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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| Mid-Tex Cellular, Ltd. Petition  | *) |                              |
| for Waiver of the FCC's          | ** |                              |
| Universal Service Rules          |    |                              |
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**ORDER**

**Adopted: December 28, 2006 Released: December 28, 2006**

By the Chief, Wireline Competition Bureau:

# Introduction

1.  In this Order, we grant in part and deny in part a petition from
    Mid-Tex Cellular, Ltd. (Mid-Tex), an eligible telecommunications
    carrier (ETC) in Texas, for a waiver of sections 54.314(d)(5) and
    54.904 of the Commission's rules.[^1] We find that Mid-Tex has
    demonstrated that good cause warrants a waiver of section
    54.314(d)(5), but not section 54.904.

# 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) requires 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 annual
    certification and data filing requirements.[^4]

3.  Section 54.314 of the Commission's rules requires state commissions
    to file an annual certification with both the Commission and the
    Universal Service Administrative Company (USAC) stating that all
    federal high-cost support provided to ETCs subject to the
    jurisdiction of that state will be used only for the provision,
    maintenance, and upgrading of facilities and services for which the
    support is intended.[^5] A carrier for which certifications are
    received by USAC after July 1 shall not receive support in that
    year.[^6] Under sections 54.307(d) and 54.314(a), newly designated
    ETCs have 60 days to file the line count data and
    certifications.[^7]

4.  Similarly, to receive interstate common line support (ICLS) pursuant
    to section 54.904 of the Commission's rules, an ETC must file a
    certification stating that all ICLS it receives will be used only
    for the provision, maintenance, and upgrading of facilities and
    services for which such support is intended. This certification must
    be filed with USAC and the Commission on the date that the ETC first
    files its line count information and thereafter on June 30 of each
    year.[^8]

5.  *[Mid-Tex's Petition for Waiver.]{.underline}* On December 20, 2005,
    Mid-Tex, a small commercial mobile radio service (CMRS) carrier
    serving parts of Texas, filed a petition for waiver of sections
    54.314(d)(5) and 54.904 of the Commission's rules.[^9] Mid-Tex was
    designated as an ETC by the Public Utility Commission of Texas
    (Texas Commission) on August 9, 2005.[^10] The Texas Commission
    filed the annual certification for Mid-Tex to receive support for
    2006 on September 21, 2005.[^11]

6.  Mid-Tex was required to file its ICLS annual certification at the
    same time it filed its initial line count data.[^12] Mid-Tex filed
    its initial line count data on September 9, 2005, but, relying on
    the advice of its consultant, did not file its initial ICLS annual
    certification at that time.[^13] Only after it did not receive its
    expected high-cost support did Mid-Tex file its ICLS annual
    certification, on November 23, 2005.[^14] Mid-Tex states that it was
    a new ETC overwhelmed and confused by the numerous unfamiliar
    filings.[^15] Mid-Tex states that it failed to file its ICLS annual
    certification with its initial ICLS line count data in a timely
    manner due to confusion over the deadline.[^16] Mid-Tex argues that
    it has implemented new procedures to ensure all of its federal
    universal service fund filings are received on a timely basis.[^17]
    Mid-Tex also argues that it is the only wireless carrier providing
    ubiquitous, high-quality service in certain remote parts of its
    service area in Texas, and therefore the waiver is in the public
    interest.[^18]

7.  Mid-Tex requests that the Commission accept its late-filed annual
    ICLS certification, direct USAC to disburse ICLS support to Mid-Tex
    based on the September 9, 2005 filing, and direct USAC to disburse
    support for the period of August 9, 2005, to December 31, 2005.[^19]

# Discussion

8.  We grant in part and deny in part Mid-Tex's petition. We find that
    Mid-Tex has demonstrated that there is good cause to waive the
    certification deadline in section 54.314 of the Commission's rules,
    but has not demonstrated that there is good cause to waive the
    deadline in section 54.904. [^20]

9.  We grant Mid-Tex's petition for waiver of the annual certification
    requirement set forth in section 54.314. We have routinely allowed
    newly designated carriers to receive high-cost support back to their
    date of designation when, as here, the date of the state
    commission's certification made it impossible for the state
    commission to file the certification prior to the July 1
    deadline.[^21] Except for ICLS, as detailed below, we therefore
    direct USAC to disburse high-cost support to Mid-Tex for the period
    between August 9, 2005, and December 31, 2005.

10. We deny Mid-Tex's petition for waiver of the filing deadline set
    forth in section 54.904. Section 54.904 requires that, in order for
    an ETC to receive ICLS support, the carrier must file an annual
    certification on the date that it first files its line count
    information and thereafter on June 30 of each year.[^22] Mid-Tex
    filed its line count information pursuant to section 54.904 on
    September 9, 2005,[^23] but did not file the required annual
    certification until November 23, 2005 -- more than two months
    later.[^24] Because USAC processes a large amount of data each year,
    it is administratively necessary to require ETCs to meet filing
    deadlines absent special circumstances. Mid-Tex's only excuse for
    its late filing was its confusion over the deadline. Such an excuse
    does not constitute special circumstances.[^25] Therefore, we deny
    Mid-Tex's petition for waiver. We note, however, that because
    Mid-Tex filed its certification on November 23, 2005, it is eligible
    to receive support for the nine-month period beginning April 1,
    2006, and ending December 31, 2006.[^26]

# ORDERING CLAUSES

11. Accordingly, IT IS ORDERED that, pursuant to the authority contained
    in 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 sections 0.91, 0.291, and 1.3 of the Commission's rules, 47
    C.F.R. §§ 0.91, 0.291, and 1.3, the Mid-Tex Cellular, Ltd. Petition
    for Waiver of the Commission's Universal Service Rules IS GRANTED IN
    PART and DENIED IN PART, as described herein.

> FEDERAL COMMUNICATIONS COMMISSION

Thomas J. Navin

> Chief
>
> Wireline Competition Bureau

[^1]: Mid-Tex Cellular, Ltd. Petition for Waiver of the FCC's Universal
    Service Rules, CC Docket No. 96-45, filed December 20, 2005
    (Petition); *see also* 47 C.F.R. §§ 54.314(d)(5), 54.904.

[^2]: 47 U.S.C. § 254(e). Section 214(e)(2) of the Act provides that
    state commissions shall designate carriers as ETCs, but section
    214(e)(6) allows the Commission to designate as ETCs carriers not
    subject to the jurisdiction of a state commission. 47 U.S.C. §
    214(e)(2), (6).

[^3]: 47 U.S.C. § 254(e).

[^4]: *See* 47 C.F.R. §§ 54.307, 54.313, 54.314, 54.802, 54.809, 54.903.

[^5]: 47 C.F.R. § 54.314(a).

[^6]: 47 C.F.R. § 54.314(d)(5).

[^7]: 47 C.F.R. §§ 54.307(d) and 54.314(a).

[^8]: *See* 47 C.F.R. §§ 54.904(a) and (d). In the *MAG Order,* the
    Commission adopted a mechanism for accepting an untimely filed ICLS
    certification, whereby the carrier does not become eligible for ICLS
    until the second calendar quarter after the certification is
    untimely filed. *See* *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,
    *Federal-State Joint Board on Universal Service*, CC Docket No.
    96-45, *Access Charge Reform for Incumbent Local Exchange Carriers
    Subject to Rate-of-Return Regulation*, CC Docket No. 98-77,
    *Prescribing the Authorized Rate of Return for Interstate Services
    of Local Exchange Carriers*, CC Docket No. 98-166, Second Report and
    Order and Further Notice of Proposed Rulemaking in CC Docket No.
    00-256, Fifteenth Report and Order in CC Docket No. 96-45, and
    Report and Order in CC Docket Nos. 98-77 and 98-166, 16 FCC Rcd
    19613, 19688, para. 176 (2001) (*subsequent history omitted*) (*MAG
    Order*).

[^9]: Petition at 13.

[^10]: *Id.* at 2.

[^11]: *Id.* at 9.

[^12]: 47 C.F.R. § 54.904(d).

[^13]: Petition at 3.

[^14]: *Id.*

[^15]: *Id.* at 8.

[^16]: *Id.* at 1.

[^17]: *Id.* at 4.

[^18]: *Id.* at 6-7.

[^19]: *Id.* at 13.

[^20]: 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).

[^21]: *See Grande Communications, Inc., Petition for Waiver of Sections
    54.307 and 54.314 of the Commission's Rules and Regulations*, CC
    Docket No. 96-45, Order, 19 FCC Rcd 15580, 15584, para. 9 (2004).

[^22]: 47 C.F.R. § 54.904.

[^23]: *See* Petition at 3.

[^24]: *See id*.

[^25]: *See South Slope Cooperative Telephone Co., Petition for Waiver
    of Filing Deadline in 47 C.F.R. Section 54.307(c)*, CC Docket No.
    96-45, Order, 19 FCC Rcd 17493 (2004).

[^26]: *See MAG Order*, 16 FCC Rcd at 19688, para. 176.