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ComSouth Telenet

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Released: July 30, 2014
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Federal Communications Commission

DA 14-1092

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of

)

)

Universal Service Contribution Methodology

)

WC Docket No. 06-122

)

Petition for Declaratory Ruling by the Rural

)

Independent Competitive Alliance

)

)

Petition for Limited Waiver and Request for

)

Review of Decision of the Universal Service

)

Administrator by ComSouth Telenet

)

ORDER

Adopted: July 30, 2014

Released: July 30, 2014

By the Acting Chief, Telecommunications Access Policy Division, Wireline Competition Bureau:

1.

In this order, we grant a request filed by ComSouth Telenet (ComSouth).1

ComSouth

seeks a limited waiver and reversal of a decision by the Universal Service Administrative Company

(USAC) that denied ComSouth the relief established in the Wireline Competition Bureau’s (Bureau)

RICA Declaratory Ruling and Order.2

For the reasons set forth below, we find that good cause exists to

grant a limited waiver of the conditions of the RICA Declaratory Ruling and Order to allow ComSouth to

benefit from the relief granted in that order.

2.

In the RICA Declaratory Ruling and Order, the Bureau granted a petition filed by the

Rural Independent Competitive Alliance (RICA).3

The Bureau clarified that, for federal universal service

fund (USF) contributions purposes, competitive local exchange carriers (CLECs) are not required to

allocate a portion of the revenues derived from their fixed local revenues to the interstate jurisdiction.4

The Bureau directed USAC to accept revised FCC Forms 499-A from RICA members who had filed

1 Request for Review of a Decision by the Universal Service Administrator and Request for Waiver by ComSouth

Telenet, WC Docket 06-122 (filed May 28, 2014) (Request for Review).

2 See Request for Review at 1-2 (stating that USAC determined that ComSouth does not qualify for the relief

specified in the order because ComSouth was not a member of RICA); Petition for Declaratory Ruling by the Rural

Independent Competitive Alliance, Request for Review of a Decision of the Universal Service Administrative

Company by Blackfoot Communications, Inc., WC Docket No. 06-122, Report and Order, 28 FCC Rcd 16037

(Wireline Comp. Bur. 2013) (RICA Declaratory Ruling and Order).

3 See generally, RICA Declaratory Ruling and Order, 28 FCC Rcd 16037; Petition of the RICA Members for

Declaratory Ruling Regarding Imputation of Interstate Revenue, WC Docket No. 06-122 (filed April 26, 2011)

(RICA Petition).

4 See RICA Declaratory Ruling and Order, 28 FCC Rcd at 16041-42, paras. 2,10-12 (stating that neither the

Commission’s formal separations process that governs how incumbent local exchange carriers (ILECs) assign their

costs to intrastate and interstate jurisdictions, nor the access charge rules that govern how ILECs recover those costs

from their customers, apply to CLECs.)

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Federal Communications Commission

DA 14-1092

under protest while disputing USAC’s directive to identify an interstate portion of fixed local exchange

services.5

ComSouth was a party to the RICA petition but was not a formal member of RICA, as defined

by the RICA bylaws.6

USAC therefore determined that ComSouth does not qualify for the relief

specified in the RICA Declaratory Ruling and Order.7

3.

We find that, based on the unique circumstances presented in this case, good cause exists

to grant a limited waiver of the conditions of the RICA Declaratory Ruling and Order to allow ComSouth

to benefit from the relief granted in that order.8

Although ComSouth was not a formal member of RICA,

it participated substantively with the small group of RICA members that filed the petition by providing

the Commission with additional information it requested.9

ComSouth also shared the costs of filing the

petition with the RICA-member petitioners.10

Moreover, we agree with ComSouth that its “position and

actions were consistent with the Bureau’s analysis and relief granted the RICA members.”11

ComSouth,

like the RICA-member petitioners, is a CLEC and is not required to allocate to the interstate jurisdiction a

portion of its fixed local service revenue for federal USF contribution purposes.12

Like the other

petitioners, ComSouth allocated a portion of its revenues to the interstate jurisdiction on the Forms 499

that were filed with USAC under protest, and timely filed revised Forms 499-A after release of the RICA

Declaratory Ruling and Order.13 We find that under these limited circumstances ComSouth should be

afforded the same relief as the other RICA-member petitioners. Accordingly, we direct USAC to review

ComSouth’s amended FCC Forms 499-A and supporting documentation and to adjust invoices and issue

refunds as appropriate, consistent with the clarifications and findings in the RICA Declaratory Ruling and

5 On its own motion, the Bureau waived the one-year deadline for revising Forms 499 to enable USAC to process

revised filings that were consistent with the Bureau’s clarifications in the order. See id. at 16043, para 15. The

Bureau allowed the RICA members who filed amended FCC Forms 499 under protest, based on USAC’s directive

to identify an interstate portion of fixed local exchange services, a period of 60 days within which to revise their

filings and provide any relevant documentation in support of such filings. Id. at para. 14.

6 Request for Review at 2.

7 Id.

8 The Commission may waive any provision of its rules for good cause shown. 47 C.F.R. § 1.3. A rule may be

waived where the particular facts make strict compliance inconsistent with the public interest. Northeast Cellular

Telephone Co. v. FCC, 875 F.2d 1164, 1166 (D.C. Cir. 1990) (Northeast Cellular). In addition, the Commission

may take into account considerations of hardship, equity, or more effective implementation of overall policy on an

individual basis. WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969), aff’d, 459 F.2d 1203 (D.C. Cir. 1972);

Northeast Cellular, 897 F.2d at 1166.

9 Request for Review at 2-3. Although ComSouth participated with the other petitioners in providing information

requested by Commission staff, the information did not make clear that ComSouth’s participation was not as a

voting member of the organization. Id.

10 See Request for Review at 2-3. Because only a small number of RICA members were interested in the issue, the

costs were allocated among those CLECs rather than recovered from the general revenues of RICA. ComSouth paid

its pro-rata share of the costs “and otherwise participated as an equal with the RICA members.” Id. at 2.

11 Id. at 3.

12 See id. at 2 (stating that ComSouth became aware that RICA was looking into the matter on behalf of some rural

CLEC members and asked to participate); see RICA Declaratory Ruling and Order, 28 FCC Rcd at 16041, para. 10

(stating that “there is no existing Commission rule or order mandating that CLECs allocate and report for USF

contribution purposes a portion of the revenues derived from their fixed local revenues to the interstate

jurisdiction”).

13 Id.

2

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Federal Communications Commission

DA 14-1092

Order.14

On our own motion, we find good cause exists to waive the one-year filing deadline for revising

the Form 499-A, to enable USAC to process ComSouth’s revised filing. We allow ComSouth a period of

30 days in which to file its revised Forms 499-A and supporting documentation.

4.

ACCORDINGLY, IT IS ORDERED, pursuant to the authority contained in sections 1–4

and 254 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151–154 and 254, and sections

0.91, 0.291, 1.3 and 54.722 of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, 1.3 and 54.722, that the

request for review and request for waiver filed by ComSouth Telenet IS GRANTED.

5.

IT IS FURTHER ORDERED that pursuant to the authority contained in sections 1-4 and

254 of the Communications Act, 47 U.S.C. §§ 151-154 and 254, and pursuant to sections 0.91, 0.291, 1.3

and 54.722 of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, 1.3 and 54.722, the one-year deadline

for filing revisions to the FCC Forms 499-A IS WAIVED to the extent described herein, and the

Universal Service Administrative Company SHALL ACCEPT ComSouth Telenet’s FCC Forms 499 for

the time period in which it allocated revenues to the interstate jurisdiction under protest, revised

consistent with the terms of this Order, if its revised Forms are filed within 30 days of this Order.

6.

IT IS FURTHER ORDERED that, pursuant to section 1.102 of the Commission’s rules,

47 C.F.R. § 1.102, this Order SHALL BECOME EFFECTIVE upon release.

FEDERAL COMMUNICATIONS COMMISSION

Vickie S. Robinson

Acting Chief

Telecommunications Access Policy Division

Wireline Competition Bureau

14 See RICA Declaratory Ruling and Order, 28 FCC Rcd at 16043, paras. 14-15.

3

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