**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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| NPI-Omnipoint Wireless, LLC Petition |   |                            |
| for Waiver of Sections 54.307(c),    | * |                            |
| 54.802(a), and 54.903 of the         | * |                            |
| Commission's Rules                   | ) |                            |
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| SouthEast Telephone, Inc. Petition   | * |                            |
| of Waiver of Deadlines In 47 C.F.R.  |   |                            |
| § 54.809(c)                          | * |                            |
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| SEI Data, Inc. Petition for Waiver   | ) |                            |
| of Filing Deadline In 47 C.F.R.      | * |                            |
| Section 54.802(a)                    | * |                            |
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+--------------------------------------+---+----------------------------+

**ORDER**

**Adopted: March 13, 2007 Released: March 13, 2007**

By the Acting Deputy Chief, Wireline Competition Bureau:

# INTRODUCTION

1.  In this Order, we deny three separate requests for waiver, filed by
    three eligible telecommunications carriers (ETCs) -- NPI-Omnipoint
    Wireless, LCC (NPI), SouthEast Telephone, Inc. (SouthEast), and SEI
    Data, Inc. (SEI) (collectively, Petitioners) -- of certain filing
    deadlines required for receipt of high-cost universal support
    service as set forth in sections 54.307(c), 54.802(a), 54.809(c),
    and 54.903 of the Commission's rules.[^1] We find that the
    Petitioners have failed to demonstrate that good cause warrants
    waiver of the Commission's rules.

# 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 also 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 section 54.307 of the Commission's rules, a competitive
    ETC must file with the Universal Service Administrative Company
    (USAC), no later than July 31, September 30, December 30, and March
    30 of each year, working line count data for the previous December
    31, March 31, June 30, and September 30, respectively, in order to
    receive high-cost support for those quarterly periods.[^5] In
    addition, an ETC that is providing service within an area served by
    a price cap local exchange carrier must file line count data on a
    quarterly basis, pursuant to section 54.802 of the Commission's
    rules.[^6] Line count data are due on the last business day of
    March, June, September, and December of each year.[^7] Before an ETC
    can begin receiving interstate access support (IAS) it must also
    file a certification with USAC and the Commission stating that all
    IAS support will only be used for the provision, maintenance, and
    upgrading of facilities and services for which such support is
    intended.[^8] An ETC must file this certification on the date that
    it first files its line counts information pursuant to section
    54.802, and thereafter on June 30 of each year.[^9]

4.  *[NPI's Petition for Waiver]{.underline}*. On August 26, 2003, the
    Michigan Public Service Commission designated NPI as an ETC in areas
    served by non-rural carriers in Michigan.[^10] Although NPI timely
    submitted its initial line count filings for high-cost support prior
    to its designation as an ETC, it failed to submit its line count
    data due on September 30, 2003.[^11] NPI filed its line count data
    on April 6, 2004, approximately six months after the line count
    filing deadline.[^12] At the same time, NPI filed a request for
    waiver of sections 54.307(c), 54.802(a), and 54.903 of the
    Commission's rules to permit NPI to receive high-cost support for
    the first quarter of 2004.[^13] NPI contends that good cause exists
    for granting its request for waiver because it misunderstood
    information it received from USAC.[^14] NPI also asserts that
    granting its waiver request will serve the public interest because,
    absent the requested waivers, its receipt of universal service
    support will be interrupted, which may adversely affect NPI's
    ability to maintain the quality of service to its customers in rural
    areas of Michigan and exacerbate the carrier's financial
    difficulties.[^15]

5.  *[SEI's Petition for Waiver]{.underline}*. On March 23, 2004, SEI
    filed a request for waiver of section 54.802(c) to enable it to
    receive IAS support.[^16] Pursuant to 54.802(c) of the Commission's
    rules, to receive IAS support, SEI was required to file line count
    data by December 31, 2003.[^17] SEI did not file the data until
    March 4, 2004.[^18] SEI explains that it missed the deadline due to
    personnel changes, and confusion regarding the fund
    administrator.[^19] SEI argues that good cause exists for granting
    its waiver request because USAC would not be burdened by accepting
    its late filed line count data and denying its waiver request would
    frustrate the underlying purpose of the Commission's rules.[^20]

6.  *[SouthEast's Petition for Waiver]{.underline}*. On December 17,
    2003, SouthEast filed a request for waiver of the June 30, 2003,
    filing deadline for annual certification set forth in section
    54.809(c) of the Commission's rules.[^21] SouthEast filed its annual
    certification on September 30, 2003, approximately three months
    after the deadline.[^22] SouthEast contends it missed the June 30,
    2003, filing deadline because it was not familiar with the
    Commission's filing deadlines and misinterpreted information from
    USAC about the reporting and annual certification deadlines.[^23]
    Southeast argues that granting its waiver request would serve the
    public interest because IAS helps SouthEast provides low cost
    telephone service to consumers in rural Kentucky.[^24]

# DISCUSSION

7.  We deny the Petitioner's waiver requests. [^25] We find that the
    Petitioners have not demonstrated that good cause exists to waive
    the filing deadlines required by 54.307(c), 54.802(a), 54.809(c),
    and 54.903 of the Commission's rules.[^26] Because USAC processes
    such a large amount of data each year, it is necessary to require
    carriers to meet filing deadlines absent special circumstances.[^27]
    Carriers are responsible for reviewing and understanding the rules
    to ensure that submissions are filed in a timely manner.[^28] NPI,
    SEI, and SouthEast argue that they missed their respective filing
    deadlines due to their unfamiliarity with and misunderstanding of
    the Commission's rules, insufficient information about the filing
    deadlines, or misinterpretation of information from USAC.[^29]
    However, a carrier's confusion regarding the rules does not
    establish special circumstances that warrant deviation from the
    Commission's rules.[^30] Otherwise, carriers could seek to
    circumvent the Commission's rules merely by alleging that they
    misinterpreted or were confused by the rules.[^31] Moreover, in each
    of these circumstances and unlike those orders in which these rules
    have been waived, none of the petitioners here cured its failure to
    timely file quickly nor demonstrated sufficient good cause to
    justify grant of a rule waiver.[^32] We therefore, deny the
    Petitioner's requests for waiver of the Commission's rules.

# ORDERING CLAUSEs

8.  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 pursuant to authority
    delegated in 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 54.307(c), 54.802(a), and 54.903 of the
    Commission's rules, 47 C.F.R. §§ 54.307(c), 54.802(a), 54.903, filed
    by NPI-Omnipoint Wireless, LLC, the petition for waiver of section
    54.802(a) of the Commission's rules, 47 C.F.R. § 54.802(a), filed by
    SEI Data, Inc., and the petition for waiver of section 54.809(c) of
    the Commission's rules, 47 C.F.R. § 54.809(c), filed by SouthEast
    Telephone, Inc. ARE DENIED.

9.  IT IS FURTHER ORDERED that, pursuant to authority delegated under
    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

Renée R. Crittendon

> Acting Deputy Chief
>
> Wireline Competition Bureau

[^1]: NPI-Omnipoint Wireless, LLC, Petition for Waiver of Deadlines in
    47 C.F.R. §§ 54.307(c), 54.802(a) and 54.903, CC Docket No. 96-45,
    filed Apr. 6, 2004 (NPI Petition); SEI Data, Inc. Petition for
    Waiver of Deadline in 47 C.F.R. § 54.802(a), CC Docket No. 96-45,
    filed March 23, 2004 (SEI Petition); SouthEast Telephone, Inc.,
    Petition of Waiver of Deadlines In 47 C.F.R. § 54.809(c), CC Docket
    No. 96-45, filed December 17, 2003 (SouthEast Petition); *see* also
    47 C.F.R. §§ 54.307(c), 54.802(a), 54.809(c), and 54.903.

[^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]: *See* 47 C.F.R. § 54.307.

[^6]: *See* 47 C.F.R. § 54.802(a). Interstate access universal service
    support was established to replace implicit support that was
    collected through interstate access charges. *See* *Access Charge
    Reform, Price Cap Performance Review for Local Exchange Carriers,
    Low-Volume Long-Distance Users, Federal-State Joint Board On
    Universal Service*, CC Docket Nos. 96-262, 94-1, 99-249, 96-45,
    Sixth Report and Order in CC Docket Nos. 96-262 and 94-1, Report and
    Order in CC Docket No. 99-249, Eleventh Report and Order in CC
    Docket No. 96-45, 15 FCC Rcd 12962, 13043, para. 195 (2000) (*CALLS
    Order*), *aff'd in part, rev'd in part, and remanded in part*,
    *Texas Office of Public Utility Counsel*, 265 F.3d 313 (5^th^ Cir.
    2001).

[^7]: 47 C.F.R. § 54.802(a). USAC uses line count data filed in December
    to calculate first quarter support for the following calendar year,
    line count data filed in March to calculate second quarter support
    for the current calendar year, line count data submitted in June to
    calculate third quarter support for the current year, and line count
    data filed in September to calculate fourth quarter support for the
    current year. *CALLS Order*, 15 FCC Rcd at 13061, para. 230.

[^8]: 47 C.F.R. § 54.809(a).

[^9]: 47 C.F.R. § 54.809(c).

[^10]: NPI Petition at 2

[^11]: *Id*.

[^12]: *Id*., Attachment A.

[^13]: NPI Petition at 1.

[^14]: *Id.* at 3-4.

[^15]: *Id.* at 4-6.

[^16]: SEI Petition. SEI filed a supplement to its petition. *See*
    Letter from Michael Leach, General Manager SEI Data, Inc., to
    Marlene H. Dortch, FCC, dated July 23, 2004.

[^17]: 47 C.F.R. § 54.802(c).

[^18]: SEI Petition at 2*.*

[^19]: *Id*. at 1-2.

[^20]: *Id*. at 2-3.

[^21]: SouthEast Petition at 1.

[^22]: *Id*.

[^23]: *Id*. at 2-3.

[^24]: *Id*.

[^25]: 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).

[^26]: NPI is a competitive ETC, not a rate-of-return carrier.
    Therefore, its line counts are filed pursuant to section 54.307(c)
    and not 54.903 of the Commission's rules. *See* 47 C.F.R. §§
    54.307(c) and 54.903. Thus, NPI's request for a waiver of section
    54.903 of the Commission's rules is not necessary, and we dismiss it
    as moot.

[^27]: *Federal-State Joint Board on Universal Service, FiberNet, LLC,
    Petition for Waiver of Section 54.307(c) of the Commission's Rules
    and Regulations*, Order, CC Docket No. 96-45, 19 FCC Rcd 8202, 8204,
    para. 5 (Wireline Comp. Bur. 2004).

[^28]: *Id*.

[^29]: NPI Petition at 3-6; SEI Petition at 2-3; and SouthEast Petition
    at 2-3.

[^30]: *Federal-State Joint Board on Universal Service, South Slope
    Cooperative Telephone Company, Petition for Waiver of Filing
    Deadline in 47 C.F.R. Section 54.307(c)*, Order, CC Docket No.
    96-45, 19 FCC Rcd 17493, 17494 para. 5 (Wireline Comp. Bur. 2004).

[^31]: *Id*.

[^32]: *See e.g. Verizon Communications Inc. Petition for Waiver of
    Section 54.802(a*), CC Docket No. 96-45, Order, 21 FCC Rcd 10155
    (Wireline Comp. Bur. 2006) (waiving a filing deadline when the
    filing was submitted two business days after the deadline).