Federal Communications Commission DA 08-2336 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Universal Service High-Cost Filing Deadlines Federal-State Joint Board on Universal Service Advanced Communications Technology, Inc. (SAC 519004) – Form 525 Filing Appeal Allo Communications Petition for Waiver of Filing Deadline Aventure Communication Technology, LLC Petition for Waiver of Sections 54.307(c) and 54.802 of the Commission’s Rules CC Cellular Study Area Code 559002 Petition for Waiver of Section 54.307(c)(4) Line Count Certification for CETC Universal Service Funding PrairieWave Black Hills, LLC Petition for Waiver of Section 54.802(a) of the Commission’s Rules Texas RSA 1 Limited Partnership dba XIT Wireless Petition for Waiver of the Section 54.307(c)(1) Applicable to the Line Count Submission Applicable to Interstate Common Line Support ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) WC Docket No. 08-71 CC Docket No. 96-45 ORDER Adopted: October 22, 2008 Released: October 22, 2008 By the Chief, Wireline Competition Bureau: I. INTRODUCTION 1. In this order, we grant six separate requests, filed by Advanced Communications Technology, Inc. (ACT); Allo Communications (Allo); Aventure Communication Technology, LLC (Aventure); CC Cellular; PrairieWave Black Hills, LLC (PrairieWave); Texas RSA 1 Limited Partnership dba XIT Wireless (XIT) (collectively, the petitioners), for waivers of various high-cost universal service support filing deadlines set forth in sections 54.307 and 54.802 of the Federal Communications Commission’s (Commission) rules.1 For the reasons discussed below, we find that the petitioners have demonstrated that good cause warrants waiver of the Commission’s rules. 1 Advanced Communications Technology, Inc (SAC 519004) – Form 525 Filing Appeal, CC Docket No. 96-45 (filed June 6, 2007) (ACT Petition); Allo Communications Petition for Waiver of Filing Deadline, CC Docket No. 96-45 (filed Nov. 30, 2007) (Allo Petition); Aventure Communication Technology, LLC Petition for Waiver of Sections 54.307(c) and 54.802 of the Commission’s rules, CC Docket No. 96-45 (filed Feb. 11, 2008) (Aventure Federal Communications Commission DA 08-2336 2 II. BACKGROUND 2. Section 254(e) of the Communications Act of 1934, as amended (the Act), provides that “only an eligible telecommunications carrier [(ETC)] designated under section 214(e) shall be eligible to receive specific Federal universal service support.”2 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 local exchange carrier (LEC) designated as an ETC must file with the Universal Service Administrative Company (USAC), working line count data according to the following schedule: (1) No later than July 31st of each year, submit data as of December 31st of the previous calendar year; (2) No later than September 30th of each year, submit data as of March 31st of the existing calendar year; (3) No later than December 30th of each year, submit data as of June 30th of the existing calendar year; and (4) No later than March 30th of each year, submit data as of September 30th of the previous calendar year; in order to receive high-cost support for those quarterly periods.5 4. To receive Interstate Access Support (IAS) pursuant to section 54.802 of the Commission’s rules, an ETC that is providing service within an area served by a price cap LEC must file certain data with USAC to receive funding.6 Specifically, an ETC must submit line count data showing separately the number of residential/single-line business lines, and multi-line business lines within its study area on a Petition); CC Cellular Petition for Waiver of Section 54.307(c)(4) Line Count Certification for CETC Universal Service Funding, CC Docket No. 96-45 (filed Nov. 11, 2007) (CC Cellular Petition); PrairieWave Black Hills, LLC Petition for Waiver of Section 54.802(a) of the Commission’s Rules, CC Docket No. 96-45 (filed Apr. 9, 2007) (PrairieWave Petition); Texas RSA 1 Limited Partnership dba XIT Wireless Petition for Waiver of Section 54.307(c)(1) Applicable to the Line Submission Applicable to Interstate Common Line Support, CC Docket No. 96- 45 (filed Dec. 21, 2007) (XIT Petition for Waiver); 47 C.F.R. §§ 54.307, 54.802. 2 47 U.S.C. § 254(e). 3 Id. 4 See, e.g., 47 C.F.R. §§ 54.307 (competitive ETC line count filing requirements), 54.313 (certification requirements regarding use of high-cost support by non-rural carriers), 54.314 (certification requirements regarding the use of high-cost support by rural carriers), 54.802(a) (ETC line count filing requirements for Interstate Access Support (IAS)), 54.809 (certification requirements regarding the use of IAS), 54.903 (data filing requirements for Interstate Common Line Support (ICLS)), 54.904 (certification requirements regarding the use of ICLS). 5 47 C.F.R. § 54.307(c). 6 47 C.F.R. § 54.802(a). Federal Communications Commission DA 08-2336 3 quarterly basis.7 Mandatory line count data are due on the last business day of March, June, September, and December of each year.8 5. ACT’s Petition for Waiver. On June 6, 2007, ACT requested a waiver of section 54.307(c)(3) of the Commission’s rules.9 ACT missed the December 30, 2005, line count filing deadline, and instead filed its data on January 3, 2006, two business days after the deadline.10 ACT states that it attempted to send the required data to USAC by electronic mail (e-mail) before the deadline but, due to transmission problems, USAC did not receive the e-mail. 11 ACT argues that the Commission should grant its waiver request because ACT attempted to send the filing before the deadline and ACT immediately corrected its error by filing the required data with USAC.12 In response to missing the filing deadline, ACT has revised its internal filing procedures by establishing additional electronic calendar reminders and assigning filing responsibility to two employees.13 Additionally, in the future, ACT intends to submit its data electronically, one week before the applicable deadline.14 6. Allo’s Petition for Waiver. On November 30, 2007, Allo Communications requested a waiver of section 54.802(a) of the Commission’s rules.15 Allo missed the September 28, 2007, line count filing deadline, and instead filed its data on September 30, 2007, two days after the filing deadline.16 Allo states that it mistakenly filed its line count data for all high-cost support mechanisms on the September 30th deadline set out in section 54.307(c)(2) of the Commission’s rules, rather than separately filing its IAS line count data on September 28th, as required in section 54.802(a) of the Commission’s rules.17 Allo has committed to change its internal procedures to account for the different filing deadlines.18 7. Aventure’s Petition for Waiver. On February 11, 2008, Aventure requested a waiver of section 54.307(c) of the Commission rules.19 Aventure states that it unintentionally missed the December 7 Id. 8 Id.; see also Access Charge Reform, Price Cap Performance Review for Local Exchange Carriers, Low-Volume Long-Distance Users, Federal-State Joint Board on Universal Service, 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, 13060, para. 227 (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 (5th Cir. 2001). 9 ACT Petition at 1; 47 C.F.R. § 54.307(c)(3). 10 ACT Petition at 1. 11 Id. 12 Id. at 1-2. 13 Letter from Dough Eidahl, Vice-President of Consulting, Vantage Point Solutions, to Marlene Dortch, Secretary, Federal Communications Commission, CC Docket No. 96-45 (filed July 3, 2008) (ACT July 3, 2008 Ex Parte Letter). 14 Id. 15 Allo Petition at 1; 47 C.F.R. § 54.802(a). 16 Allo Petition at 1. 17 Id.; 47 C.F.R. §§ 54.307(c)(2), 54.802(a). 18 Allo Petition at 1. 19 Aventure Petition at 1; 47 C.F.R. § 54.307(c); see also Letter from Jennifer Kashatus, Attorney for Aventure, to Marlene Dortch, Secretary, Federal Communications Commission, CC Docket No. 96-45 (filed May 1, 2008) (clarifying that Aventure does not seek a waiver of 47 C.F.R. § 54.802). Federal Communications Commission DA 08-2336 4 30, 2007, deadline to file line count data.20 On January 11, 2008, Aventure discovered that it missed the filing deadline and sent the required data to USAC, which received the data on January 14, 2008, ten business days after the deadline.21 To ensure future filings are timely, Aventure has assigned filing responsibilities to another employee and instituted internal measures involving management oversight of filings.22 Aventure contends that it has demonstrated there is good cause, it is in the public interest, and it is consistent with Commission precedent to grant its waiver request because Aventure promptly corrected its error, the loss of high-cost support may harm Aventure’s customers, and Aventure has taken steps to ensure future filings are timely.23 8. CC Cellular’s Petition for Waiver. On November 11, 2007, CC Cellular requested a waiver of the March 30, 2007, filing deadline established by section 54.307(c)(4) of the Commission’s rules.24 CC Cellular claims to have mailed the required data before the deadline, but USAC received it on April 6, 2007, four business days after the deadline.25 CC Cellular states that it has revised its internal filing procedures and will now mail the required data at least five business days before any filing deadline, use overnight mail, track its mailings, and verify its mailing dates.26 CC Cellular argues it is in the public interest to grant its waiver request because it will ensure that CC Cellular can continue to provide “quality service to underserved areas of rural Nevada.”27 9. PrairieWave’s Petition for Waiver. On April 9, 2007, PrairieWave filed a request for waiver of section 54.802(a) of the Commission’s rules to permit PrairieWave to receive IAS for the second quarter of 2007 despite it having missed the March 30, 2007, filing deadline.28 PrairieWave filed the required data on April 9, 2006, six business days after the deadline.29 In support of its waiver request, PrairieWave states that it missed the filing deadline due to a merger between its parent company and another company.30 PrairieWave relies on its prior compliance with the line count filing deadline requirements, stating that it has never before failed to meet the relevant filing date.31 PrairieWave also asserts that Commission precedent supports granting its waiver request because it filed the required data within six business days of the deadline and has committed to revise its internal filing procedures.32 20 Aventure Petition at 2; 47 C.F.R. § 54.307(c). Because December 30, 2007, fell on a Sunday, the filing was due the following business day, Monday, December 31, 2007. 21 Aventure Petition at Ex. 1, Decl. of Brad Chapman, para. 9. 22 Id. at 5-6. 23 Id. at 3-4 (citing Cellular South Licensees, Inc., Petition for Waiver of Section 54.802(a) of the Commission’s Rules, CC Docket No. 96-45, Order, 21 FCC Rcd 9165 (Wireline Comp. Bur. 2006) (Cellular South Order); Verizon Communications Inc. Petition for Waiver of Section 54.802(a) of the Commission’s Rules, CC Docket No. 96-45, Order, 21 FCC Rcd 10155 (Wireline Comp. Bur. 2006) (Verizon Order)). 24 CC Cellular Petition at 1; 47 C.F.R. § 54.307(c). 25 CC Cellular Petition at 2. 26 Id. 27 Id. 28 PrairieWave Petition at 1. 29 Id. at 1. 30 Id. 31 Id. at 1-2, 4. 32 Id. at 4 (citing Citizens Communications and Frontier Communications Petition for Waiver of Section 54.802(a) of the Commission’s Rules, CC Docket No. 96-45, Order, 20 FCC Rcd 16761 (Wireline Comp. Bur. 2005) (Citizens/Frontier Order); Verizon Order, 21 FCC Rcd 10155; AT&T Communications of NY & AT&T Federal Communications Commission DA 08-2336 5 10. XIT’s Petition for Waiver. On December 12, 2007, XIT requested a waiver of the July 31, 2007, filing deadline established under section 54.307(c)(1) of the Commission’s rules.33 XIT asserts that it missed the deadline due to employee error.34 In July 2007, the employee responsible for submitting the required data informed XIT that all of the July filings would be submitted.35 However, the employee resigned and, on August 6, 2007, XIT discovered that the employee had not filed the required data.36 On August 17, 2007, thirteen business days after the deadline, XIT filed the required data with USAC.37 To ensure that future filings are timely, XIT has assigned filing responsibilities to one central manager, requires that all filings be finalized and reviewed by the manager fourteen days before the deadline, and sends filings by overnight delivery or via hand-delivery.38 XIT argues that a waiver is in the public interest because XIT corrected its error by immediately filing the required data, it has taken steps to ensure future filings are timely, and grant of its waiver request will not harm any other party.39 XIT claims that Commission precedent supports grant of its waiver request.40 XIT also asserts that denying its request would frustrate the purpose of section 254(e) of the Act.41 A. DISCUSSION 11. We find that the petitioners have demonstrated that there is good cause to waive the applicable sections of the Commission’s rules.42 USAC processes a tremendous amount of data each year. It is, therefore, administratively necessary to require carriers to meet the filing deadlines absent special circumstances.43 Although our rules require that data must be received by the applicable deadline, we find that petitioners have demonstrated that, in these special circumstances, there is good cause to waive the filing deadlines.44 Specifically, we find that waivers are warranted because the petitioners Communications of California Petition for Waiver of Section 54.802(a) of the Commission’s Rules, CC Docket No. 96-45, Order, 22 FCC Rcd 953 (Wireline Comp. Bur. 2007) (AT&T Order)). 33 XIT Petition at 1; 47 C.F.R. § 54.307(c)(1). 34 XIT Petition at 3-4. 35 Id. at 4. 36 Id. 37 Id. 38 Id. at 6. 39 Id. at 7-8. 40 Id. at 7 (citing Verizon Order, 21 FCC Rcd 10155). 41 XIT Petition at 7; 47 U.S.C. § 254(e). 42 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. 43 FiberNet, LLC, Petition for Waiver of Section 54.307(c) of the Commission’s Rules and Regulations, CC Docket No. 96-45, Order, 19 FCC Rcd 8202, 8204, para. 5 (Wireline Comp. Bur. 2004). It is the responsibility of ETCs to familiarize themselves with any applicable regulations, and to ensure that filings are timely received. See 47 C.F.R. § 0.406. See also Citizens/Frontier Order, 20 FCC Rcd at 16763, para. 7. 44 The Commission sought comment on all of the petitions. Comment Sought on Petitions Requesting Waiver of Various Filing Requirements Related to the Universal Service Program, CC Docket No. 96-45, Public Notice, 22 Federal Communications Commission DA 08-2336 6 promptly filed the required data and have revised their internal procedures to ensure compliance with the Commission’s rules. In instances where carriers have filed the required data shortly after filing deadlines, the Commission has waived its rules.45 The petitioners filed the required data between one and thirteen business days after the deadline.46 Accordingly, we find that, by filing the required data within fourteen business days after the applicable filing deadlines, the petitioners promptly remedied their errors. To ensure the Commission deadlines are met, these petitioners have revised their filing procedures.47 We note that these steps are similar to those taken by other carriers who missed filing deadlines but were FCC Rcd 14,005 (Wireline Comp. Bur. 2007) (seeking comment on ACT’s petition); Comment Sought on Allo Communications Petition for Waiver of a Filing Deadline Related to the Universal Service Program, CC Docket No. 96-45, Public Notice, 22 FCC Rcd 21855 (Wireline Comp. Bur. 2007); Comment Sought on Petitions for Waiver of Filing Deadlines Related to the Universal Service Program, CC Docket No. 96-45, Public Notice, 23 FCC Rcd 2892 (Wireline Comp. Bur. 2008) (seeking comment on Aventure’s Petitions); Comment Sought on CC Cellular’s Petition for Waiver of a Filing Deadline Related to the Universal Service Program, CC Docket No. 96- 45, Public Notice, 22 FCC Rcd 20729 (Wireline Comp. Bur. 2007); Comment Sought on Petitions Requesting Waiver of Various Filling Requirements, CC Docket No. 96-45, Public Notice, 22 FCC Rcd 11157 (Wireline Comp. Bur. 2007) (seeking comment on PrairieWave’s petition); Comment Sought on Petitions for Waiver of Filing Deadlines Related to the Universal Service Program, CC Docket No. 96-45, Public Notice, 23 FCC Rcd 430 (Wireline Comp. Bur. 2008) (seeking comment on XIT’s petitions). The Commission received comments opposing Aventure’s petition. See Aventure Communication Technology, LLC Petition for Waiver of Sections 54.307(c) and 54.802 of the Commission’s Rules Opposition of Sprint Nextel Corporation, CC Docket No. 96-45 (filed Mar. 31, 2008) (Sprint Opposition); Aventure Communication Technology, LLC Petition for Waiver of Sections 54.307(c) and 54.802 of the Commission’s Rules Opposition of AT&T Inc., CC Docket No. 96-45 (filed Mar. 31, 2008) (AT&T Opposition); Aventure Communication Technology, LLC Petition for Waiver of Sections 54.307(c) and 54.802 of the Commission’s Rules Opposition of Qwest Communications International Inc. to Aventure’s Petition for Waiver, CC Docket No. 96-45 (filed Mar. 31, 2008) (Qwest Opposition) (collectively, Aventure opponents). The Aventure opponents assert that the Commission should not grant Aventure’s waiver request because Aventure is engaged in “traffic pumping” and “access stimulation.” Sprint Opposition at 1; AT&T Opposition at 6; Qwest Opposition at 1. The issues raised by the Aventure opponents are not related to the rule waivers sought by Aventure, but should instead be raised in the rulemaking proceeding initiated by the Commission to address these issues. See Establishing Just and Reasonable Rates for Local Exchange Carriers, WC Docket No. 07-137, Notice of Proposed Rulemaking, 22 FCC Rcd 17989 (2007) (considering “whether the current rules governing the tariffing of traffic-sensitive switched access services by [LEC’s] are ensuring that rates remain just and reasonable”). The Aventure opponents may also file formal complaints with the Commission. See, e.g., Qwest Communications Corp. v. Farmers and Merchants Mutual Tel. Co., File No. EB-07-MD-001, Order, 22 FCC Rcd 17973 (2007) (subsequent history omitted) (granting in part a formal complaint brought by Qwest Communications Corp. based on similar issues). 45 See, e.g., Citizens/Frontier Order, 20 FCC Rcd at 16764, para. 9 (waiving filing deadline when the filing was submitted two business days after the deadline); 2005 FiberNet Order, 20 FCC Rcd at 20317, para. 6 (waiving filing deadline when the filing was submitted five days after the deadline); Northwest Dakota Cellular of North Dakota Limited Partnership; North Central RSA 2 of North Dakota Limited Partnership; North Dakota RSA No. 3 Limited Partnership; Badlands Cellular of North Dakota Limited Partnership; North Dakota 5-Kidder Limited Partnership; and Bismarck MSA Limited Partnership Petition for Waiver of Section 54.307 of the Commission’s Rules, CC Docket No. 96-45, Order, 21 FCC Rcd 9179, 9181, para. 7 (Wireline Comp. Bur. 2006) (waiving filing deadline when the filing was submitted one day after the deadline); Verizon Order, 21 FCC Rcd at 10157, para. 9 (Wireline Comp. Bur. 2006) (waiving a filing deadline when the filing was submitted two business days after the deadline); AT&T Order, 22 FCC Rcd at 954, para. 4 (waiving filing deadline when the filing was submitted two business days after the deadline); NPCR, Inc. Petition for Waiver of Section 54.802(a) of the Commission’s Rules, CC Docket No. 96-45, Order, 22 FCC Rcd 560 (Wireline Comp. Bur. 2007) (NPCR Order) (waiving filing deadline when the filing was submitted one business day after the deadline). 46 ACT Petition at 1; Allo Petition at 1; Aventure Petition at Ex. 1, Decl. of Brad Chapman, para. 9; CC Cellular Petition at 2; PrairieWave Petition at 1; XIT Petition at 4. 47 ACT July 3, 2008 Ex Parte Letter; Allo Petition at 1; Aventure Petition at 5-6; CC Cellular Petition at 3; PrairieWave Petition at 4; XIT Petition at 6. Federal Communications Commission DA 08-2336 7 granted waivers of the missed deadlines.48 In granting other waiver requests, the Commission has found that carriers must comply with their commitments to revise their internal procedures to ensure that their filings will be accurately and timely submitted.49 Similarly, we rely on these petitioners to fulfill their commitments to adhere to their revised filing procedures, and do not expect these petitioners to seek similar waivers in the future. 12. We find that petitioners’ circumstances are unique and emphasize that, going forward, we expect petitioners to file the required information with USAC and the Commission by the applicable filing deadlines. We remind carriers that it is their responsibility to ensure that their filings are timely received in the appropriate places, regardless of the time and method of their filings. Carriers now have many options by which to file, including U.S. Mail, other sources of commercial delivery, facsimile, and e-mail. For instance, any carrier receiving funding from the high-cost universal support mechanism may file timely via e-mail at hcfilings@HCLI.universalservice.org. Additional information regarding USAC’s filing procedures and deadlines can be found at http://www.usac.org/hc/tools/filing-tool/default.aspx. We encourage filers to use any and all methods they deem necessary to ensure that their filings are timely received. In addition, due to the procedures the petitioners have enacted in response to these late filings, we do not expect these petitioners to seek similar waivers in the future. III. ORDERING CLAUSES 13. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 5(c), 214, and 254 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 155(c), 214, 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, that this order is ADOPTED. 14. IT IS FURTHER ORDERED that the petition for waiver of section 54.307 of the Commission’s rules, 47 C.F.R. § 54.307, filed by Vantage Point for Advanced Communications Technology, Inc., IS GRANTED. 15. IT IS FURTHER ORDERED that the petition for waiver of section 54.802 of the Commission’s rules, 47 C.F.R. § 54.802, filed by Allo Communications., IS GRANTED. 16. IT IS FURTHER ORDERED that the petition for waiver of section 54.307(c) of the Commission’s rules, 47 C.F.R. § 54.307(c), filed by Aventure Communication Technology, LLC, IS GRANTED. 17. IT IS FURTHER ORDERED that the petition for waiver of section 54.307(c)(4) of the Commission’s rules, 47 C.F.R. § 54.307(c)(4), filed by CC Cellular, IS GRANTED. 18. IT IS FURTHER ORDERED that the petition for waiver of section 54.802(a) of the Commission’s rules, 47 C.F.R. § 54.802(a), filed by PrairieWave Black Hills, LLC, IS GRANTED. 19. IT IS FURTHER ORDERED that the petition for waiver of section 54.307(c)(1) of the Commission’s rules, 47 C.F.R. § 54.307(c)(1), filed by Texas RSA 1 Limited Partnership dba XIT Wireless, IS GRANTED. 48 See, e.g., AT&T Order, 22 FCC Rcd at 954, para. 5 (instituting e-mail reminders and quarterly reviews by management); NPCR Order, 22 FCC Rcd at 563, para. 9 (assigning filing responsibility to a manager). 49 See, e.g., Citizens/Frontier Order, 20 FCC Rcd at 16764, para. 10; Verizon Order, 21 FCC Rcd at 10158, para. 10; AT&T Order, 22 FCC Rcd at 954, para. 5; NPCR Order, 22 FCC Rcd at 563, para. 9. Federal Communications Commission DA 08-2336 8 20. IT IS FURTHER ORDERED that, pursuant to section 1.102(b) of the Commission’s rules, 47 C.F.R. §§1.102(b), this order SHALL BE EFFECTIVE upon release. FEDERAL COMMUNICATIONS COMMISSION Dana R. Shaffer Chief Wireline Competition Bureau