[Federal Register Volume 63, Number 2 (Monday, January 5, 1998)]
[Rules and Regulations]
[Pages 162-164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-138]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[FCC 97-419]


Procedure for Designation of Eligible Telecommunications Carriers 
Pursuant to Section 214(e)(6) of the Communications Act

AGENCY: Federal Communications Commission.

ACTION: Rules of agency procedure and practice.

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SUMMARY: This action establishes the procedures the Commission will use 
in implementing Public Law 105-125 (enacted December 1, 1997), which 
added subsection (e)(6) to section 214(e) of the Communications Act of 
1934, as amended (the Act). New section 214(e)(6) provides for the 
designation of eligible telecommunications carriers by the Federal 
Communications Commission (Commission) in certain limited circumstances 
for common carriers that are not subject to the jurisdiction of a state 
commission.

DATES: Effective January 5, 1998.

ADDRESSES: One original and five copies of all petitions and comments 
must be sent to Magalie Roman Salas, Secretary, Federal Communications 
Commission, 1919 M Street, N.W., Washington, D.C. 20554. Three copies 
also should be sent to Sheryl Todd, Universal Service Branch, 
Accounting and Audits Division, Common Carrier Bureau, 2100 M Street, 
N.W., 8th Floor, Washington, D.C. 20554. One copy must be sent to the 
Commission's contractor, International Transcription Service, 1231 20th 
Street, N.W., Washington, D.C. 20037, (202) 857-3800. In addition to 
filing comments with the Secretary, a copy of any comments on the 
information collections contained herein should be submitted to Judy 
Boley, Federal Communications Commission, Room 234, 1919 M Street, 
N.W., Washington, DC 20554. See the SUPPLEMENTARY INFORMATION section 
for electronic filing addresses.

FOR FURTHER INFORMATION CONTACT: Valerie Yates, Legal Counsel, Common 
Carrier Bureau, (202) 418-1500, or Cheryl Leanza, Common Carrier 
Bureau, (202) 418-7400. For additional information concerning the 
information collections contained in this Public Notice contact Judy 
Boley at 202-418-0214, or via the Internet at <a href="/cdn-cgi/l/email-protection#771d15181b120e3711141459101801"><span class="__cf_email__" data-cfemail="acc6cec3c0c9d5eccacfcf82cbc3da">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This information collection has been 
approved by OMB 3060-0810, expiration date of May 31, 1998. This Public 
Notice establishes the procedures the Commission will use in 
implementing Public Law 105-125 (enacted December 1, 1997), which added 
subsection (e)(6) to section 214(e) of the Communications Act of 1934, 
as amended (the Act). Public Law 105-125, 111 Stat. 2540 (1997). 
Section 214(e)(1) of the Act provides that common carriers designated 
as ``eligible telecommunications carriers'' are eligible to receive 
universal service support in accordance with section 254 of the Act. 47 
U.S.C. secs. 214(e)(1) and 254; see Federal-State Joint Board on 
Universal Service, CC Docket No. 96-45, Report and Order, 62 FR 32862, 
June 17, 1997 (Universal Service Order). Section 214(e)(2) of the Act 
provides that state commissions shall designate eligible 
telecommunications carriers. See 47 U.S.C. sec. 214(e)(2). For purposes 
of the designation requirement, ``state commission'' is defined in 
section 3(47) of the Act as a ``commission, board, or official (by 
whatever name designated) which under the laws of any State has 
regulatory jurisdiction with respect to intrastate operations of 
carriers.'' 47 U.S.C. sec. 3(47). Until its recent amendment, section 
214(e) did not address how common carriers not subject to the 
jurisdiction of a state commission would be designated. New section 
214(e)(6) provides for the designation of eligible telecommunications 
carriers by the Federal Communications Commission (Commission) in 
certain limited circumstances for common carriers that are not subject 
to the jurisdiction of a state commission. See 143 Cong. Rec. S12,568 
(daily ed. Nov. 13, 1997) (stating that the amendment was intended to 
correct an ``oversight'' in the statute regarding certain carriers, 
such as tribally owned common carriers, that may fall outside the 
jurisdiction of a state commission and that the amendment ``does 
nothing to alter the existing jurisdiction that state commissions have 
over local exchange carriers or providers of commercial mobile radio 
services.''). We set forth herein the procedures that carriers must use 
in requesting such designation from the Commission. Any carrier that is 
able to be or has already been designated as an eligible 
telecommunications carrier by a state commission is not required to 
receive such designation from the Commission. We delegate to the Chief, 
Common Carrier Bureau, the authority to designate carriers as eligible 
telecommunications carriers, pursuant to section 214(e)(6).
    Carriers seeking designation from the Commission pursuant to 
section 214(e)(6) must demonstrate that they fulfill the requirements 
of section 214(e)(1). Accordingly, carriers seeking designation from 
the Commission are instructed to file a petition that sets forth the 
following information:

    1. A certification and brief statement of supporting facts 
demonstrating that the petitioner is ``not subject to the 
jurisdiction of a state commission''.
    2. A certification that the petitioner provides all services 
designated for support by the Commission pursuant to section 254(c). 
To meet the requirements of section 214(e)(1) of the Act, a carrier 
must offer all of the services designated for support by the 
Commission pursuant to section 254(c). 47 U.S.C. sec. 214(e)(1)(A). 
The Commission has designated the following services for support: 
single-party service; voice grade access to the public switched 
network; Dual Tone Multifrequency (DTMF) signalling or its 
functional equivalent; access to emergency services including, in 
some circumstances, access to 911 and Enhanced 911 (E911); access to 
operator services; access to interexchange service; access to 
directory assistance; and toll limitation services for qualifying 
low-income consumers. See Universal Service Order, 62 FR 32862, June 
17, 1997.
    a. If the petitioner seeks an extension of time in order to 
implement the Commission's requirements to offer single-party 
service, access to E911, or toll-limitation services for

[[Page 163]]

Lifeline consumers, the petitioner must demonstrate that it has met 
the criteria set forth by the Commission to receive such an 
extension of time. See Universal Service Order, 62 FR 32862, June 
17, 1997.
    b. If the petitioner seeks a waiver of the prohibition against 
disconnecting Lifeline service for non-payment of toll charges, the 
petitioner must demonstrate that it meets the requirements of 
Sec. 54.401(b)(1) of the Commission's rules; Section 54.401(b)(1) of 
the Commission's rules provides that a carrier may receive a waiver 
of the no-disconnect rule if it demonstrates that: (1) it would 
incur substantial costs in complying with this requirement; (2) it 
offers toll limitation to its qualifying low-income consumers 
without charge; and (3) telephone subscribership among low-income 
consumers in the carrier's service area is greater than or equal to 
the national subscribership rate for low-income consumers. 47 CFR 
54.401(b)(i)-(iii).
    3. A certification that the petitioner offers the supported 
services ``either using its own facilities or a combination of its 
own facilities and resale of another carrier's services''. 47 U.S.C. 
sec. 214(e)(1)(A).
    4. A description of how the petitioner ``advertise[s] the 
availability of the [supported] services and the charges therefor 
using media of general distribution''; 47 U.S.C. sec. 214(e)(1)(B).
    5. If the petitioner meets the definition of a ``rural telephone 
company'' pursuant to section 3(37) of the Act, the petitioner must 
identify its study area. See 47 U.S.C. sec. 214(e)(5) (defining the 
service area of rural telephone companies as ``such company's `study 
area' . . . ''); 47 U.S.C. sec. 153(37). If the petitioner is not a 
rural telephone company, the petitioner must include a detailed 
description of the geographic service area that it requests the 
Commission designate.

    In addition, in order to be eligible for any new, modified or 
renewed instrument of authorization from the Commission, including 
authorizations issued pursuant to section 214 of the Act, all 
petitioners must certify that neither the petitioner nor any party to 
the application is subject to a denial of federal benefits, including 
Commission benefits, pursuant to section 5301 of the Anti-Drug Abuse 
Act of 1988. 47 CFR 1.2002(a); 21 U.S.C. sec. 862. We note that this 
provision does not apply to, inter alia, ``Federal, State, or local 
governmental entities or subdivisions thereof.'' 47 CFR 1.2002(c). This 
certification must also include the names of individuals specified by 
section 1.2002(b) of the Commission's rules. Section 1.2002(b) provides 
that a certification pursuant to that section shall include: ``(1) If 
the applicant is an individual, that individual; (2) If the applicant 
is a corporation or unincorporated association, all officers, 
directors, or persons holding 5 percent or more of the outstanding 
stock or shares (voting and/or non-voting) of the petitioner; and (3) 
If the applicant is a partnership, all non-limited partners and any 
limited partners holding a 5 percent or more interest in the 
partnership.'' 47 CFR 1.2002(b).
    Pursuant to section 254(e), after the date on which the 
Commission's regulations implementing section 254 take effect, ``only 
an eligible telecommunications carrier designated under section 214(e) 
shall be eligible to receive specific Federal universal service 
support.'' The Commission's regulations implementing section 254 will 
take effect January 1, 1998. Accordingly, starting January 1, 1998, 
carriers must be designated as eligible telecommunications carriers to 
receive support under federal universal service support mechanisms. 
Under certain circumstances, a petitioner that is designated as an 
eligible telecommunications carrier by the Commission after January 1, 
1998, may seek universal service support retroactive to January 1, 
1998. Such a petitioner must: (1) Include a request for retroactive 
support in its petition; (2) demonstrate that, as of January 1, 1998, 
it met the requirements set forth in section 214(e)(1); and (3) set 
forth the steps it has taken to receive designation as an eligible 
telecommunications carrier in a timely manner. Carriers that do not 
seek retroactive support, or do not qualify for retroactive support 
under the criteria set forth in this paragraph, shall be eligible to 
receive compensation after the date of designation by the Commission.
    These procedures will be effective upon publication in the Federal 
Register. We conclude that compliance with the notice and public 
comment provisions of the Administrative Procedure Act (APA) is not 
required with respect to the procedures adopted in this Public Notice 
because this Public Notice establishes rules of agency procedure and 
practice. 5 U.S.C. sec. 553(b)(3)(A) (stating that notice and comment 
requirements are inapplicable to rules for ``agency organization, 
procedure, or practice''). To the extent that these rules may be deemed 
to be substantive rather than procedural, we find that good cause 
exists to adopt these requirements without notice and comment because 
compliance with the notice and public comment would be impracticable 
and contrary to the public interest. 5 U.S.C. sec. 553(b)(3)(B) 
(stating that notice and comment requirements are inapplicable ``when 
the agency for good cause finds * * * that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest''). As noted above, section 214(e)(6) became law on December 
1, 1997, only one month before our rules implementing section 254 take 
effect. Our prompt action establishing these procedures is designed to 
ensure that eligible telecommunications carriers receive universal 
service support without interruption (or with minimal interruption). 
See 47 U.S.C. sec. 254(e). This is consistent with Congress' desire to 
correct the ``oversight'' in section 214(e) and to provide universal 
service support for those carriers not subject to the jurisdiction of a 
state commission. This good cause finding also supports making these 
rules effective upon publication in the Federal Register. 5 U.S.C. sec. 
553(d).
    Pleading Cycle. Upon receipt of a petition filed pursuant to 
section 214(e)(6), the Commission will issue a public notice 
establishing a pleading cycle and assigning a Bureau file number to the 
petition. Oppositions or comments regarding the petition will be due 
approximately 10 days after the Commission releases the public notice. 
Reply comments will be due approximately 7 days after comments are due.
    Filing Requirements. All filings should reference: Petition for 
Designation as an Eligible Telecommunications Carrier Pursuant to 
Section 214(e)(6) of the Communications Act, FCC 97-419. Comments and 
reply comments should reference the name of the petitioner filing a 
petition for designation and the Bureau file number of the petition. 
All interested parties should include the name of the filing party and 
the date of the filing on each page of their petitions and comments. 
Parties should include a table of contents in all documents regardless 
of length and should indicate whether they are filing an electronic 
copy of a submission via the Internet or via diskette. Pleadings must 
comply with Commission rules. See, e.g., 47 CFR 1.49, 1.415, 1.419.
    Parties may also file informal comments or an exact copy of a 
petition or formal comments electronically via the Internet at: <http:/
/gullfoss.fcc.gov/cgi-bin/websql/cgi-bin/comment/comment.hts>. Only one 
copy of an electronic submission must be submitted. A party must note 
whether an electronic submission is an exact copy of a petition or 
formal comments on the subject line and should note in its paper 
submission that an electronic copy of its comments is being submitted 
via the Internet. A commenter also must include its full name and 
Postal Service mailing address in its submission. Parties not 
submitting an exact copy of their formal comments via the Internet

[[Page 164]]

are also asked to submit their petitions and comments on diskette. 
Parties submitting diskettes should submit them to Sheryl Todd of the 
Universal Service Branch, 2100 M Street, N.W., Room 8606, Washington, 
D.C. 20554. Such a submission should be on a 3.5 inch diskette 
formatted in an IBM compatible format using WordPerfect 5.1 for Windows 
or compatible software. The diskette should be accompanied by a cover 
letter and should be submitted in ``read only'' mode. The diskette 
should be clearly labelled with the party's name, proceeding, type of 
pleading (petition or comment), date of submission, and the name of the 
electronic file on the diskette. Each diskette should contain only one 
party's pleadings, preferably in a single electronic file. Electronic 
submissions are in addition to and not a substitute for the formal 
filing requirements addressed above.
    Ex parte contact. For the purposes of ex parte contact, each 
petition submitted pursuant to section 214(e)(6) will be treated as 
initiating a permit-but-disclose proceeding under the Commission's 
rules. See 47 CFR 1.1206.
    Paperwork Reduction Act Requirement. In the Report and Order on 
Universal Service (released May 8, 1997), the Commission adopted rules 
that are designed to implement the universal service provision of 
section 254 of the Act. In accord with the Paperwork Reduction Act, we 
previously received OMB approval for the information collections that 
carriers must comply with in order to apply to their state commissions 
for designation as carriers eligible to receive universal support 
pursuant to section 254. Section 214(e) directs the Commission to 
designate telecommunications carriers that meet specified requirements 
as eligible in situations where the telecommunications carrier is not 
subject to the jurisdiction of a state commission. To implement this 
new statute, we will require telecommunications carriers that seek to 
be classified as eligible by the Commission and are not subject to the 
jurisdiction of a state commission to send to the Commission 
information demonstrating that they meet the eligibility criteria set 
forth in the Telecommunications Act of 1996 and described in the 
Commission's rules. This information must be submitted according to the 
procedural requirements described above. These reporting requirements 
are necessary to verify that particular carriers are eligible to 
receive universal service support.
    We have estimated that each response to this collection of 
information will take, on average, 58 hours for respondants filing 
petitions and 20 hours for respondents filing written comments. Our 
estimate includes the time to comply with the statutory requirements, 
read this Public Notice, review existing records, gather and maintain 
required data, and complete and review the response. If you have any 
comments on this estimate, or on how we can improve the collection and 
reduce the burden it causes you, please write the Federal 
Communications Commission, AMD-PERM, Washington, D.C. 20554, Paperwork 
Reduction Project (3060-0793). We will also accept your comments on the 
burden estimate via the Internet if you send them to <a href="/cdn-cgi/l/email-protection#0b616964676e724b6d6868256c647d"><span class="__cf_email__" data-cfemail="1c767e737079655c7a7f7f327b736a">[email protected]</span></a>. 
Please Do Not Send petitions requesting Commission designation as an 
eligible telecommunications carrier to this e-mail address.
    You are not required to respond to a collection of information 
sponsored by the Federal government, and the government may not conduct 
or sponsor this collection, unless it displays a currently valid OMB 
control number or if we fail to provide you with this notice. This 
collection has been assigned an OMB control number of 3060-0810, which 
expires on May 31, 1998.
    This notice is required by the Privacy Act of 1974, Public Law 93-
579, December 31, 1974, 5 U.S.C. section 552a(e)(3) and the Paperwork 
Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C. 
3507.

Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 98-138 Filed 1-2-98; 8:45 am]
BILLING CODE 6712-01-P


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