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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 ) ) Designation of ) Fort Mojave Telecommunications, Inc.,) Gila River Telecommunications, Inc., ) San Carlos Telecommunications, Inc., and) AAD/USB File No. 98-28 Tohono O'odham Utility Authority) as Eligible Telecommunications Carriers ) Pursuant to Section 214(e)(6) of the) Communications Act ) MEMORANDUM OPINION AND ORDER Adopted: February 27, 1998 Released: February 27, 1998 By the Chief, Common Carrier Bureau: I. INTRODUCTION 1. On December 29, 1997, the Commission released a public notice ("214(e)(6) Public Notice") establishing the procedures the Commission will use to designate eligible telecommunications carriers pursuant to section 214(e)(6) of the Communications Act of 1934, as amended, ("the Act"), and delegating authority to make such designations to the Chief, Common Carrier Bureau. On December 18, 1997, prior to the release of the Commission's public notice establishing procedures under section 214(e)(6), Fort Mojave Telecommunications, Inc., Gila River Telecommunications, Inc., San Carlos Telecommunications, Inc., and Tohono O'odham Utility Authority ("the petitioners" or "Arizona companies") submitted a joint petition seeking designation as eligible telecommunications carriers. On January 28, 1998, the same companies filed a supplementary petition providing additional information pursuant to the procedures set forth in the Commission's 214(e)(6) Public Notice. On January 30, 1998, the Universal Service Branch of the Common Carrier Bureau's Accounting and Audits Division issued a public notice seeking comment on the Arizona Companies Petition and the supplement. Two parties filed comments supporting the petition and the petitioners filed reply comments. In this Memorandum Opinion and Order, we designate each of the above-captioned companies as eligible telecommunications carriers pursuant to section 214(e)(6) of the Communications Act. II. BACKGROUND 2. For most carriers, state commissions are responsible for designating eligible telecommunications carriers and for designating service areas for such carriers. Section 214(e)(6), however, provides: In the case of a common carrier . . . that is not subject to the jurisdiction of a State commission, the Commission shall upon request designate such a common carrier that meets the requirements of [section 214(e)(1)] as an eligible telecommunications carrier for a service area designated by the Commission. Pursuant to section 254(e), after January 1, 1998, "only an eligible telecommunications carrier designated under section 214(e) shall be eligible to receive . . . 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." III. DESIGNATION OF ELIGIBLE TELECOMMUNICATIONS CARRIERS A. Carriers Not Subject to the Jurisdiction of a State Commission 3. The 214(e)(6) Public Notice required carriers seeking designation from the Commission pursuant to section 214(e)(6) to set forth a certification and brief statement of supporting facts demonstrating that the petitioner is not subject to the jurisdiction of a state commission. In addition, the 214(e)(6) Public Notice directed each petitioner to provide a copy of its petition for designation to the relevant state commission. With regard to these requirements, the Arizona Companies Petition states that each company is "subject to the jurisdiction of the governing body of a distinct federally-recognized Indian tribe" and that "the Arizona Corporation Commission does not assert jurisdiction over the Companies." In further support of their assertion that they are not subject to the jurisdiction of a state commission, the petitioners assert that tribal councils have authorized operation of each of the Arizona companies. 4. Although the Arizona Corporation Commission was notified of the Arizona Companies Petition, it did not submit comments in this proceeding. Moreover, no party challenges the petitioners' assertion that they are not subject to the jurisdiction of a state commission. Based on the record before us, we conclude that the petitioners are not subject to the jurisdiction of a state commission for purposes of section 214(e)(6), and therefore, we conclude that we may, pursuant to our delegated authority, designate them as eligible telecommunications carriers. B. Designation of Service Areas 5. Section 214(e)(1) requires eligible telecommunications carriers to offer and advertise the services designated for support "throughout the service area for which the designation is received." Section 214(e)(5) states that, "[i]n the case of an area served by a rural telephone company, 'service area' means such company's 'study area' unless and until the Commission and the States . . . establish a different definition." In the 214(e)(6) Public Notice, the Commission directed petitioners that meet the definition of a rural telephone company to identify their study areas. Each of the petitioners asserts that it is a rural telephone company pursuant to section 3(37) of the Act and provides the study area code number for its study area. Based on the record before us and consistent with section 214(e)(5), we designate each petitioner's study area as its service area. C. Offering the Services Designated for Support 6. Section 214(e)(1) requires that, to be designated an eligible telecommunications carrier, a common carrier must offer, throughout its service area, all of the services designated for support by the Commission pursuant to section 254(c). In the 214(e)(6) Public Notice, the Commission directed each carrier seeking designation as an eligible telecommunications carrier to provide a certification that it provides, throughout its service area, all services designated for support by the Commission pursuant to section 254(c). Fort Mojave Telecommunications and Gila River Telecommunications provide resolutions from the Fort Mojave Tribe of the Fort Mojave Reservation of Arizona, California, and Nevada and the Gila River Indian Community, respectively, certifying that these carriers provide all of the supported services. The Tohono O'odham Utility Authority provides a sworn statement by its general manager certifying that Tohono O'odham offers all of the supported services. San Carlos Telecommunications also provides a sworn statement by its general manager certifying that it offers all the supported services except toll limitation for qualifying low-income consumers. USTA agrees that each carrier offers all of the supported services consistent with the requirements of the Commission. 7. The Arizona Companies Petition states that San Carlos Telecommunications offers access to emergency services through seven-digit dialing and not through 911 service because the area served by San Carlos has no Public Safety Answering Point (PSAP). We find that San Carlos's provision of access to emergency services is consistent with the Commission's finding in the Universal Service Order that, because PSAPs are typically provided by local governments and funded by local tax revenue, a carrier is not required to offer 911 or E911 services in the absence of a PSAP. We therefore find that San Carlos Telecommunications offers access to emergency services consistent with the Commission's rules. 8. To be designated as an eligible telecommunications carrier, a carrier must offer toll-limitation services to qualifying low-income consumers. At the time the Arizona Companies Petition was filed, the Commission defined toll-limitation service as both toll control and toll- blocking. In response to the toll-limitation requirement, as defined at the time, Fort Mojave Telecommunications, Gila River Telecommunications, and Tohono O'odham Utility Authority seek a waiver of that requirement, asserting that they can offer toll blocking but cannot offer toll control. In the Fourth Reconsideration Order, however, the Commission concluded that carriers that are technically incapable of offering toll control may offer toll blocking alone to meet the toll-limitation requirement. Therefore, we conclude that Fort Mojave Telecommunications, Gila River Telecommunications, and Tohono O'odham Utility Authority each offers toll-limitation service consistent with the Commission's rules and do not require a waiver. 9. The Arizona Companies Petition also seeks an extension of time for San Carlos Telecommunications because it can offer neither toll-limitation service nor toll blocking. San Carlos Telecommunications initiated service in August 1997 and has not yet been able to complete all of its planned network upgrades. San Carlos asserts that it currently provides service through a "step office," through which it is incapable of providing toll-limitation service, but anticipates that it will acquire digital switching capability that will enable it to provide toll blocking by mid-1998. If "exceptional circumstances prevent an otherwise eligible telecommunications carrier from providing . . . toll limitation," the Commission's rules allow a carrier to receive an extension of time to complete the network upgrades necessary to provide toll-limitation service. The Commission's rules further provide that the extension should extend only so long as the exceptional circumstances exist and should not extend beyond the time necessary for the carrier to complete network upgrades. 10. We find that exceptional circumstances justify granting San Carlos Telecommunications an extension of time to offer toll-limitation services to qualifying low-income consumers. San Carlos Telecommunications initiated service relatively recently, August 1997, having acquired an exchange to provide service in its service area. At this time, San Carlos Telecommunications is incapable of providing toll-limitation service to qualifying low income consumers because of its switching equipment, a step by step switch. Thus, San Carlos Telecommunications cannot comply with our rules until it replaces its current switching equipment with modern switching equipment. San Carlos Telecommunications also represents that it will be able to provide digital switching services to its customers by the middle of 1998. Given its recent initiation of service and the short time frame in which it proposes to finish upgrading its equipment to provide toll-limitation service, we find that an extension of time is justified under our rules. We therefore give San Carlos until August September 30, 1998 to offer toll-blocking in order to remain eligible to receive universal service support. We adopt this date based on the Commission's directive to grant only the time necessary to complete network upgrades and San Carlos's assertion that it will be able to provide toll-blocking by mid-1998. We thus find it in the public interest to designate San Carlos Telecommunications as an eligible telecommunications carrier subject to its provision of toll-limitation service by September 30, 1998. 11. Based on the uncontested record before us, we find that, subject to the extension of time granted above, each of the petitioners offers, or will be able to offer all of the services designated for support by the Commission. We therefore conclude that each of the petitioners complies with the requirements of section 214(e)(1)(A) to "offer the services that are supported by the Federal universal service support mechanisms under section 254(c)." D. Offer the Supported Services Using a Carrier's Own Facilities 12. Consistent with the requirements of section 214(e)(1)(A), the Commission directed each carrier seeking designation as an eligible telecommunications carrier to provide a certification that it offers the supported services "either using its own facilities or a combination of its own facilities and resale of another carrier's services." Fort Mojave Telecommunications and Gila River Telecommunications provide resolutions from the Fort Mojave Tribe of the Fort Mojave Reservation of Arizona, California, and Nevada and the Gila River Indian Community, respectively, certifying that each of the carriers provide the supported services using "its own facilities-based network." The Arizona Companies Petition states "[e]ach petitioner provides voice grade local exchange and interexchange access services utilizing its respective facilities- based network." USTA agrees that each carrier offers the supported services through its own facilities. Based on the uncontested record before us, we conclude that each of the petitioners offers the supported services using its own facilities in accordance with section 214(e)(1)(A). E. Advertising of Supported Services 13. The Commission directed petitioners seeking designation as eligible telecommunications carriers to submit a description of how the petitioner will meet the requirements of section 214(e)(1)(B) to "advertise the availability of the [supported] services and the charges therefor using media of general distribution." The Arizona Companies Petition states that "the [c]ompanies currently utilize standard subscriber notification and public notice procedures, and will advertise the availability and cost of universal service elements." We expect that the petitioners will use advertising techniques designed to reach all of the residents of their service areas and will ensure that customers in their service areas are aware of the availability of supported services, and, in particular, the support available to low income consumers. We conclude that each of the petitioners complies with the requirements of section 214(e)(1)(B) of the Act. F. Anti-Drug Abuse Act Certifications 14. Pursuant to section 5301 of the Anti-Drug Abuse Act of 1988, no applicant is eligible for any new, modified, or renewed instrument of authorization from the Commission, including authorizations issued pursuant to section 214 of the Act, unless the applicant certifies that neither it, nor any party to its application, is subject to a denial of federal benefits, including Commission benefits. This certification must also include the names of individuals specified by section 1.2002(b) of the Commission's rules. Each of the petitioners has provided a certification consistent with the requirements of the Anti-Drug Abuse Act of 1988. We find that the petitioners have satisfied the requirements of the Anti-Drug Abuse Act of 1988, as codified in sections 1.2001-1.2003 of the Commission's rules. IV. SUPPORT RETROACTIVE TO JANUARY 1, 1998 15. In the 214(e)(6) Public Notice, the Commission directed petitioners seeking universal service support retroactive to January 1, 1998 to: (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. 16. All petitioners have sought support retroactive to January 1, 1998. USTA and NTCA support granting retroactive support. We find that each of the petitioners met the requirements set forth in section 214(e)(1) as of January 1, 1998 and has taken adequate steps to receive designation in a timely manner. Specifically, the initial Arizona Companies Petition requesting designation as eligible telecommunications carriers was filed on December 18, 1997, only 17 days after section 214(e)(6) became law, and 11 days before the Commission issued its procedures for carriers seeking designation from the Commission. In addition, the Arizona Companies Petition included, as of its filing date, tribal resolutions and affidavits attesting to the carriers' compliance with the requirements necessary to be designated eligible telecommunications carriers. 17. We note, however, that pursuant to section 36.611, a carrier cannot receive high cost loop support until it provides certain historical cost data to the National Exchange Carrier Association (NECA). The cost data are filed on July 31st of each year. Since San Carlos Telecommunications did not initiate operation until August 1997, it could not provide the necessary information to NECA in order to receive high cost loop support beginning in 1998. The Arizona Companies Petition indicates that it is aware that San Carlos Telecommunications cannot receive high cost loop support pursuant to sections 36.611 and 36.612 of the Commission's rules as of January 1, 1998. We agree that San Carlos Telecommunications should receive high cost loop support consistent with sections 36.611 and 36.612 of the Commission's rules and will not receive high cost loop support retroactively to January 1, 1998. 18. With the exception of high cost loop support for San Carlos Telecommunications, we conclude that each of the petitioners will receive federal universal service support retroactive to January 1, 1998. We direct the Universal Service Administrative Company to provide such support to the petitioners, and to take the steps necessary to minimize any interruptions in their receipt of support. V. ORDERING CLAUSES 19. Accordingly, IT IS ORDERED that, pursuant to the authority contained in section 214(e)(6) of the Communications Act and section 0.291 of the Commission's rules, 47 U.S.C.  214(e)(6) and 47 C.F.R.  0.291, Fort Mojave Telecommunications, Inc., Gila River Telecommunications, Inc., San Carlos Telecommunications, Inc., and Tohono O'odham Utility Authority ARE individually DESIGNATED ELIGIBLE TELECOMMUNICATIONS CARRIERS. Such designation is effective immediately. 20. IT IS FURTHER ORDERED that the requests by Fort Mojave Telecommunications, Gila River Telecommunications, and Tohono O'odham Utility Authority to receive an extension of time to offer toll control are DISMISSED AS MOOT. 21. IT IS FURTHER ORDERED that San Carlos Telecommunications' request for an extension of time to offer toll blocking IS GRANTED until no later than August 15, 1998; its designation as an eligible telecommunications carrier after August 15, 1998 is subject to its provision of toll-limitation service by August 15, 1998. 22. IT IS FURTHER ORDERED that Fort Mojave Telecommunications, Inc., Gila River Telecommunications, Inc., San Carlos Telecommunications, Inc., and Tohono O'odham Utility Authority WILL RECEIVE, retroactive to January 1, 1998, federal universal service support, except that San Carlos Telecommunications will not receive high cost loop support retroactive to January 1, 1998. 23. IT IS FURTHER ORDERED that a copy of this Memorandum Opinion and Order and a list of designated eligible telecommunications carriers SHALL BE transmitted to the Universal Service Administrative Company consistent with the Bureau's Public Notice, DA-1892 (rel. Sept. 29, 1997). A. Richard Metzger, Jr. Chief, Common Carrier Bureau