Federal Communications Commission DA 18-123 Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of Lifeline and Link Up Reform and Modernization ) ) ) ) WC Docket No. 11-42 ORDER Adopted: February 9, 2018 Released: February 9, 2018 By the Chief, Wireline Competition Bureau: I. INTRODUCTION 1. In this Order, the Wireline Competition Bureau (Bureau) grants in part the California Public Utilities Commission’s (CPUC) two petitions requesting temporary waivers of the Lifeline program’s non-usage and recertification rules for subscribers in thirteen counties affected by the California wildfires that occurred in October and December 2017. 1 Based on the record before us, we find that good cause exists to temporarily waive these rules and deadlines, as provided herein, to assist Lifeline program participants in the areas affected by the recent California wildfires. 2 II. BACKGROUND 2. In October 2017, multiple wildfires broke out in Northern California throughout Butte, Mendocino, Napa, Nevada, Solano, Sonoma, Lake, Orange, and Yuba counties. These fires caused 42 deaths, damaged or destroyed 8,700 structures, and burned 227,000 acres. 3 In its Petition, the CPUC states that the fires also caused power outages and damage to communications services. 4 The Governor of California declared a state of emergency in the aforementioned counties and shortly thereafter, on October 10, the Federal Emergency Management Agency (FEMA) declared these counties as major disaster areas. 5 3. With respect to these fires, the CPUC requests a four-month suspension of the Commission’s non-usage rules for Lifeline subscribers residing in the affected counties. The CPUC contends that a 1 See Petition of the California Public Utilities Commission for Temporary Waiver, WC Docket No. 11-42, at 1 (filed Nov. 8, 2017) (Petition) (listing Butte, Mendocino, Napa, Nevada, Solano, Sonoma, Lake, Orange, and Yuba counties as the affected counties); and Supplement to Petition of the California Public Utilities Commission for Temporary Waiver, WC Docket No. 11-42, at 1 (filed Dec. 21, 2017) (Supplemental Petition) (listing Los Angeles, Santa Barbara, San Diego, and Ventura counties as additional affected counties). See generally Jennifer Medina, Scenes of Devastation from California’s Latest Wildfire, New York Times (Dec. 5, 2017), https://www.nytimes.com/2017/12/05/us/california-wildfire-ventura.html 2 See 47 CFR §§ 54.405(e)(3), 54.405(e)(4), 54.407(c)(2), and 54.410(f). 3 Petition at 1-2; see also CAL FIRE, California Statewide Fire Summary (Oct. 30, 2017), http://calfire.ca.gov/communications/communications_StatewideFireSummary 4 Petition at 1-2. 5 Id. at 2 (citing Office of Governor, Governor Brown Issues Executive Order to Help Cut Red Tape, Expedite Recovery Efforts in Communities Impacted by Wildfires (Oct. 18, 2017), https://www.gov.ca.gov/2017/10/18/news20035/); see also FEMA, California Wildfires (DR-4344), https://www.fema.gov/disaster/4344 (last visited Feb. 1, 2018). Federal Communications Commission DA 18-123 2 temporary waiver would enable continued communications service for those who may need to replace mobile devices lost or destroyed in the fires or to re-establish communications services. 6 4. CPUC also requests a temporary waiver of the Commission’s Lifeline recertification requirements for Lifeline subscribers residing in the affected counties. 7 California Lifeline Program recertification forms are typically delivered by mail to the subscriber’s original service address. 8 The CPUC argues that if a subscriber had to relocate if his or her house was damaged or destroyed in the fires, the subscriber would have no way to receive the recertification forms. 9 Moreover, recertification forms already delivered to subscribers during the requested waiver period could have been lost or destroyed in the fires before the subscriber had an opportunity to return them. 10 Accordingly, the CPUC requests that the Commission’s renewal and recertification rules be temporarily waived for subscribers living in counties impacted by the October 2017 wildfires and whose service anniversary dates fall between October 1, 2017 and January 31, 2018. 11 The CPUC requests that those subscribers receiving a waiver be permitted to begin their recertification process again on February 1, 2018. 12 5. In December 2017, several counties in Southern California – Los Angeles, Santa Barbara, San Diego, and Ventura – were also affected by wildfires, which caused power outages, disruptions to communications services, and destroyed thousands of structures. 13 The Governor of California declared a state of emergency for these four counties and FEMA issued an emergency declaration for the area on December 8, 2017. 14 Similar to its initial Petition, the CPUC’s Supplemental Petition seeks a waiver of the Commission’s non-usage and recertification rules until March 31, 2018 for the four additional counties, citing the destruction that the December 2017 fires caused in those areas. 15 III. DISCUSSION 6. Generally, the Commission’s rules may be waived for good cause shown. 16 The Commission may exercise its discretion to waive a rule where the particular facts make strict compliance inconsistent with the public interest. 17 In addition, the Commission may take into account considerations of hardship, equity, or more effective implementation of overall policy on an overall basis. 18 We grant in part the petitions for waiver of the Commission’s non-usage and recertification rules and target our relief to areas most likely to have sustained damage from the wildfires. 7. Together, the petitions request a four-month-waiver of the Commission’s Lifeline program’s non-usage and recertification rules for thirteen counties affected by the October and December 2017 6 Petition at 2-3. 7 See 47 CFR §§ 54.405(e)(4) and 54.410(f). 8 Petition at 3. 9 Id. 10 Id. 11 Id. at 2-3. 12 Id. at 4. 13 Supplemental Petition at 1-2. 14 Id. (citing FEMA, California Wildfires (EM-3396), https://www.fema.gov/disaster/3396 (last visited Feb. 1, 2018)). 15 Id. 16 47 CFR § 1.3. 17 Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990). 18 WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166. Federal Communications Commission DA 18-123 3 wildfires in California. 19 Based on the record before us, we find that good cause exists to waive through February 15, 2018 sections 54.405(e)(3), 54.405(e)(4), 54.407(c)(2), and 54.410(f) of the Commission’s rules for all ETCs serving Lifeline subscribers residing in the Census tracts identified as affected by the October 2017 wildfires that are the subject of the Petition, as listed in Appendix B to this Order. 20 We also waive through March 31, 2018 sections 54.405(e)(3), 54.405(e)(4), 54.407(c)(2), and 54.410(f) of the Commission’s rules for all ETCs serving Lifeline subscribers residing in in the Census tracts identified as affected by the December 2017 wildfires that are the subject of the Supplemental Petition, as listed in Appendix C to this Order. 8. These Census tracts coincide with the areas identified by the California Department of Forestry and Fire Protection (CAL FIRE) as impacted by the October and December 2017 California wildfires and the counties requested by the CPUC. 21 CAL FIRE tracks all major incidents where resources are deployed and identifies coordinating local and federal administrative units. Based on its analysis of the CAL FIRE maps, the Bureau estimates that approximately 12,000 Lifeline subscribers reside in these areas. Given the extraordinary damage caused by these wildfires, strict compliance with these rules would be impracticable and would risk de-enrollment of Lifeline subscribers during the recovery efforts to rebuild in the aftermath of the fires. 9. To promote the maintenance and rebuilding of communities affected by the wildfires and to facilitate continued access to telecommunications services for disaster victims, we find good cause to temporarily waive the usage requirements in sections 54.405(e)(3) and 54.407(c)(2) of the Commission’s rules for ETCs with subscribers in the Census tracts identified in Appendix B and Appendix C of this Order. Under these rules, ETCs must de-enroll Lifeline subscribers who do not pay a monthly fee for their Lifeline-supported service and do not use that service for 30 consecutive days. 22 A temporary waiver of these rules will help Lifeline-supported consumers retain access to emergency communications services during this disaster, and allows ETCs to continue providing Lifeline service to disaster victims in the affected areas without requiring those subscribers to de-enroll and re-enroll in the program as they continue to rebuild from the devastation of these wildfires. After the expiration of the waiver periods specified in Appendix A of this Order, Lifeline subscribers who are subject to the non-usage rule will have 30 days to use their Lifeline service for the purposes of section 54.405(e)(3) of the Commission’s rules before being subject to de-enrollment from the program. To the extent that subscribers were de- enrolled or not claimed for support during the relevant waiver period, ETCs may claim federal Lifeline support for qualifying service provided during the waiver period and continue providing Lifeline- supported service to impacted subscribers. 10. We also find good cause to temporarily waive the recertification requirements in sections 54.405(e)(4) and 54.410(f) of the Commission’s rules for ETCs with subscribers in the Census tracts identified in Appendix B of this Order whose service anniversary dates fall on or between October 1, 2017 and January 31, 2018; and subscribers in the Census tracts identified in Appendix C of this Order whose service anniversary dates fall on or between December 1, 2017 and March 31, 2018. 23 Waiver of these rules will allow ETCs serving Lifeline subscribers in these areas additional time to complete the recertification process for those subscribers most likely to have been impacted by the wildfires. Damage 19 Petition at 1; Supplemental Petition at 1-2. 20 We grant this temporary waiver for two additional weeks beyond the time period requested in the Petition to allow the CPUC to update its procedures and give any necessary guidance to impacted ETCs. 21 CAL FIRE, a California state agency, releases maps identifying the areas in the state that were impacted by wildfires based on its incident information database. See CAL FIRE, California Statewide Fire Map, http://www.calfire.ca.gov/general/firemaps(last visited Feb. 5, 2018); CAL FIRE, Incident Information, http://cdfdata.fire.ca.gov/incidents/incidents_archived (last visited Feb. 5, 2018). 22 See Petition at 1; Supplemental Petition at 1-2. 23 47 CFR §§ 54.405(e)(4), 54.410(f). See also Appendix A. Federal Communications Commission DA 18-123 4 to residential buildings and infrastructure resulting from the wildfires will make it difficult, if not impossible, for Lifeline subscribers to receive and respond to mailed recertification forms from the California LifeLine Program. 24 At the expiration of the waiver period, we expect that the California LifeLine administrator will begin recertification efforts promptly, as described in the Petition and Supplemental Petition. Any subscriber whose anniversary date falls within the waiver period but has already recertified their eligibility is not required to undergo an additional recertification at the end of the waiver period. 11. While the Bureau acknowledges the magnitude of the October and December 2017 California wildfires, the Bureau finds that the CPUC’s request for waivers on a countywide basis is overly broad and would likely encompass hundreds of thousands of Lifeline subscribers who were not personally impacted by the wildfires. By the CPUC’s own estimation, granting the requested waivers on a countywide basis would encompass a total of 1.54 million Lifeline subscribers, 25 but neither the CPUC’s submissions nor external sources indicate that that number of consumers have been evacuated, lost communications services, or otherwise have been impacted by the wildfires so significantly as to justify a waiver of the rules. The Bureau finds that limiting relief to subscribers in the Census tracts corresponding to the areas identified by CAL FIRE as being at least partially impacted by the wildfires would target relief to those who were most likely to be impacted by the wildfires and for whom relief would be needed. 12. Preventing Waste, Fraud, and Abuse. We are committed to guarding against waste, fraud, and abuse in the Universal Service Fund (USF) programs. Although we grant the limited waivers described herein, service providers remain otherwise subject to audits and investigations to determine compliance with USF Program rules and requirements. We will require the Universal Service Administrative Company (USAC) to recover funds that we discover were not used properly through its normal processes. We emphasize that we retain the discretion to evaluate the uses of monies disbursed through the USF Programs and to determine on a case-by-case basis that waste, fraud, or abuse of program funds occurred and that recovery is warranted. Additionally, in the event we discover any improper activity resulting from our action today, we will subject the offending party to all available penalties at our disposal, and will direct USAC to recover funds, assess retroactive fees and/or interest, or both. We remain committed to ensuring the integrity of the Lifeline program and will continue to aggressively pursue instances of waste, fraud, or abuse under our own procedures and in cooperation with law enforcement agencies. IV. ORDERING CLAUSES 13. ACCORDINGLY, IT IS ORDERED, pursuant to the authority contained in sections 1-4 and 254 of the Communications Act of 1934, as amended, 47 USC §§ 151-154 and 254, and sections 0.91, 0.291, and 1.3 of the Commission’s rules, 47 CFR §§ 0.91, 0.291, and 1.3, that sections 47 CFR §§ 54.405(e)(3), 54.405(e)(4), 54.407(c)(2), and 54.410(f), of the Commission’s rules are waived to the limited extent provided herein. 14. IT IS FURTHER ORDERED, that pursuant to the authority contained in sections 1-4 and 254 of the Communications Act of 1934, as amended, 47 USC §§ 151-154 and 254, and sections 0.91, 0.291, and 1.3 of the Commission’s rules, 47 CFR §§ 0.91, 0.291, and 1.3, that the request for waiver filed by the California Public Utility Commission IS GRANTED IN PART AND DENIED IN PART to the extent provided herein. 24 See Petition at 2-3; Supplemental Petition at 2. 25 See Petition at 1; Supplemental Petition at 2. Federal Communications Commission DA 18-123 5 15. IT IS FURTHER ORDERED, that pursuant to section 1.102(b)(1) of the Commission’s rules, 47 CFR § 1.102(b)(1), this Order SHALL BE EFFECTIVE upon release. FEDERAL COMMUNICATIONS COMMISSION Kris Anne Monteith Chief Wireline Competition Bureau Federal Communications Commission DA 18-123 6 APPENDIX A Application of Temporary Waiver of Non-Usage Rules Geographic Area Non-Usage Waiver Period Appendix B Census tracts October 1, 2017 – February 15, 2018 Appendix C Census tracts December 1, 2017 – March 31, 2018 Application of Temporary Waiver of Recertification Rules Geographic Area Subscriber Anniversary Date Recertification Process Begins Appendix B Census tracts October 1, 2017 – January 31, 2018 February 15, 2018 Appendix C Census tracts December 1, 2017 – March 31, 2018 April 1, 2018 Federal Communications Commission DA 18-123 7 APPENDIX B Census Tracts for October 2017 Wildfires Waiver Period Census Tract County Census Tract County 06007001600 Butte 06059052419 Orange 06007002100 Butte 06059052420 Orange 06007002200 Butte 06059075605 Orange 06007002500 Butte 06095252201 Solano 06007003300 Butte 06095252310 Solano 06007003700 Butte 06095252903 Solano 06033000600 Lake 06095252904 Solano 06033000701 Lake 06097150100 Sonoma 06033000702 Lake 06097150202 Sonoma 06045010600 Mendocino 06097150303 Sonoma 06045010801 Mendocino 06097150306 Sonoma 06045010802 Mendocino 06097150500 Sonoma 06045010900 Mendocino 06097150612 Sonoma 06055200900 Napa 06097151309 Sonoma 06055201003 Napa 06097151502 Sonoma 06055201102 Napa 06097151503 Sonoma 06055201200 Napa 06097151601 Sonoma 06055201401 Napa 06097151602 Sonoma 06055201402 Napa 06097152100 Sonoma 06055201403 Napa 06097152400 Sonoma 06055201500 Napa 06097152502 Sonoma 06055201800 Napa 06097152600 Sonoma 06055201900 Napa 06097152701 Sonoma 06057000200 Nevada 06097152702 Sonoma 06057000300 Nevada 06097152801 Sonoma 06057000401 Nevada 06097152802 Sonoma 06057000402 Nevada 06097152905 Sonoma 06057000502 Nevada 06097152906 Sonoma 06059021826 Orange 06097153807 Sonoma 06059021912 Orange 06097154100 Sonoma 06059021917 Orange 06097154303 Sonoma 06059021923 Orange 06115041000 Yuba 06059021924 Orange 06115041100 Yuba Federal Communications Commission DA 18-123 8 APPENDIX C Census Tracts for December 2017 Wildfires Waiver Period Census Tract County Census Tract County 06037103101 Los Angeles 06083001500 Santa Barbara 06037103200 Los Angeles 06083001706 Santa Barbara 06037103300 Los Angeles 06083001800 Santa Barbara 06037104124 Los Angeles 06083001901 Santa Barbara 06037104204 Los Angeles 06083001906 Santa Barbara 06037106111 Los Angeles 06083002809 Santa Barbara 06037106112 Los Angeles 06083002932 Santa Barbara 06037121102 Los Angeles 06083003102 Santa Barbara 06037262200 Los Angeles 06111000100 Ventura 06037262301 Los Angeles 06111000200 Ventura 06037920106 Los Angeles 06111000304 Ventura 06037920107 Los Angeles 06111000400 Ventura 06037920200 Los Angeles 06111000800 Ventura 06037920326 Los Angeles 06111000901 Ventura 06037920339 Los Angeles 06111000902 Ventura 06037930101 Los Angeles 06111000903 Ventura 06037930200 Los Angeles 06111001001 Ventura 06037980021 Los Angeles 06111001002 Ventura 06037980026 Los Angeles 06111001102 Ventura 06073018611 San Diego 06111001204 Ventura 06073018700 San Diego 06111001206 Ventura 06073018802 San Diego 06111001700 Ventura 06073018803 San Diego 06111001800 Ventura 06073019101 San Diego 06111001900 Ventura 06073020903 San Diego 06111002000 Ventura 06073021100 San Diego 06111002102 Ventura 06083000501 Santa Barbara 06111002200 Ventura 06083000700 Santa Barbara 06111002300 Ventura