).

[^25]: *Northeast Cellular Telephone Co. v. FCC*, 897 F.2d at 1166.

[^26]: *WAIT Radio*, 418 F.2d at 1159; *Northeast Cellular*, 897 F.2d at
    1166.

[^27]: *WAIT Radio*, 418 F.2d at 1159.

[^28]: *See* E-Mail from Tracey Beaver, Universal Service Administrative
    Company, to Jennifer Gorny, Federal Communications Commission, dated
    September 20, 2002 (confirming that City Page has never filed a Form
    499-A).

[^29]: *See* *supra,* para. 3.

[^30]: 47 U.S.C. § 254.

[^31]: *See, e.g.*, *Federal-State Joint Board on Universal Service,
    Universal Service Support for Eligible Schools and Libraries, Year 3
    Filing Window*, Order, CC Docket No. 96-45, 15 FCC Rcd 13932 (rel.
    June 8, 2000) (directing the Administrator's Schools and Libraries
    Division to treat as timely filed, the FCC Forms 471 that applicants
    were unable to file prior to the close of the Year 3 filing window
    due to a network server outage).

[^32]: *See, e.g., Federal-State Joint Board on Universal Service,
    Petitions for Waiver of Sections 54.314(d) and 54.307(c) of the
    Commission's Rules and Regulations*, Order, CC Docket No. 96-45, DA
    02-3316 (rel. Dec. 4, 2002) (*RFB Cellular Order*); *Chicago Public
    Schools, Federal-State Joint Board on Universal Service, Changes to
    the Board of Directors of the National Exchange Carrier
    Association*, Order, CC Docket Nos. 96-45, 97-21, 17 FCC Rcd 17086
    (rel. Sept. 19, 2002) (*Chicago Public Schools Order*);
    *Federal-State Joint Board on Universal Service, Petition for Waiver
    of Section 54.809(c) of the Commission's Rules and Regulations*,
    Order, CC Docket No. 96-45, DA 01-1911, 16 FCC Rcd 15275 (2001).

[^33]: *See* Request for Review at 9-13.

[^34]: *See* Form 499-Q Instructions at 9. Because the Form 499-Q is
    filed quarterly, service providers have three months to file
    revisions.

[^35]: *See* Form 499-A Instructions at 9; *see also* Form 499-Q
    Instructions at 9.