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Bureau Grants Chillicothe Request for Waiver of Data Filing Deadline

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Released: October 19, 2012

Federal Communications Commission

DA 12-1684

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Connect America Fund
)
WC Docket No. 10-90
)
Developing an Unified Intercarrier Compensation
)
CC Docket No. 01-92
Regime
)
)

Federal-State Joint Board on Universal Service
)
CC Docket No. 96-45
)
Chillicothe Telephone Company Petition for
)
Waiver of Section 54.304(d)(1) Deadline to File
)
Connect America Fund Intercarrier Compensation
)
Eligibility Support Data
)

ORDER

Adopted: October 19, 2012

Released: October 19, 2012

By the Chief, Wireline Competition Bureau:

I.

INTRODUCTION

1. In this order, we grant a petition1 filed by Chillicothe Telephone Company (“Chillicothe”)
seeking waiver of the filing deadline for the initial funding period under section 54.304(d)(1) of the
Commission’s rules.2 Section 54.304(d)(1) requires eligible rate-of-return carriers to file projected
Connect America Fund intercarrier compensation funding eligibility data with the Universal Service
Administrative Company (USAC) no later than June 30, 2012 for the initial funding period.3 For the
reasons set forth below, we conclude good cause warrants granting Chillicothe a one-time waiver of the
initial filing deadline based on the specific circumstances discussed below.

II.

BACKGROUND

2. On November 18, 2011, the Commission released the USF/ICC Transformation Order4
which, among other things, adopted new rules requiring incumbent local exchange carriers (ILECs) to
adjust, over a period of years, many of their interstate and intrastate switched access charges effective on


1 Chillicothe Telephone Company Petition for Expedited Waiver of Section 54.304(d)(1) Deadline for Filing of CAF
ICC Support Data with USAC, WC Docket No. 10-90, CC Docket Nos. 01-92, 96-45 (filed July 31, 2012)
(Petition).
2 47 C.F.R. § 54.304(d)(1).
3 See id. The deadline was extended until July 2, 2012. See 47 C.F.R. § 1.4(e)(1) & (j); see also, Petition at 1.
4 See Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order and Further Notice of Proposed
Rulemaking, 26 FCC Rcd 17663 (2011) (USF/ICC Transformation Order), pets. for review pending, Direct
Commc’ns Cedar Valley, LLC v. FCC
, No. 11-9581 (10th Cir. filed Dec. 8, 2011) (and consolidated cases).

Federal Communications Commission

DA 12-1684

July 1st of each of those years, with the ultimate goal of transitioning to a “bill-and-keep” methodology at
the end of that transition.5 As part of these reforms, the Commission adopted a transitional recovery
mechanism allowing ILECs to recover portions of intercarrier revenue reduced as part of intercarrier
compensation reform through a combination of end-user charges (the Access Recovery Charge (ARC))
and Connect America Fund support.6
3. In the USF/ICC Transformation Order, the Commission also adopted new reporting
requirements in section 54.304(d)(1) of the Commission’s rules, requiring eligible rate-of-return carriers
electing to receive Connect America Fund intercarrier compensation support to file data with USAC, the
Commission and the relevant state commissions no later than June 30, 2012, for the first year,
establishing the rate-of-return carrier’s projected funding eligibility during the upcoming funding period
pursuant to the Commission’s revenue recovery rules.7 Since the section 54.304(d)(1) deadline fell on
Saturday, June 30, 2012, the actual filing deadline was Monday, July 2, 2012.8
4. Chillicothe failed to file its Connect America Fund intercarrier compensation support data
with USAC by the July 2, 2012 deadline.9 Upon realizing this error, Chillicothe submitted Connect
America Fund intercarrier compensation support data with USAC on July 5, 2012, which was
supplemented on July 7, 2012.10 On July, 31, 2012, Chillicothe filed a petition seeking waiver of the
filing deadline required by section 54.304(d)(1) of the Commission’s rules.11 Specifically, Chillicothe
argues that good cause exists for granting a waiver because it made “substantial, material, timely and
good faith” efforts to comply with the Commission’s filing deadlines. Chillicothe asserts that its revised
internal procedures were “overwhelmed” by the Commission’s new reporting requirements.12 Chillicothe
further contends that it remedied its error shortly after discovering it by filing the Connect America Fund
intercarrier compensation support data with USAC.13 Chillicothe also claims that administration of the
funds will not be burdened by the missed deadline since USAC has time to complete “substantial analysis
and processing” of the support data while the Wireline Competition Bureau’s (“Bureau’s”) investigation
regarding ARC rates contained in the 2012 Annual Access Tariff Filings remains pending.14 Finally,


5 See USF/ICC Transformation Order, 26 FCC Rcd at 17934-35, para. 801 and fig. 9.
6 Id. at 17956, para. 847; 47 C.F.R. § 51.917(a).
7 47 C.F.R. § 54.304(d)(1); USF/ICC Transformation Order, 26 FCC Rcd at 18202, app. A.
8 47 C.F.R. § 54.304(d)(1) (establishing a June 30, 2012 filing deadline for rate-of-return carriers to file funding
eligibility support data); 47 C.F.R. § 1.4(e)(1) (defining “holiday” to include Saturday); 47 C.F.R. § 1.4(j) (when a
deadline falls on a holiday, the deadline is extended until the next business day); see also Petition at 1, note 1.
9 Petition at 3. Chillicothe filed its Connect America Fund intercarrier compensation support data with the
Commission on June 18, 2012 with its 2012 annual access tariff filing. Id. at 1.
10 Id. at 7-8. Chillicothe states that it initially “inadvertently” filed “an incomplete data file” with USAC on July 5,
2012, supplementing this submission with “better and more complete” support data on July 7, 2012. Id. at 3, note 3.
11 Petition at 1; see 47 C.F.R. § 54.301(d)(1). We note that on October 16, 2012 Chillicothe filed a supplement to its
Petition for waiver but subsequently withdrew this supplement. See Chillicothe Telephone Company Supplement to
Petition for Expedited Waiver of Section 54.304(d)(1) Deadline for Filing of CAF ICC Support Data with USAC,
WC Docket No. 10-90, CC Docket Nos. 01-92, 96-45 (filed Oct. 16, 2012); see also Letter from Gerard J. Duffy,
Counsel for Chillicothe Telephone Company, to Marlene H. Dortch, Secretary, Federal Communications
Commission, WC Docket No. 10-90, CC Docket Nos. 01-92, 96-45 (filed Oct. 16, 2012).
12 Petition at 6-7.
13 Id. at 7-8.
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Federal Communications Commission

DA 12-1684

Chillicothe notes that loss or significant delay of more than $1.6 million of Connect America Fund
intercarrier compensation support will “seriously and adversely” impair its finances and operations.15

5. On August 3, 2012, the Bureau sought comment on Chillicothe’s petition for waiver and no
comments were filed in opposition.16 The Organization for the Promotion and Advancement of Small
Telecommunications Companies (OPASTCO) filed comments urging the Bureau to grant Chillicothe’s
waiver petition.17

III.

DISCUSSION

6. Generally, the Commission’s rules may be waived for good cause shown.18 The Commission
may exercise its discretion to waive a rule where the particular facts make strict compliance inconsistent
with the public interest.19 In addition, the Commission may take into account considerations of hardship,
equity, or more effective implementation of overall policy on an individual basis.20 Waiver of the
Commission’s rules is appropriate only if both: (i) special circumstances warrant a deviation from the
general rule; and (ii) such deviation will serve the public interest.21

7. We conclude that good cause exists to grant Chillicothe’s waiver request. Chillicothe states
in its petition that its internal procedures were “overwhelmed in this unique and unusual instance only by
the newness and complexity of the initial [Connect America Fund intercarrier compensation] Support data
filings.”22 In the ACS Waiver Order, the Bureau recently granted a limited waiver of certain reporting
deadlines also adopted in the USF/ICC Transformation Order, which was “largely predicated on
confusion surrounding the implementation of … new reporting requirements.”23 The Bureau concluded
that the inexperience of carriers to make certain first-time filings, as well as other factors, justified waiver
in those unique circumstances.24 The Bureau finds that the circumstances presented in Chillicothe’s
(Continued from previous page)


14 Petition at 8-9; see Investigation of Certain 2012 Annual Access Tariffs, WC Docket No. 12-233, WCB/Pricing
No. 12-09, Order Designating Issues for Investigation, DA 12-1430 (Pric. Pol. Div., rel. Aug. 31, 2012); July 3,
2012 Annual Access Tariff Filings
, WCB/Pricing No. 12-09, Order on Reconsideration, DA 12-1231 (Wireline
Comp. Bur., rel. Aug. 1, 2012); July 3, 2012 Annual Access Charge Tariff Filings, WCB/Pricing No. 12-09, Order,
27 FCC Rcd 7322 (Wireline Comp. Bur., rel. July 2, 2012).
15 Petition at 5, 9.
16 See Wireline Competition Bureau Seeks Comment on Chillicothe Telephone Company Petition for Waiver of
Connect America Fund Intercarrier Compensation Support Deadline
, WC Docket No. 10-90, CC Docket Nos. 01-
92, 96-45, Public Notice, DA 12-1239 (Wireline Comp. Bur., rel. Aug. 3, 2012).
17 See Comments of the Organization for the Promotion and Advancement of Small Telecommunications
Companies (OPASTCO), WC Docket No. 10-90, CC Docket Nos. 01-92, 96-45, at 1, 3-4 (filed Aug. 17, 2012).
18 47 C.F.R. § 1.3; NetworkIP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008) (NetworkIP); Northeast
Cellular Telephone Co. v. FCC
, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (Northeast Cellular).
19 Northeast Cellular, 897 F.2d at 1166.
20 WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166.
21 NetworkIP, 548 F.3d at 125-128; Northeast Cellular, 897 F.2d at 1166.
22 Petition at 7.
23 See Connect America Fund; ACS Wireless, Inc. Petition for Waiver of Section 54.313(j) of the Commission’s
Rules
, WC Docket No. 10-90, Order, DA 12-1503, para. 10 (Wireline Comp. Bur., rel. Sept. 17, 2012) (ACS Waiver
Order
).
24 ACS Waiver Order, DA 12-1503, para. 8.
3

Federal Communications Commission

DA 12-1684

waiver petition also involve new reporting requirements adopted by the USF/ICC Transformation Order
and are sufficiently similar to those addressed in the ACS Waiver Order. We emphasize that this is a one-
time waiver, predicated on the unique circumstances created by the new reporting requirements adopted
in the USF/ICC Transformation Order.25
8. Although the Bureau finds good cause to grant the requested waiver, we remind Chillicothe
and others that carriers are responsible for reviewing and understanding the rules to ensure that
submissions are filed in a timely manner.26 USAC processes a tremendous amount of data each year so it
is necessary that carriers meet the requisite filing deadlines, absent special circumstances.27 Chillicothe
states that it has taken additional steps to ensure that it meets future deadlines by revising its internal
procedures.28 Specifically, Chillicothe states that it “will continue to make all such filings by Federal
Express (or comparable commercial delivery service), by hand, or via electronic mail” and in the future
“Chillicothe’s consultant and counsel will engage in two additional rounds of phone calls and/or emails:
(a) the first round when the files are sent to counsel to specify exactly which files go to the Commission
and/or to USAC on which specific dates; and (b) the second round on or before each specific deadline, to
verify that specific files have been filed with and received by the Commission and/or USAC.”29 In
granting previous waiver requests, we have found that carriers must comply with their commitments to
revise their internal procedures to ensure that their filings will be accurately and timely submitted.30
Similarly, we rely on Chillicothe to fulfill its commitments to adhere to its revised filing procedures.

IV.

ORDERING CLAUSES

9. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 5(c), 214, and 254 of the
Communications Act of 1934, as amended, 47 U.S.C. §§ 151, 154(i), 155(c), 214, and 254, 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
ADOPTED.
10. IT IS FURTHER ORDERED that the petition for waiver of section 54.304(d)(1) of the
Commission’s rules, 47 C.F.R. § 54.304(d)(1), filed by Chillicothe Telephone Company IS GRANTED.


25 Id. at para. 10.
26 See Cedar-Wapsie Communications, Inc. et al., Petitions for Waiver of Universal Service High-Cost Filing
Deadlines,
WC Docket No. 08-71, CC Docket No. 96-45, Order, 26 FCC Rcd 11069, 11073, para. 11 (2011)
(Cedar-Wapsie Order) (citing Citizens Communications and Frontier Communications Petition for Waiver of
Section 54.802(a) of the Commission’s Rules
, CC Docket No. 96-45, Order, 20 FCC Rcd 16761, 16763, para. 7
(Wireline Comp. Bur. 2005) (Citizens/Frontier Order)).
27 Cedar-Wapsie Order, 26 FCC Rcd at 11073, para. 11 (citing FiberNet, LLC, Petition for Waiver of Section
54.307(c) of the Commission’s Rules and Regulations
, CC Docket No. 96-45, Order, 19 FCC Rcd 8202, 8204, para.
5 (Wireline Comp. Bur. 2004) and Citizens/Frontier Order, 20 FCC Rcd at 16763, para. 7).
28 Petition at 6-7.
29 Id. at 7.
30 See, e.g., AT&T Communications of NY & AT&T Communications of California Petition for Waiver of Section
54.802(a) of the Commission’s Rules
, CC Docket No. 96-45, Order, 22 FCC Rcd 953, 954, para. 5 (Wireline Comp.
Bur. 2007); NPCR, Inc. Petition for Waiver of Section 54.802(a) of the Commission’s Rules, CC Docket No. 96-45,
Order, 22 FCC Rcd 560, 563, para. 9. (Wireline Comp. Bur. 2007); Verizon Communications Inc. Petition for
Waiver of Section 54.802(a) of the Commission’s Rules
, Order, 21 FCC Rcd 10155, at 10158, para. 10 (Wireline
Comp. Bur. 2006); Citizens/Frontier Order, 20 FCC Rcd at 16764, para. 10.
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Federal Communications Commission

DA 12-1684

11. IT IS FURTHER ORDERED that, pursuant to section 1.102(b)(1) of the Commission’s rules,
47 C.F.R. § 1.102(b)(1), this order SHALL BE EFFECTIVE upon release.
FEDERAL COMMUNICATIONS COMMISSION
Julie A. Veach
Chief, Wireline Competition Bureau
5

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