DISSENTING STATEMENT OF 
                COMMISSIONER KEVIN J. MARTIN
                              
       Re:  Federal-State Joint Board on Universal Service; Western Wireless Corporation
       Petition for Designation as an Eligible Telecommunications Carrier for the Pine
       Ridge Reservation in South Dakota, Memorandum Opinion and Order, CC
       Docket No. 96-45.
  
       I dissent from the Commission's determination that the South Dakota Public
  Utilities Commission lacks jurisdiction to designate Western Wireless as an eligible
  telecommunications carrier (ETC) in its service to Indians on the Pine Ridge Reservation. 
  Section 214(e)(6) states that the Commission may designate as an ETC "a common
  carrier providing telephone exchange service and exchange access that is not subject to
  the jurisdiction of a State commission."  47 U.S.C.  214(e)(6).  As the Commission
  acknowledges, Congress added this provision based on concerns that some Indian
  controlled carriers had been unable to obtain a forum in which to seek ETC status due to
  limitations on the jurisdiction of particular State commissions.  See Federal-State Joint
  Board on Universal Service; Promoting Deployment and Subscribership in Unserved and
  Underserved Areas, Including Tribal and Insular Areas, Twelfth Report and Order,
  Memorandum Opinion and Order, and Further Notice of Proposed Rulemaking, 15 FCC
  Rcd 12208,  98 (2000).  Congress thus amended the statute to ensure that every carrier
  has some forum in which to obtain ETC status and thereby receive universal service
  support.  See Pine Ridge Jurisdiction Order  3.  
  
       In my view, the Commission has taken a misguided approach to effectuating
  Congress's intent.  Rather than simply ensuring that carriers have a place to go when
  State commissions or courts conclude that a State lacks jurisdiction, the Commission has
  made itself the arbiter of competing jurisdictional claims made by States and Indian
  tribes.  The Commission has chosen to displace State claims of jurisdiction based on its
  own analysis of the merits, using "a complicated and intensely fact-specific legal inquiry
  informed by principles of tribal sovereignty and requiring the interpretation of treaties,
  and federal Indian law and state law."  Twelfth Report and Order, 15 FCC Rcd  108. 
  The Commission should refrain from making such determinations.  As a body devoted to
  the oversight of our nation's communications, we have neither the experience, skill, nor
  authority to make these complicated and contentious decisions regarding the power of
  Indian tribes and States.
  
       Moreover, despite the Commission's best efforts, its decision in this case is
  fraught with legal and practical problems.  Among other things, we have set up a regime
  in which Western Wireless will receive universal service funding for serving Indians but
  not non-Indians, even if they live on the same land.  This approach conflicts with our
  statutory obligation to make ETC designations for a particular "service area," which, by
  statute, "means a geographic area."  47 U.S.C.  214(e)(5).  In this case, the Orders even
  acknowledge that the State has jurisdiction to make the designation with respect to some
  of the residents within the service area.  To the extent the Commission could not lawfully
  make a designation for the entire geographic area, as its Orders conclude, it bolsters my
  view that we should not be making designations in such cases at all.  Additionally, we
  have set up a regime in which different carriers serving the same people will be regulated
  by different entities, depending largely on whether the carrier has "consented to tribal
  jurisdiction."  Pine Ridge Jurisdiction Order  21.  This regime will only encourage
  forum shopping and make impossible any coherent telecommunications policy on the
  reservation.  Finally, in designating Western Wireless as an ETC, we have made a public
  interest determination that may differ from the one made by the South Dakota
  Commission, which is in a superior position to assess the relevant local conditions.
  
       I worry that this decision will only encourage more parties to come before the
  Commission seeking to displace State claims of jurisdiction.  While Indian tribes may
  have legitimate claims of sovereignty in these situations, both they and the States deserve
  a better forum than this one to resolve their claims.  I am convinced that the parties
  would be far better served by resolving such claims through the legal process in the
  courts and letting the Commission devote its limited resources to issues of
  communications.  Accordingly, I respectfully dissent.