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If you need the complete document, download the WordPerfect version or Adobe Acrobat version, if available. ***************************************************************** Before the Federal Communications Commission Washington, D.C. 20554 In the Matter of ) ) Federal-State Joint Board on ) CC Docket No. 96-45 Universal Service ) ) Colorado Public Utilities Commission Petition) for Retroactive Universal Service Support) for Great Plains Communications ) MEMORANDUM OPINION AND ORDER Adopted: August 14, 1998 Released: August 14, 1998 By the Acting Chief, Common Carrier Bureau: 1. In this Memorandum Opinion and Order, we grant the Colorado Public Utilities Commission's (Colorado Commission) petition to permit Great Plains Communications (Great Plains) to receive federal universal service support retroactive to January 1, 1998. BACKGROUND 2. In the Telecommunications Act of 1996 (1996 Act), Congress amended the Communications Act of 1934 (Act) by, among other things, adding section 254 to the Act. Section 254(e) provides that, after the effective date of the Commission's regulations implementing section 254, "only an eligible telecommunications carrier designated under section 214(e) shall be eligible to receive specific Federal universal service support." Section 214(e)(1) requires that to be designated an eligible telecommunications carrier a common carrier must, throughout its service area: (1) offer all of the services designated for support by the Commission pursuant to section 254(c) "either using its own facilities or a combination of its own facilities and resale of another carrier's services;" and (2) "advertise the availability of such services and the charges therefor through media of general distribution." Section 214(e)(2) states that, [a] State commission shall upon its own motion or upon request designate a common carrier that meets the requirements of paragraph (1) as an eligible telecommunications carrier for a service area designated by the State commission. 3. On May 8, 1997, the Commission released the Universal Service Order implementing section 254 of the Act. The Universal Service Order states that, consistent with section 214(e)(2), state commissions will make carrier eligibility designations, and that, as of January 1, 1998, only carriers designated as eligible can receive specific federal universal service support. These requirements appear in section 54.201(a)(1) of the Commission's rules. The Commission further concluded in the Universal Service Order that the Administrator of the universal service support mechanisms shall not disburse funds to a carrier until the carrier provides to the Administrator a true and correct copy of the decision of a state commission designating that carrier as an eligible telecommunications carrier. In Public Notices released August 14, 1997 and September 29, 1997, the Commission alerted state commissions of their obligation to designate eligible telecommunications carriers by January 1, 1998. The September 29 Public Notice required states to submit to the Administrator, by December 31, 1997, a list of carriers designated as eligible, and the service areas of such eligible non-rural carriers. 4. In the Fourth Reconsideration Order, the Commission acknowledged that there may be situations in which a state commission is unable to designate as an eligible telecommunications carrier, by January 1, 1998, a carrier that sought such status before January 1, 1998. The Commission noted that, [a]llowing retroactive support will permit consumers served by those carriers to benefit from the support to which those carriers would have been entitled, but for circumstances that prevented the state commission from designating the carriers as eligible for receipt of universal service support prior to January 1, 1998. Accordingly, the Commission found that it is in the public interest to permit these carriers to seek retroactive support. The Fourth Reconsideration Order provides that, once the state commission has designated such a carrier, the state commission may file with the Commission a petition for waiver of section 54.201(a)(1), requesting that the carrier receive universal service support retroactive to January 1, 1998. 5. The Fourth Reconsideration Order directs a state commission filing such a petition to: (1) explain why it did not designate such carrier as eligible by January 1, 1998; and (2) explain why providing support retroactive to January 1, 1998 serves the public interest. The provisions for retroactive support appear in section 54.201(a)(2) of the Commission's rules. 6. On February 19, 1998, pursuant to the procedures established in the Fourth Reconsideration Order, the Colorado Commission petitioned the Commission to permit Great Plains to receive universal service support retroactive to January 1, 1998. The Colorado Commission explained that, although Great Plains had requested designation on December 19, 1997, the Colorado Commission had been unable to designate Great Plains as an eligible telecommunications carrier prior to January 1, 1998 because of the Colorado Commission's rules. The Colorado Commission also explained that, for the reasons described below, granting the petition is in the public interest. The Commission issued a public notice seeking comments on the petition, and the United States Telephone Association (USTA) responded with comments in support thereof. DISCUSSION 7. The petition meets the specific requirements of section 54.201(a)(2) for waiver of section 54.201(a)(1). Specifically, we find that the facts demonstrate that the Colorado Commission was unable to designate Great Plains as an eligible telecommunications carrier prior to January 1, 1998. According to the petition, Great Plains filed its application for designation as an eligible telecommunications carrier with the Colorado Commission on December 19, 1997. The petition indicates that Great Plains had met the requirements set forth in section 214(e)(1) by making its request for designation prior to January 1, 1998. The petition explains that, "[u]nder the procedures of the Colorado Commission and in light of the waiver requests contained within the application, it was not possible to rule on Great Plains' application prior to January 1, 1998." We note that, pursuant to the Colorado Commission's Rules of Practice and Procedure, the Colorado Commission must issue a public notice regarding the filing of an application, and give the public not less than 10 days to intervene. Moreover, the Colorado Commission may not set the matter for hearing any sooner than 45 days after the date the application was deemed complete. Accordingly, the Colorado Commission adopted an Order granting Great Plains' application for designation as an eligible telecommunications carrier on February 4, 1998. The Colorado Commission also found that the designation should be retroactive to January 1, 1998. 8. We find that it is in the public interest to permit Great Plains to receive federal universal service support retroactive to January 1, 1998. As the Colorado Commission and USTA maintain, it is important that Great Plains receive such support because Great Plains is a rural telephone company that relies upon the receipt of universal service support to keep its local service rates at an affordable and reasonable level. According to USTA, denying the petition would interrupt the flow of universal service support, and thereby would "work an undeserved, unintended, and harmful result on the operations of the company." We agree with the Colorado Commission and USTA that denying the petition would prevent Great Plains from receiving universal service support for the period prior to its designation by the Colorado Commission, and thus unjustly harm Great Plains and its customers. We find that, but for the circumstances that prevented the Colorado Commission from designating Great Plains as eligible for receipt of universal service support prior to January 1, 1998, Great Plains would have been entitled to the support as of January 1, 1998. We thus conclude that waiver of section 54.201(a)(1) is warranted, and Great Plains will receive federal universal service support retroactive to January 1, 1998. We direct the Universal Service Administrative Company to provide such support to Great Plains, and to take the steps necessary to minimize any interruptions in its receipt of support. ORDERING CLAUSES 9. Accordingly, IT IS ORDERED that, pursuant to section 54.201 of the Commission's rules, 47 C.F.R.  54.201, and the authority contained in section 0.291 of the Commission's rules, 47 C.F.R.  0.291, the Petition for Waiver of Section 254 Filed by the Colorado Public Utilities Commission on Behalf of Great Plains Communications is GRANTED. 10. IT IS FURTHER ORDERED that the Universal Service Administrative Company WILL PROVIDE to Great Plains Communications federal universal service support retroactive to January 1, 1998. 11. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order SHALL BE transmitted to the Universal Service Administrative Company. James D. Schlichting Acting Chief, Common Carrier Bureau