**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

+----------------------------------+----+------------------------------+
| In the Matter of                 | *  | CC Docket No. 96-45          |
|                                  | *) |                              |
| Qwest Corporation (Nebraska)     | ** |                              |
|                                  |    |                              |
| Petition for Waiver of Section   | *  |                              |
| 54.313 of the Commission's Rules | *) |                              |
|                                  | ** |                              |
| Qwest Corporation (South Dakota) |    |                              |
|                                  | *  |                              |
| Petition for Waiver of Section   | *) |                              |
| 54.313 of the Commission's Rules | ** |                              |
|                                  |    |                              |
| ALLTEL Nebraska, Inc.            | *  |                              |
|                                  | *) |                              |
| Petition for Waiver of Section   | ** |                              |
| 54.313 of the Commission's Rules |    |                              |
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**ORDER**

**Adopted: November 29, 2005 Released: November 29, 2005**

By the Chief, Wireline Competition Bureau:

# INTRODUCTION

1.  In this Order, we grant requests from Qwest Corporation
    (Qwest-Nebraska and Qwest-South Dakota) and Alltel Nebraska, Inc.
    (ALLTEL) (collectively, the Petitioners) for waiver of the
    certification deadlines as set forth in section 54.313 of the
    Commission's rules.[^1] This waiver will allow the Petitioners to
    receive universal service support for the first and second quarters
    of 2004.

# 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 eligible telecommunications carrier (ETC), other
    requirements must be satisfied before it can begin receiving
    high-cost universal service support. One of these requirements is
    detailed in Section 254(e), which requires that support shall be
    used "only for the provision, maintenance, and upgrading of
    facilities and services for which support is intended."[^3] To
    implement this statutory requirement, the Commission adopted an
    annual certification requirement.

3.  Section 54.313 of the Commission's rules provides that states
    desiring non-rural ETCs to receive universal service high-cost
    support shall file an annual certification with the Universal
    Service Administrative Company (USAC) and the Commission stating
    that all high-cost support received by such carriers within that
    state will be used "only for the provision, maintenance, and
    upgrading of facilities and services for which support is
    intended."[^4] In instances where carriers are not subject to the
    jurisdiction of a state, the Commission allows an ETC to certify
    directly to the Commission and USAC that federal high-cost support
    will be used in a manner consistent with section 254(e).[^5] Section
    54.313(d)(3)(i) provides that the certification must be filed by
    October 1 of the preceding calendar year to receive support
    beginning in the first quarter of a subsequent calendar year.[^6] If
    the October 1 deadline for the first fiscal quarter support is
    missed, the certification must be filed by January 1 for support to
    begin in the second quarter, by April 1 for support to begin in the
    third quarter, and by July 1 for support to begin in the fourth
    quarter.[^7] The Commission established this schedule to allow USAC
    sufficient time to process section 254(e) certifications and
    calculate estimated high-cost demand amounts for submission to the
    Commission.[^8]

4.  High-cost universal service support for non-rural ETCs is based
    on forward-looking economic costs as calculated by the Commission's
    cost model pursuant to section 54.309 of the Commission's
    rules.[^9]  The non-rural support mechanism determines the amount of
    support to be provided to non-rural carriers by comparing statewide
    average forward-looking cost per line to a nationwide cost
    benchmark.[^10]  In 2003, non-rural carriers in only eight states
    were eligible for non-rural high-cost support.[^11] On October 23,
    2003, the Commission released an *Order on Remand* that adopted a
    modified cost benchmark, among other things.[^12]  On December 24,
    2003, the Commission issued a *Public Notice* providing a
    state-by-state estimate of non-rural high-cost support for
    2004.[^13] As a result of the new cost benchmark, non-rural carriers
    in two additional states, Nebraska and South Dakota, were eligible
    to receive non-rural high-cost support beginning in 2004.[^14]

5.  *[Qwest-Nebraska's Petition for Waiver of Section
    54.313]{.underline}*. The December 24, 2003 Public Notice indicated
    that non-rural carriers in Nebraska would be eligible to receive
    approximately \$8 million in high-cost support for 2004.[^15] The
    Nebraska Public Service Commission (PSC) submitted the required
    certification with the Commission on March 16, 2004.[^16] Qwest, a
    non-rural incumbent LEC in Nebraska, filed a petition for a waiver
    of section 54.313 on March 23, 2004.[^17] Qwest-Nebraska argues that
    non-rural carriers in Nebraska became eligible, for the first time,
    to receive high-cost support after the October 1, 2003 certification
    filing deadline had passed.[^18] Qwest-Nebraska requests a waiver of
    the certification deadlines in section 54.313 so that it will be
    eligible to receive high-cost support in Nebraska for the first and
    second quarters of 2004.[^19]

6.  *[Qwest-South Dakota's Petition for Waiver of Section
    54.313]{.underline}*. The December 24, 2003 Public Notice indicated
    that non-rural carriers in South Dakota would be eligible to receive
    approximately \$2 million in high-cost support for 2004.[^20] The
    South Dakota Public Utility Commission (PUC) submitted the required
    certification with the Commission on March 25, 2004.[^21] Qwest, a
    non-rural incumbent LEC in South Dakota, filed a petition for a
    waiver of section 54.313 on March 29, 2004. Qwest-South Dakota
    argues that non-rural carriers in South Dakota became eligible, for
    the first time, to receive high-cost support after the October 1,
    2003 certification filing deadline had passed.[^22] Qwest-South
    Dakota requests a waiver of the certification deadlines in section
    54.313 so that it will be eligible to receive high-cost support in
    South Dakota for the first and second quarters of 2004.[^23]

7.  *[ALLTEL's Petition for Waiver of Section 54.313]{.underline}*. The
    December 24, 2003 Public Notice indicated that non-rural carriers in
    Nebraska would be eligible to receive approximately \$8 million in
    high-cost support for 2004.[^24] The Nebraska PSC certified ALLTEL
    on March 16, 2003.[^25] ALLTEL, a non-rural incumbent LEC in
    Nebraska, filed a petition for a waiver of section 54.313 on March
    23, 2004. ALLTEL argues that non-rural carriers in Nebraska became
    eligible, for the first time, to receive high-cost support after the
    October 1, 2003 certification filing deadline had passed.[^26]
    ALLTEL requests a waiver of the certification deadlines in section
    54.313 so that it will be eligible to receive high-cost support in
    Nebraska for the first and second quarters of 2004.[^27]

8.  *[Standards for Waiver]{.underline}*. Generally, the Commission's
    rules may be waived for good cause shown.[^28] The Commission may
    exercise its discretion to waive a rule where the particular facts
    make strict compliance inconsistent with the public interest.[^29]
    In addition, the Commission may take into account considerations of
    hardship, equity, or more effective implementation of overall policy
    on an individual basis[^30][^31] 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.[^32] Moreover, in demonstrating whether a waiver is
    warranted, the burden of proof rests with the petitioner.[^33]

# discussion

9.  We find that good cause exists to waive the certification deadlines
    in section 54.313 of the Commission rules in order to allow the
    Petitioners to receive high-cost universal service support for the
    first and second quarters of 2004.[^34] The Petitioners have
    demonstrated that special circumstances warrant a deviation from the
    filing deadlines in section 54.313. The certification filing
    schedule set out in the Commission's rules was adopted to ensure
    that USAC has sufficient time to process the certifications prior to
    its submission of estimated support requirements to the Commission.
    Because the Petitioners and their respective state commissions were
    not aware of their eligibility for non-rural high-cost support prior
    to October 1, 2003, however, they could not have met, under any
    circumstances, the October 1, 2003 certification filing deadline and
    given the Commission's release of the *Public Notice* on December
    24, 2003, it was effectively impossible for the Nebraska PSC and
    South Dakota PUC to meet the January 1, 2004 certification deadline.
    It would be onerous, therefore, to deny the Petitioners receipt of
    universal service support for two quarters because the Commission
    did not determine they were eligible until after the filing
    deadlines. In these instances, these special circumstances outweigh
    any processing difficulties that USAC may face as a result of the
    late-filed certification.[^35]

# ordering clauses

10. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 5(c), 201,
    and 202 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    151, 154(i), 155(c), 201, and 202, and sections 0.91, 0.291, and 1.3
    of the Commission\'s rules, 47 C.F.R. §§ 0.91, 0.291, and 1.3, that
    the petition for waiver of section 54.313 of the Commission\'s
    rules, filed by Qwest Corporation (Nebraska) on March 23, 2004, IS
    GRANTED, as described herein.

11. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 5(c), 201,
    and 202 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    151, 154(i), 155(c), 201, and 202, and sections 0.91, 0.291, and 1.3
    of the Commission\'s rules, 47 C.F.R. §§ 0.91, 0.291, and 1.3, that
    the petition for waiver of section 54.313 of the Commission\'s
    rules, filed by Qwest Corporation (South Dakota) on March 29, 2004,
    IS GRANTED, as described herein.

12. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 5(c), 201,
    and 202 of the Communications Act of 1934, as amended, 47 U.S.C. §§
    151, 154(i), 155(c), 201, and 202, and sections 0.91, 0.291, and 1.3
    of the Commission\'s rules, 47 C.F.R. §§ 0.91, 0.291, and 1.3, that
    the petition for waiver of section 54.313 of the Commission\'s
    rules, filed by ALLTEL Nebraska, Inc. on March 23, 2004, IS GRANTED,
    as described herein.

    FEDERAL COMMUNICATIONS COMMISSION

    Thomas J. Navin

    Chief

    Wireline Competition Bureau

[^1]: Qwest Corporation, Petition for Waiver of Section 54.313 of the
    Commission's Rules, CC Docket No. 96-45, filed Mar. 23, 2004
    (Qwest-Nebraska Petition); Qwest Corporation, Petition for Waiver of
    Section 54.313 of the Commission's Rules, CC Docket No. 96-45, filed
    Mar. 29, 2004 (Qwest-South Dakota Petition); ALLTEL Nebraska, Inc.,
    Petition for Waiver of Section 54.313 of the Commission's Rules, CC
    Docket No. 96-45, filed Mar. 23, 2004 (ALLTEL Petition). *See* 47
    C.F.R. § 54.313. We note that the ALLTEL Petition's caption
    incorrectly requests a waiver of section 54.314 of the Commission's
    rules.

[^2]: 47 U.S.C. § 254(e). Section 214(e) of the 1996 Act provides that
    state commissions shall designate carriers as ETCs. 47 U.S.C. §
    214(e).

[^3]: 47 U.S.C. § 254(e).

[^4]: *See Federal-State Joint Board on Universal Service*, CC Docket
    No. 96-45, Fourteenth Report and Order and Twenty-Second Order on
    Reconsideration, *Multi-Association Group (MAG) Plan for Regulation
    of Interstate Services of Non-Price Cap Incumbent Local Exchange
    Carriers and Interexchange Carriers*, CC Docket No. 00-256, Report
    and Order, 16 FCC Rcd 11244, 11317, para. 187 (2001) (*Rural Task
    Force Order*); 47 C.F.R. § 47 C.F.R. § 54.313. The certification
    requirements for rural ETCs are found in section 54.314 of the
    Commission's rules. 47 C.F.R. § 54.314.

[^5]: *See* *Rural Task Force Order,* 16 FCC Rcd at 11318, para. 189; 47
    C.F.R. § 54.313(b). For example, some states do not assert
    jurisdiction over carriers providing services on tribal lands. *See
    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, 12255, para. 95 (2000).

[^6]: 47 C.F.R. § 54.313(d)(3)(i).

[^7]: *See* 47 C.F.R. § 54.313(d)(ii)-(iv). Section 54.314(d) sets out
    similar self-certification rules for rural carriers. 47 C.F.R. §
    54.314(d).

[^8]: *See Rural Task Force Order*, 16 FCC Rcd at 11319, para. 191.
    Under the Commission's rules, USAC submits to the Commission
    estimated demand for the universal service support mechanisms,
    including high-cost support, two months prior to the beginning of
    each quarter. *See* 47 C.F.R. § 54.709(a)(3). Therefore, for the
    first quarter, USAC submits estimated demand amounts to the FCC on
    or before November 1. In order to submit an accurate estimate by
    that date, USAC needs to know which carriers have been certified
    under the Commission's rules no later than October 1.

[^9]: *See* 47 C.F.R. § 54.309.

[^10]: *See Federal-State Joint Board on Universal Service*, CC Docket
    No. 96-45, Ninth Report and Order and Eighteenth Order on
    Reconsideration, 14 FCC Rcd 20432 (1999) (*Ninth Report and Order*),
    *remanded*, *Qwest Corp. v. FCC*, 258 F.3d 1191 (10^th^ Cir. 2003)
    (*Qwest I*).

[^11]: Alabama, Maine, Mississippi, Montana, Vermont , West Virginia,
    and Wyoming received non-rural high-cost support in 2003.  *See*
    State and Federal Staff for the Federal-State Joint Board on
    Universal Service, CC Docket No. 96-45, *Universal Service
    Monitoring Report*, CC Docket No. 98-202 at 3-21, Table 3.8(2004). 

[^12]: *Federal-State Joint Board on Universal Service*, CC Docket No.
    96-45, Order on Remand, Further Notice of Proposed Rulemaking, and
    Memorandum Opinion and Order, 18 FCC Rcd 22559 (2003) (*Order on
    Remand*), *remanded,Qwest Corp. v. FCC*, 398 F.3d 1222 (10^th^ Cir.
    2005) (*Qwest II*).

[^13]: *Wireline Competition Bureau Releases Estimated State-by-State
    High-Cost Universal Service Support Amounts for Non-Rural Carriers
    for 2004*, CC Docket No. 96-45, Public Notice, DA 03-4071 (released
    Dec. 24, 2003).

[^14]: *Id.*

[^15]: *See* *Public Notice* Attachment.

[^16]: *See* Letter from Gerald L. Vap, Chair, Nebraska Public Service
    Commission to Ms. Magalie Roman Salas, Office of the Secretary,
    Federal Communications Commission (Mar. 16, 2004) (Nebraska
    Certification Letter).

[^17]: *See* Qwest-Nebraska Petition. On May 20, 2004, the Wireline
    Competition Bureau (Bureau) released a public notice seeking comment
    on the petition for waiver. *See Wireline Competition Bureau Seeks
    Comment on Qwest's Corporation's Petition for Waiver of Section
    54.313 of the Commission's Rules*, CC Docket No. 96-45, Public
    Notice, 19 FCC Rcd 8985 (2004). No comments were filed.

[^18]: *See* Qwest-Nebraska Petition at 3.

[^19]: *See* Qwest-Nebraska Petition at 3.

[^20]: *See* *Public Notice* Attachment.

[^21]: *See* Letter from Robert K. Sahr, Chairman, South Dakota Public
    Utility Commission to Ms. Marlene H. Dortch, Secretary, Federal
    Communications Commission (Mar. 25, 2004).

[^22]: *See* Qwest-South Dakota Petition at 3.

[^23]: *See* Qwest-South Dakota Petition at 3.

[^24]: *See* *Public Notice* Attachment.

[^25]: *See* Nebraska Certification Letter.

[^26]: *See* ALLTEL Petition at 2-3.

[^27]: *See* ALLTEL Petition at 3.

[^28]: 47 C.F.R. § 1.3.

[^29]: *Northeast Cellular Telephone Co. v. FCC*, 897 F.2d 1164, 1166
    (D.C. Cir. 1990) (*Northeast Cellular*).

[^30]: ^.^

[^31]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1159 (D.C. Cir. 1969);
    *Northeast Cellular*, 897 F.2d at 1166.

[^32]: *Northeast Cellular*, 897 F.2d at 1166.

[^33]: *Tucson Radio, Inc. v. FCC*, 452 F.2d 1380, 1382 (D.C. Cir.
    1971).

[^34]: *See* 47 C.F.R. § 54.313(d)(3)(i)-(ii).

[^35]: To facilitate timely payments and to minimize the administrative
    and financial burden associated with processing those payments, we
    direct USAC to distribute Qwest's and ALLTEL's retroactive support
    on a phased-in basis. Specifically, we instruct USAC to pair
    retroactive payments with regular monthly support payments over a
    six-month period beginning with the December 2005 payment.