**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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| TracFone Wireless, Inc.          |   |                                 |
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| Petition for Designation as an   | * |                                 |
| Eligible Telecommunications      | ) |                                 |
| Carrier in the State of New York | * |                                 |
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| Petition for Designation as an   |   |                                 |
| Eligible Telecommunications      | * |                                 |
| Carrier in the State of Florida  | * |                                 |
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| Petition for Designation as an   | * |                                 |
| Eligible Telecommunications      | * |                                 |
| Carrier in the Commonwealth of   |   |                                 |
| Virginia                         | * |                                 |
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| Petition for Designation as an   | ) |                                 |
| Eligible Telecommunications      | * |                                 |
| Carrier in the State of          | * |                                 |
| Connecticut                      |   |                                 |
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| Petition for Designation as an   | * |                                 |
| Eligible Telecommunications      | ) |                                 |
| Carrier in the Commonwealth of   | * |                                 |
| Massachusetts                    | * |                                 |
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| Petition for Designation as an   | * |                                 |
| Eligible Telecommunications      | * |                                 |
| Carrier in the State of Alabama  | ) |                                 |
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| Petition for Designation as an   | * |                                 |
| Eligible Telecommunications      |   |                                 |
| Carrier in the State of North    | * |                                 |
| Carolina                         | * |                                 |
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| Petition for Designation as an   | * |                                 |
| Eligible Telecommunications      | * |                                 |
| Carrier in the State of          |   |                                 |
| Tennessee                        | * |                                 |
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| Petition for Designation as an   | ) |                                 |
| Eligible Telecommunications      | * |                                 |
| Carrier in the State of Delaware | * |                                 |
| for the Limited Purpose of       |   |                                 |
| Offering Lifeline Service to     | * |                                 |
| Qualified Households             | * |                                 |
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| Petition for Designation as an   | * |                                 |
| Eligible Telecommunications      | * |                                 |
| Carrier in the State of New      |   |                                 |
| Hampshire for the Limited        | * |                                 |
| Purpose of Offering Lifeline     | * |                                 |
| Service to Qualified Households  | ) |                                 |
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| Petition for Designation as an   | * |                                 |
| Eligible Telecommunications      |   |                                 |
| Carrier in the Commonwealth of   | * |                                 |
| Pennsylvania for the Limited     | * |                                 |
| Purpose of Offering Lifeline     | ) |                                 |
| Service to Qualified Households  | * |                                 |
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| Petition for Designation as an   |   |                                 |
| Eligible Telecommunications      | * |                                 |
| Carrier in the District of       | * |                                 |
| Columbia for the Limited Purpose | ) |                                 |
| of Offering Lifeline Service to  | * |                                 |
| Qualified Households             | * |                                 |
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+----------------------------------+---+---------------------------------+

**ORDER**

**Adopted: March 4, 2009 Released: March 5, 2009**

By the Commission:

# INTRODUCTION

1.  In this order, we grant a petition for modification filed by
    TracFone Wireless, Inc. (TracFone). TracFone seeks modification of a
    condition imposed as part of the Commission's grant of TracFone's
    request for forbearance allowing it to be designated as an eligible
    telecommunications carrier (ETC) for the purposes of providing
    low-income universal service support to its customers under the
    Lifeline program.[^1] Specifically, we grant TracFone's request to
    modify the requirement that TracFone obtain a certification from
    each public safety answering point (PSAP) where it provides Lifeline
    service confirming that TracFone provides its customers with access
    to basic and E911 service.[^2] TracFone must still request such
    certification from each PSAP within its service area; however, if,
    within 90 days of TracFone's request, a PSAP has not provided the
    certification and the PSAP has not made an affirmative finding that
    TracFone does not provide its customers with access to 911 and E911
    service within the PSAP's service area, TracFone may self-certify
    that it meets the basic and E911 requirements. Grant of this request
    will allow TracFone to provide Lifeline service to low-income
    consumers within its service areas in a timely manner, while also
    ensuring that TracFone's Lifeline customers have access to necessary
    911 services.

# BACKGROUND

1.  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."[^3] Pursuant to section
    214(e)(1) of the Act, a common carrier designated as an ETC must
    offer the services supported by the federal universal service
    mechanisms either using its own facilities, or a combination of its
    own facilities and resale of another carrier's services.[^4]

2.  TracFone provides prepaid wireless services on a resale basis only,
    rather than providing service over its own facilities.[^5] On
    September 8, 2005, the Commission conditionally granted TracFone's
    request for forbearance from the facilities-based requirement of
    section 214(e)(1) of the Act.[^6] Among other things, the
    forbearance grant was conditioned on the requirement that TracFone
    obtain a certification from each PSAP where it provides Lifeline
    service confirming that TracFone provides its customers with access
    to basic and E911 service.[^7] On April 11, 2008, the Commission
    conditionally designated TracFone an ETC for the purpose of
    receiving Lifeline support only in its licensed service areas in New
    York, Virginia, Connecticut, Massachusetts, Alabama, North Carolina,
    Tennessee, Delaware, New Hampshire, Pennsylvania,[^8] and the
    District of Columbia.[^9] In the *TracFone ETC Designation Order,*
    the Commission declined TracFone's request to eliminate the
    condition that TracFone obtain the required certification from each
    PSAP where it will provide Lifeline service.[^10]

3.  On November 21, 2008, TracFone filed the instant petition seeking to
    modify the PSAP certification requirements. Specifically, TracFone
    requests that, if a PSAP does not provide the requisite
    certification within 90 days of a request for such certification
    from TracFone, TracFone would be allowed to self-certify that its
    customers will have access to 911 and E911 without regard to
    activation status or availability of prepaid minutes.[^11]

# Discussion

4.  As the Commission found in the *TracFone ETC Designation Order*,
    TracFone's universal service Lifeline offering will provide a
    variety of benefits to Lifeline-eligible consumers, including
    increased consumer choice, high-quality service offerings, and
    mobility.[^12] In addition, the prepaid feature of TracFone's
    service, which essentially functions as a toll control feature, may
    be an attractive alternative to Lifeline-eligible consumers who are
    concerned about usage charges or long-term contracts. Therefore, we
    find that the public interest is served by allowing TracFone to
    offer its Lifeline service to consumers as quickly as possible,
    while also ensuring that its consumers have access to necessary
    emergency services.

5.  The Commission has twice stressed the importance of ensuring that
    TracFone's Lifeline customers have access to 911 and E911 services
    through the PSAP certification process.[^13] We affirm that TracFone
    must continue to comply with this requirement and seek certification
    from the PSAPs within its service area. To ensure that the benefits
    of Lifeline service are made available to TracFone's customers in a
    timely manner, however, we grant TracFone's request to allow it to
    self-certify compliance with the 911 and E911 availability condition
    if, within 90 days of TracFone's request, a PSAP has not provided
    the certification and the PSAP has not made an affirmative finding
    that TracFone does not provide its customers with access to 911 and
    E911 service within the PSAP's service area.[^14] In making a
    request for certification, TracFone must notify the PSAP that
    TracFone has the option to self-certify within 90 days of the
    request if the PSAP has not provided the certification and the PSAP
    has not made an affirmative finding that TracFone does not provide
    its customers with access to 911 and E911 service. TracFone may not
    self-certify compliance until 90 days after it has provided a PSAP
    with notification of the 90-day self-certification period adopted in
    this order. TracFone also may not make such a self-certification
    until it has provided a PSAP with all of the information and/or
    equipment requested by the PSAP in analyzing TracFone's ability to
    provide 911 and E911 service to its customers. If TracFone makes
    such a self-certification, TracFone must obtain from each of its
    underlying carriers that provide service to TracFone in the area
    served by that PSAP certification that the carriers route 911 and
    E911 calls from TracFone customers to the PSAP in the same manner
    that they route 911 and E911 calls from their own customers.
    TracFone is required to retain such underlying carrier
    certifications and provide them to the Commission upon request.
    TracFone must provide PSAPs with copies of any self-certifications
    at the time they are filed. If after TracFone makes a
    self-certification a PSAP finds that TracFone does not provide its
    customers with 911 and E911 access, upon receiving notice of this
    finding TracFone must immediately notify the Commission of this
    finding and explain how it plans to come into compliance with this
    condition.

6.  The Pennsylvania Commission opposed TracFone's request for a
    modification of the PSAP certification requirement, stating that
    TracFone has refused to comply with the "drive testing" requirements
    included as part of Pennsylvania's Phase II 911 compliance.[^15] It
    is unclear from the Pennsylvania Commission's filing whether such
    state "drive testing" requirements apply to resale services, such as
    those provided by TracFone, or whether a demonstration of successful
    "drive testing" of the underlying wireless provider's service would
    comply with the state requirement. As this Commission stated in the
    *TracFone ETC Designation Order*, TracFone's designation as an ETC
    eligible for Lifeline support in each state is conditioned upon
    TracFone's certification that it is in full compliance with any
    applicable 911/E911 obligations, including obligations relating to
    the provision and support of 911 and E911 service.[^16] Therefore,
    TracFone must comply with any state requirements that are applicable
    to carriers providing service on a purely-resale basis. We do not
    find that the Pennsylvania Commission's claim of TracFone's
    non-compliance with the state "drive testing" requirement warrants
    denial of TracFone's request for a 90-day PSAP certification period.
    As discussed above, TracFone's customers should not be denied the
    benefits of access to Lifeline support for a prolonged period of
    time pending PSAP action on TracFone's certification requests. We
    therefore grant TracFone's request and allow it to self-certify its
    provision of 911 and E911 services to its customers, and also
    require it to obtain certification from its underlying carriers, if,
    within 90 days of TracFone's request for certification, a PSAP has
    not provided the certification and the PSAP has not made an
    affirmative finding that TracFone does not provide its customers
    with access to 911 and E911 service within the PSAP's service area.
    To the extent an entity disagrees with TracFone's
    self-certification, it may file a request asking the Commission to
    examine the issue pursuant to section 1.41 of the Commission's
    rules.[^17]

# Ordering CLAUSES

7.  Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in sections 1, 4(i), 4(j), 214(e) and 254 of the Communications Act
    of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 214 and 254,
    the petition for modification filed by TracFone Wireless, Inc. IS
    GRANTED as discussed herein.

8.  IT IS FURTHER ORDERED that the Pennsylvania Public Utility
    Commission's request for an extension of the pleading cycle IS
    DENIED.

9.  IT IS FURTHER ORDERED that, pursuant to section 1.103 of the
    Commission's rules, 47 C.F.R. § 1.103, this order SHALL BE effective
    upon release.

    FEDERAL COMMUNICATIONS COMMISSION

    Marlene H. Dortch

    Secretary

[^1]: *See* Petition for Modification of Public Safety Answering Point
    Certification Condition by TracFone Wireless, Inc., CC Docket No.
    96-45 (filed Nov. 21, 2008) (TracFone Petition); *see also Petition
    of TracFone Wireless, Inc. for Forbearance from 47 U.S.C. §
    214(e)(1)(A) and 47 C.F.R. § 54.201(i),* CC Docket No. 96-45, Order,
    20 FCC Rcd 15095 (2005) (*TracFone Forbearance Order*);
    *Federal-State Joint Board on Universal Service, TracFone Wireless,
    Inc. Petition for Designation as an Eligible Telecommunications
    Carrier in the State of New York et al.*, CC Docket No. 96-45,
    Order, 23 FCC Rcd 6206 (2008) (*TracFone ETC Designation Order*)
    (designating TracFone as an ETC for Lifeline support only in New
    York, Virginia, Connecticut, Massachusetts, Alabama, North Carolina,
    Tennessee, Delaware, New Hampshire, Pennsylvania, and the District
    of Columbia). Under the Lifeline program, low-income consumers
    receive discounts on their monthly charges for local phone service.
    47 C.F.R. § 54.401. In its initial comments on the petition, the
    Pennsylvania Public Utility Commission (Pennsylvania Commission)
    sought an extension of the pleading cycle, seeking four additional
    weeks for comments and two more weeks for reply comments.
    Pennsylvania Commission Comments at 2. The Pennsylvania Commission
    filed comments and reply comments, as well as an *ex parte* filing
    in response to the TracFone Petition. *See infra* note 10; Letter
    from Joseph K. Witmer, Assistant Counsel, Pennsylvania Commission
    Law Bureau, to Marlene Dortch, Office of the Secretary, Federal
    Communications Commission, CC Docket No. 96-45 (dated Jan. 29, 2009)
    (Pennsylvania Commission January 29^th^ *Ex Parte* Letter). We find
    that the Pennsylvania Commission was able to provide comment on the
    TracFone Petition without the need for an extension of the pleading
    cycle. We therefore deny the Pennsylvania Commission's request.

[^2]: *TracFone Forbearance Order*, 20 FCC Rcd at 15102, para. 16; *see
    also TracFone ETC Designation Order*, 23 FCC Rcd at 6215, para. 22
    (declining TracFone's request to modify the forbearance condition
    requiring TracFone to obtain the required certification from each
    PSAP).

[^3]: 47 U.S.C. § 254(e).

[^4]: 47 U.S.C. § 214(e)(1)(A); *see also* 47 C.F.R. § 54.201(d)(1).

[^5]: TracFone Petition at 3-4.

[^6]: *TracFone Forbearance Order*, 20 FCC Rcd at 15102, para. 16.

[^7]: *Id.* at 15098, para. 6. Grant of forbearance was conditioned on
    TracFone: (a) providing its Lifeline customers with 911 and E911
    access regardless of activation status and availability of prepaid
    minutes; (b) providing its Lifeline customers with E911-compliant
    handsets and replacing, at no additional charge to the consumer,
    non-compliant handsets of customers who obtain Lifeline-supported
    service; (c) complying with conditions (a) and (b) as of the date it
    provides Lifeline service; (d) obtaining a certification from each
    PSAP where TracFone provides Lifeline service confirming that
    TracFone provides its customers with 911 and E911 access; (e)
    requiring its customers to self-certify at time of service
    activation and annually thereafter that they are the head of
    household and receive Lifeline-supported service only from TracFone;
    and (f) establishing safeguards to prevent its customers from
    receiving multiple TracFone Lifeline subsidies at the same address.
    *Id.*

[^8]: At the time the Commission designated TracFone an ETC in
    Pennsylvania, the Pennsylvania Commission had not exerted
    jurisdiction over wireless providers for purposes of ETC
    designation; therefore the Commission granted TracFone ETC
    designation pursuant to section 214(e)(6) of the Act. *TracFone ETC
    Designation Order*, 23 FCC Rcd at 6207, 6211, paras. 1, 9; 47 U.S.C.
    § 214(e)(6). On February 26, 2009, the Pennsylvania Commission
    announced that it will exert its jurisdiction, effective as of that
    date, to designate wireless carrier ETCs pursuant to section
    214(e)(2) of the Act. *See* Letter from Joseph K. Witmer, Assistant
    Counsel, Pennsylvania Public Utility Commission, to Marlene H.
    Dortch, Secretary, Federal Communications Commission, CC Docket No.
    96-45 (filed Feb. 26, 2009) (attaching February 26, 2009
    Pennsylvania Commission decision); 47 U.S.C. § 214(e)(2).

[^9]: *See* *TracFone ETC Designation Order*, 23 FCC Rcd at 6207-08,
    para. 1. The Commission conditioned grant of TracFone's ETC
    designations on TracFone's certification that it is in full
    compliance with any applicable 911/E911 obligations, including
    obligations relating to the provision and support of 911 and E911
    service. *Id.* at 6213, para. 16. The TracFone Petition and this
    order are limited to the PSAP certification requirement regarding
    TracFone's provision of access to 911 and E911 service to its
    customers. This condition is separate from the certification
    regarding TracFone's compliance with any state 911/E911 obligations,
    including payment of fees into state 911/E911 funds. *See*
    Pennsylvania Commission January 29^th^ *Ex Parte* Letter at 2
    (expressing concern about TracFone's compliance with the separate
    condition to certify compliance with Pennsylvania law); Pennsylvania
    Emergency Management Agency Petition to Reject, CC Docket No. 96-45
    (filed Jan. 29, 2009) (asking the Commission to reject TracFone's
    certification for compliance with Pennsylvania 911/E911 obligations
    due to TracFone's failure to contribute to Pennsylvania's Wireless
    E911 Emergency Services Fund).

[^10]: *Id.* at 6213, para. 16.

[^11]: TracFone Petition at 1. On December 23, 2008, the Wireline
    Competition Bureau sought comment on TracFone's petition. *See
    Comment Sought on TracFone Wireless Inc. Petition for Modification
    of Public Safety Answering Point Certification Condition*, CC Docket
    No. 96-45, Public Notice, DA 08-2779 (Wireline Comp. Bur., rel. Dec.
    23, 2008). Comments on the petition were due January 6, 2009, and
    reply comments were due January 13, 2009. Comments were filed by
    Consumer Action, the National Emergency Number Association, and the
    Pennsylvania Commission. TracFone and the Pennsylvania Commission
    filed reply comments.

[^12]: *See TracFone ETC Designation Order*, 23 FCC Rcd at 6212, para.
    15.

[^13]: *TracFone Forbearance Order*, 20 FCC Rcd at 15102, para. 16; *see
    also TracFone ETC Designation Order*, 23 FCC Rcd at 6215, para. 22.

[^14]: If a PSAP has conducted testing and notified TracFone within the
    90-day period of concerns regarding the ability of TracFone
    customers to access 911 and E911 services, TracFone may not
    self-certify compliance until it has addressed the PSAP's concerns
    (for example, issues with TracFone's underlying wireless provider
    concerning access to 911 and E911 services), such that the PSAP can
    provide the required certification. In this circumstance, TracFone
    may self-certify 180 days after requesting certification from the
    PSAP if the PSAP does not approve or deny the certification within
    that period.

[^15]: Pennsylvania Commission Reply Comments at 7-8. The Pennsylvania
    Commission also requests that the Commission revisit the decisions
    granting TracFone's forbearance request and ETC designation in
    Pennsylvania. *Id.* at 9, 12-17. Pursuant to section 1.106(f) of the
    Commission's rules, petitions for reconsideration of Commission
    actions must be filed within 30 days from the date of public notice
    of the final Commission action. 47 C.F.R. § 1.106(f). The public
    notice dates of both the *TracFone Forbearance Order* and the
    *TracFone ETC Designation Order* were their release dates pursuant
    to section 1.4(b)(2) of the Commission's rules. 47 C.F.R. §
    1.4(b)(2). Those dates were September 8, 2005, and April 11, 2008,
    respectively. The Pennsylvania Commission's reply comments were
    filed on January 13, 2009, well outside of the 30-day
    reconsideration deadlines for both orders. The Pennsylvania
    Commission's oppositions to those decisions are therefore untimely
    and will not be considered here.

[^16]: *TracFone ETC Designation Order*, 23 FCC Rcd at 6213, para. 16.

[^17]: 47 C.F.R. § 1.41.