Federal Communications Commission DA 97-269
Before the
Federal Communications Commission 
Washington, D.C. 20554
In the Matter of ) AAD 96-120 
Petition for Waivers Filed by )
)Union Telephone Company, 
Inc. and ) 
U S WEST Communications, Inc. )
)Concerning Section 61.41 
(c)(2) and 69.3(e)( 11) ) 
and the Definition of "Study Area" ) 
Contained in the Part 36 Appendix-Glossary ) 
of the Commission's Rules )
MEMORANDUM OPINION AND ORDER 
Adopted: February 5, 1997 Released: February 6, 1997
By the Chief, Accounting and Audits Division 
Common Carrier Bureau:
I. INTRODUCTION
1. On November 22, 1996, Union Telephone Company, Inc. ("Union Telephone") and 
U S WEST Communications, Inc. ("U S WEST") filed a petition for waiver of various 
Commission rules. The petitioners seek waivers of the definition of "Study Area" contained in 
the Part 36 Appendix-Glossary of the Commission's rules. The requested waivers would allow 
Union Telephone and U S WEST to alter the boundaries of their existing Wyoming study areas 
as a result of U S WESTs sale of the Afton exchange to Union Telephone.
2. In addition, Union seeks a waiver of the price cap rule contained in Section 
61.41(c)(2) of the Commission's rules. This rule requires non-price cap companies, and the 
telephone companies with which they are affiliated, to become subject to price cap regulation 
after acquiring a price cap company or any part thereof. The requested waiver would permit 
Union Telephone to remain under rate-of-return regulation after acquiring the exchange that 
currently is under price cap regulation. Finally, Union Telephone seeks waiver of Section 
69.3(e)(ll) of the Commission's rules, if necessary, to utilize the National Exchange Carrier 
Association ("NECA") as its carrier common line tariff administer.1
As shown in para. 19, infra, a waiver is not required.
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3. On December 13, 1996, the Common Carrier Bureau ("Bureau") released a Public 
Notice soliciting comments on the petition.2 On January 8, 1997, the petitioners provided 
additional information concerning the petition.3 In this Order, we find that the public interest 
would be served by allowing the petitioners to alter their study area boundaries and allowing 
Union Telephone to continue operating under rate-of-return regulation after acquiring the 
exchange. We therefore grant the petition, subject to the conditions stated below.
II. STUDY AREA WAIVERS 
A. Background
4. A study area is a geographic segment of an incumbent local exchange carrier's 
("ILEC") telephone operations. Generally, a study area corresponds to an DLEC's entire service 
territory within a state. Thus, ILECs operating in more than one state typically have one study 
area for each state, and ILECs operating in a single state typically have a single study area. 
Study area boundaries are important primarily because ILECs perform jurisdictional separations 
at the study area level.4 For jurisdictional separations purposes, the Commission froze all study 
area boundaries effective November 15, 1984.5 The Commission took that action primarily to 
ensure that ILECs do not set up high-cost exchanges within their existing service territories as 
separate study areas to maximize interstate cost allocations.6 An ILEC must apply to the 
Commission for a waiver of the frozen study area rule if it wishes to sell or purchase an 
exchange.7
2 Union Telephone Company, Inc. and U S WEST Communications, Inc., Public Notice, released December 
13,1996, DA 96-2103, AAD 96-120. Supporting comments were filed by the United States Telephone Association.
3 Letter from Margaret Nyland, Kraskin & Lesse, to Adrian Wright, FCC, dated Jan. 8, 1997. ("Nyland 
Letter").
4 The phrase "jurisdictional separations," or "separations," refers to the process of dividing costs and revenues 
between a carrier's state and interstate operations. See generally 47 C.F.R. §§ 36.1-36.741.
5 47 C.F.R. § 36 app. (defining "study area"). See MTS and WATS Market Structure, Amendment of Part 
67 of the Commission's Rules and Establishment of a Joint Board, Recommended Decision and Order, 49 Fed. Reg. 
48325 (Dec. 12,1984) ("1984 Joint Board Recommended Decision"); id., Decision and Order, 50 Fed. Reg. 939 (Jan. 
8, 1985) ( "1985 Order Adopting Recommendation"); see also Amendment of Part 36 of the Commission's Rules and 
Establishment of a Joint Board, Notice of Proposed Rulemaking, 5 FCC Red 5974 (Oct. 10, 1990) ("Study Area 
Notice").
6 See 1984 Joint Board Recommendation Decision, supra note 5166; 7955 Order Adopting Recommendation, 
supra note 5, H 1, 5.
7 47 C.F.R. §§ 1.3, 36 app.
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5. Waiver of Commission rules is appropriate only if special circumstances warrant 
deviation from the general rule and such a deviation will serve the public interest.8 In evaluating 
petitions seeking a waiver of the rule freezing study area boundaries, the Commission employs 
a three-prong standard: first, the change in study area boundaries does not adversely affect the 
universal service fund ("USF") support program;9 second, the state commission(s) having 
regulatory authority over the exchange(s) to be transferred does not object to the change; and 
third, the public interest supports the change.10
6. The Commission's concern about adverse USF impacts was mitigated, in the short term 
at least, by its adoption of the Joint Board's recommendation for an indexed cap on the USF.11 
The Commission nonetheless recognized that, even in the short term, the granting of a study area 
waiver may adversely affect the fund's distribution, if not its size. Under the indexed USF cap 
rules, any study area reconfiguration that increases the USF draw of one USF recipient often 
reduces that of other USF recipients. Consequently, in evaluating whether a study area change
8 Northeast Cellular Tel. Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see also WAIT Radio v. FCC, 
418 F.2d 1153, 1159 (D.C. Cir. 1969); 47 C.F.R. § 1.3.
9 See 1984 Joint Board Recommended Decision, supra note 5, f 66. The Commission created the USF to 
preserve and promote universal service. See Amendment of Part 67 of the Commission's Rules and Establishment 
of a Joint Board, Decision and Order, 96 FCC 2d 781 (1984). The USF allows HJECs with high local loop plant 
costs to allocate a portion of those costs to the interstate jurisdiction, thus enabling the states to establish lower local 
exchange rates in study areas receiving such assistance. To determine which ILEC study areas are eligible for USF 
support, the USF rules prescribe an eligibility threshold set at 115 percent of the national average unseparated loop 
cost per working loop. When the average loop cost in a particular study area exceeds that threshold, the study area 
is eligible for support equal to a certain percentage of the average loop cost in excess of that threshold. The study 
area becomes eligible for higher levels of support as its average loop cost rises above additional thresholds set farther 
above the national average unseparated loop cost Because USF assistance is targeted primarily at small study areas, 
the level of support provided at each threshold generally is greater if the study area has 200,000 or fewer working 
loops. See 47 C.F.R. § 36.631.
10 See U S WEST Communications, Inc., and Eagle Telecommunications, Inc., Petition for Waiver of the 
Definition of "Study Area" Contained in Part 36, Appendix-Glossary of the Commission's Rules, Memorandum 
Opinion and Order, 10 FCC Red 1771, f 5 (1995) ("U S WEST-Eagle Study Area Order").
" The Joint Board recommended, and the Commission adopted, interim rules that limit the rate of growth of 
the USF to the rate of growth in the total number of working loops nationwide. See generally Amendment of Part 
36 of the Commission's Rules and Establishment of a Joint Board, Recommended Decision, 9 FCC Red 334 (1993) 
("1993 Joint Board Recommended Decision^; id., Report and Order, 9 FCC Red 303 ("Interim Cap Order"). The 
Commission extended these interim rules through July 1, 1996. Amendment of Part 36 of the Commission's Rules 
and Establishment of a Joint Board, Report and Order, 11 FCC Red 1077 (1995), summarized in 60 Fed. Reg. 65011 
(1995). Recently, the Joint Board recommended, and the Commission adopted, an extension of the interim cap rules 
on the USF until the final universal service rules become effective. Federal-State Joint Board on Universal Service, 
Recommended Decision, CC Docket No. 96-45, released June 19,1996 ("7996 Joint Board Recommended Decision "); 
id.. Report and Order, FCC 96-281, released June 26, 1996 ("Extension of Interim Cap Rules").
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would have an adverse impact on the distribution or level of the USF, the Commission applies 
a "one-percent" guideline to study area waiver requests filed after January 5, 1995.12 Under this 
guideline, no study area waiver is granted if it would result in an annual aggregate shift in USF 
assistance in an amount equal to or greater than one percent of the total USF, unless the parties 
can demonstrate extraordinary public interest benefit. To prevent ILECs from evading this 
limitation by disaggregating a single large sale of exchanges into a series of smaller transactions 
that in the aggregate have the same effect on the USF, the Commission further requires that the 
guideline be applied to all study area waivers granted to either ILEC, as a purchaser or seller, 
pending completion of the current review of the universal service program.13
B. Pleadings
7. Union Telephone currently serves 6,932 access lines and U S WEST currently serves 
222,475 access lines in Wyoming. U S WEST proposes to sell the Afton exchange serving 2,336 
access lines14 to Union Telephone. U S WEST seeks waiver of the rule freezing study area 
boundaries to enable it to remove this exchange from its Wyoming study area.15 Union 
Telephone also seeks waiver of that rule to consolidate the acquired exchange with its existing 
study area.
8. Petitioners state that the proposed changes would serve the public interest because 
Union Telephone plans to provide improved telecommunications services to rural subscribers. 
The petitioners state that Union Telephone plans to upgrade the outside plant facilities in the 
Afton exchange by installing digital loop carrier and placing new cable where necessary.16 In 
addition, the petitioners state that Union Telephone plans to upgrade and replace all aerial wire 
facilities during the first five years of service. Finally, the petitioners claim that the upgrades 
will enable Union Telephone to meet the current demand for service hi the Afton area and to 
provide service to previously unserved residents.
12 See U S WEST-Eagle Study Area Order, supra note 10, U 14-17.
13 Id. In mis context, the Commission defines the term ILEC to include all affiliated ILECs (Le., those that 
are in common control as the term "control" is defined in Section 32.9000 of the Commission's rules, 47 C.F.R. § 
32.9000). Id. I 14 note 34.
14 US WEST states that approximately 41 of the Afton access lines are located in Idaho but are served by 
U S WEST from its Wyoming study area.
15 Petition at 1.
16 Petition at 11.
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9. The petitioners state that after the transfer and upgrading of the Afton exchange, the 
USF impact would be minimal.17 Specifically, the petitioners estimate that the transfer of the 
Afton exchange out of U S WEST'S study area and into Union Telephone's study area would 
decrease U S WESTs annual USF draw by $16,000 and would increase Union Telephone's 
annual USF draw by $126,222.18 As a result, the net annual increase to the USF would be 
$110,222.
C. Discussion
10. Request for waivers. We have reviewed the data the petitioners filed with NECA19 
and the estimates filed in this proceeding and have determined that the net increase in USF draws 
will not have a substantial adverse impact on the USF total or on individual ILEC draws. In 
addition, the Public Service Commission of Wyoming and the Idaho Public Utilities Commission 
state that they do not object to these requested waivers.20 The upgrades planned by Union 
Telephone should improve customer services in the Afton exchange. We believe the petitioners 
have demonstrated that their customers will likely be well served by Union Telephone,21 and 
therefore, the requested study area waivers are likely to serve the public interest. We therefore 
find that the three-prong standard for granting a study area waiver has been met in this instance 
and that the study area waiver requests should be granted.
11. Need for imposed limits on USF draws. Although we find no reason to question 
Union Telephone's estimates of the USF impact, we nonetheless are concerned that those 
estimates may later prove inaccurate when the planned upgrades are completed. We have found 
that, even in a period of a few years, the USF payments for some ILECs have risen by 
unexpected amounts.22 These ILECs generally had undertaken substantial upgrades or expansions
17 Petition at 10.
18 Petition at Attachment B, Appendices B and C.
19 See NECA USF 1996 Submission of 199S Study Results filed October 1, 19%.
20 See Public Service Commission of Wyoming, Nunc Pro Tune Order on Remand, Docket Nos. 70000- 
TA093-150 and 7001 l-TA-93-8, dated April 18, 1996; Idaho Public Utilities Commission, Case No. USW-S-93-5, 
dated November 15, 1996.
21 See supra at 1 8.
22 See, e.g., Delta TeL Co., Inc., Waiver of the Definition of "Study-Area," Memorandum Opinion and Order, 
5 FCC Red 7100 (1990) (USF payments grew from $82400 in 1991 to approximately $445,700 in 1993); U S WEST 
Comm. and Gila River Telecomm., Inc., Petition for Waiver of the Definition of "Study Area," Memorandum 
Opinion and Order, 1 FCC Red 2161, \ 7 (1992) (Gila River estimated 1992 high-cost support to be $169,155, yet 
actual 1992 payment was $390,993, and the 1995 payment was approximately $750,000).
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Federal Communications Commission DA 97-269
of the local network in difficult-to-serve, sparsely populated exchanges that are similar to the 
exchange being acquired by Union Telephone.
12. We therefore find that the waivers should be subject to the condition that, absent 
explicit approval from the Bureau, the annual USF support provided to the Union Telephone 
study area shall not exceed the post-upgrade amount estimated in the petition.23 This limit 
ensures that the study area waivers will not, due to error or unforeseen circumstances, result in 
adverse USF impacts which substantially exceed Union Telephone's forecasts. We note that the 
Telecommunications Act of 1996, which became effective on February 8, 1996,24 requires the 
reform by May 8, 1997, of many mechanisms the Commission uses to support its universal 
service goals, including the USF.25 It is likely that any new universal service rules will alter the 
method used to determine the distribution of USF support to high-cost areas, thereby changing 
the projected level of support to Union Telephone's study area. This, in turn, may require us to 
revisit this issue, and the related waiver condition that we have established herein.
III. PRICE CAPS WAIVER 
A. Background
13. Section 61.41(c)(2) of the Commission's rules provides that, when a cost company 
acquires a price cap company, the acquiring company, and any HJEC with which it is affiliated, 
shall become subject to price cap regulation within a year of the transaction.26 The Commission 
stated that this "all-or-nothing" rule applies not only to the acquisition of an entire ILEC but also
23 Union Telephone estimates that its post-sale, post-upgrade USF draw would be $1,195,619. Petition at 10.
24 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat 56 (1996).
25 Id. 47 U.S.C. 254<a)(2). The Commission has initiated a proceeding to develop new USF rules. See 
Federal-State Joint Board on Universal Service, Notice of Proposed Rulemaking and Order Establishing Joint Board, 
61 Fed. Reg. 10499 (March 14,1996). Id. f 39. The Joint Board released its Recommended Decision on November 
8, 1996, 12 FCC Red 87.
26 47 C.F.R. § 61.41(c). See Policy and Rules Concerning Rates for Dominant Carriers, Second Report and 
Order, 5 FCC Red 6786, 6821 (1990), Erratum, 5 FCC Red 7664 (Com. Car. Bur. 1990) ("LEC Price Cap Order"), 
modified on recon., Order on Reconsideration, 6 FCC Red 2637 (1991) ("LEC Price Cap Reconsideration Order"), 
affd sub nom. National Rural Telecom Ass'n v. FCC, 988 F.2d 174 (D.C. Cir. 1993), petitions for further recon. 
dismissed, 6 FCC Red 7482 (1991), further modification on recon., Amendments of Part 69 of the Commission's 
Rules Relating to the Creation of Access Charge Subelements for Open Network Architecture, Policy and Rules 
Concerning Rates for Dominant Carriers, Report and Order and Order on Further Reconsideration and Supplemental 
Notice of Proposed Rulemaking, 6 FCC Red 4524 (1991) ("ONA Part 69 Order"), further recon.. Memorandum 
Opinion and Order on Second Further Reconsideration, 7 FCC Red 5235 (1992).
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to the acquisition of part of a study area.27 U S WEST is a price cap company28 and Union 
Telephone is a cost company.29 Hence, under this rule, Union Telephone's acquisition of a U S 
WEST exchange would obligate it to become subject to price cap regulation.
14. The Commission explained that the all-or-nothing rule is intended to address two 
concerns it has regarding mergers and acquisitions involving price cap companies. The first 
concern is that, in the absence of the rule, an ILEC might attempt to shift costs from its price cap 
affiliate to its non-price cap affiliate, allowing the non-price cap affiliate to earn more, due to its 
increased revenue requirement, without affecting the earnings of the price cap affiliate, i.e., 
without triggering the sharing mechanism. The second concern is that, absent the rule, an ILEC 
may attempt to "game the system" by switching back and forth between rate-of-return regulation 
and price cap regulation. The Commission noted, as an example, the incentive a price cap 
company may have to increase earnings by opting out of price cap regulation, building up a large 
rate base under rate-of-return regulation so as to raise rates and, then, after returning to price cap, 
cutting costs back to an efficient level. It would disserve the public interest, the Commission 
stated, to allow an ELEC to alternately "fatten up" under rate-of-return regulation and "slim 
down" under price cap regulation, because rates would not fall in the manner intended under 
price cap regulation.30
15. The Commission nonetheless recognized that a narrow waiver of the all-or-nothing 
rule might be justified if efficiencies created by the purchase and sale of a few exchanges were 
to outweigh the threat that the system may be subject to gaming.31 Such a waiver would not be 
granted unconditionally, however. Rather, waivers of the all-or-nothing rule would be granted 
subject to the condition that the selling price cap company shall make a downward adjustment
27 See LEC Price Cap Reconsideration Order, supra note 26,1149 note 207. The Commission explained that, 
if these two types of acquisitions were not treated the same under the all-or-nothing rule, an ILEC could avoid the 
rule by selling all but one of its exchanges. Id.
21 Price cap companies are those ILECs that receive compensation for the use of their facilities in originating 
and terminating interstate telecommunication services on the basis of the Commission's price cap rules. 47 C.F.R. 
§§ 61.41-61.49.
29 Cost companies are those ILECs that receive compensation for the use of their facilities in originating and 
terminating interstate telecommunications services on the basis of their actual costs.
30 See LEC Price Cap Reconsideration Order, supra note 26, 1 148
31 Id. I 149 note 207.
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to its price cap indices to reflect the change in its study area.32 That adjustment is needed to 
remove the effects of the transferred exchanges from rates that have been based, in whole or in 
part, upon the inclusion of those exchanges in the study areas subject to price cap regulation.33
B. Pleadings
16. Petition. Union Telephone seeks waiver of Section 61.41(c)(2) so it may operate as 
a rate-of-return ILEC, rather than a price cap ILEC, after acquiring the exchange which currently 
is under price cap regulation. The petitioners argue that Union Telephone is the type of small 
rural ILEC which the Commission has found to be an inappropriate candidate for price cap 
regulation. In addition, the petitioners state that in balancing the benefits to be gained under 
price cap regulation against the costs which would be incurred by Union Telephone, the public 
interest is better served by a grant of the requested waiver. The petitioners further argue that the 
Commission's two concerns, the threat of cost shifting between affiliates and gaming of the 
system, are not at issue in this case.34
C. Discussion
17. We agree with the petitioners that the Commission's first concern underlying the all- 
or-nothing rule is not applicable in this case. Union Telephone cannot shift costs between price 
cap and cost affiliates, because it is not seeking to maintain separate affiliates under different 
systems of regulation. As to the Commission's second concern, we find it implausible that the 
petitioners could game the system by moving the exchange back and forth between price cap and 
other forms of regulation, because the petitioners would require a second study area waiver. 
Moreover, U S WEST cannot transfer the exchange without removing the rate-increasing effects 
of the exchange from the price-capped rates that have been based, in part, upon the inclusion of 
this exchange in its Wyoming study area.35
32 See Price Cap Performance Review for Local Exchange Carriers, First Report and Order, 10 FCC Red 8962, 
H 328, 330 (1995) ("LEC Price Cap Review Order"). Under that requirement, U S WEST must reduce the price 
cap indices for its Nebraska study area if the changes in study area boundaries reduce the cost bases for those indices. 
The price cap indices, which are the cost indices on which price-capped rates are based, are calculated pursuant to 
a formula specified in the Commission's rules for price cap carriers. See 47 C.F.R. § 61.45.
33 See LEC Price Cap Review Order, supra note 32,1 330.
34 Petition at 5.
35 See discussion supra 1 15.
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18. We therefore find there is good cause to grant Union Telephone waiver of the all-or- 
nothing rule to permit it to remain under rate-of-return regulation after acquiring the exchange 
which currently is under price cap regulation. As noted above, this waiver is subject to the 
condition that U S WEST shall make a downward adjustment to its price cap indices to reflect 
the removal of this high-cost exchange from its Wyoming study area. For the present, we will 
continue to regulate Union Telephone as a rate-of-return ILEC. Because we are waiving Section 
61.41(c)(2), it need not withdraw from the NEC A pools. We note that, as with any other rate-of- 
return ILEC, Union Telephone may elect price cap regulation in the future if it decides to 
withdraw from the NECA pools.
IV. OTHER ISSUES
19. To the extent necessary, Union Telephone seeks a waiver of Section 69.3(e)(ll) of 
the Commission's rules.36 That rule requires that any changes in NECA carrier common line 
tariff participation and long term support resulting from a merger or acquisition of telephone 
properties are to be made effective on the next annual access tariff filing effective date following 
the merger or acquisition. Union Telephone is concerned that under a strict interpretation of this 
rule, it rather than NECA, would be required to file a tariff on the next annual access tariff filing 
date. Assuming its acquisition occurs this year, Union Telephone represents that it plans to 
utilize NECA as its interstate tariff administrator, consequently, Union Telephone's carrier 
common line costs will be included in NECA's 1997 filing. We conclude that, Union Telephone 
is not required to make a separate annual access filing for its carrier common line costs, and 
therefore, a waiver of Section 69.3(e)(ll) is not required.
V. ORDERING CLAUSES
20. 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 of Union Telephone Company, Inc. and U S WEST Communications, Inc. for waiver 
of Part 36, Appendix-Glossary, of the Commission's rules, 47 C.F.R. Pan 36 Appendix-Glossary 
IS GRANTED subject to the condition stated in paragraph 12 of this Order.
21. IT IS FURTHER 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 of Union Telephone Company, Inc. for waiver of Section 61.41(c)(2) of the 
Commission's rules, 47 C.F.R. § 61.41(c)(2), IS GRANTED.
36 47 C.F.R. § 69.3(e)(ll).
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22. IT IS FURTHER 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, 1.3, and 61.43 of the Commission's rules, 47 C.F.R. §§ 0.91,0.291,1.3, and 
61.43, that U S WEST Communications, Inc. SHALL adjust its price cap indices as discussed 
in paragraph 18 above, to reflect in its 1997 annual price cap riling cost changes resulting from 
this and other transactions involving the sale of exchanges.
23. IT IS FURTHER 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 National Exchange Carrier Association shall not distribute USF assistance exceeding the limit 
imposed in paragraph 12 of this Order.
24. IT IS FURTHER 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 
this Order IS EFFECTIVE IMMEDIATELY UPON RELEASE.
FEDERAL COMMUNICATIONS COMMISSION
Kenneth P. Moran
Chief, Accounting and Audits Division
Common Carrier Bureau
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