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Limited Waiver Granted for Certain States Administering Lifeline

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Released: August 30, 2013

Federal Communications Commission

DA 13-1853

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Lifeline and Link Up Reform and
)
WC Docket No. 11-42
Modernization
)

ORDER

Adopted: August 30, 2013

Released: August 30, 2013

By the Chief, Wireline Competition Bureau:

I.

INTRODUCTION

1.
In this Order, the Wireline Competition Bureau (Bureau) grants in part a petition for
waiver filed by the United States Telecom Association, as well as petitions from individual state
commissions and a state carrier association, regarding the Lifeline rules.1 Specifically, we find good
cause to grant a limited waiver of sections 54.407(d), 54.410(b)(2)(ii), 54.410(c)(2)(ii) and 54.410(e) of
the Commission's rules, which govern the requirements for state Lifeline administrators to provide
subscriber certification forms to Eligible Telecommunications Carriers (ETCs) and for ETCs to obtain
such forms prior to seeking reimbursement from the federal universal service fund (Fund). The waiver is
provided to California, Colorado, Florida, Idaho, Nebraska, Oregon, Utah, Vermont, and ETCs operating
in those states subject to the conditions described below, to allow more time for those states to implement
a process to share copies of consumer eligibility certifications for Lifeline support with ETCs.2 As
described below, this waiver will help ensure that eligible consumers continue to receive Lifeline service,


1 See Petition for Waiver of the United States Telecom Association, WC Docket Nos. 11-42 et al. (filed May 6,
2013) (2013 USTelecom Petition). See also Public Utility Commission of Oregon and Oregon Telecommunications
Association Comments in Support of USTelecom Petition for Waiver and Petition for Extension of Waiver, WC
Docket Nos. 11-42 et al. (filed May 15, 2013) (Oregon Petition); Petition for Waiver of the Nebraska Public Service
Commission, WC Docket Nos. 11-42 et al. (filed May 13, 2013) (Nebraska Petition); Notice and Petition for Waiver
of the Utah Public Service Commission, WC Docket Nos. 11-42 et al. (filed May 28, 2013) (Utah Petition); Notice
of Ex Parte for Clarification by the Public Service Commission of Utah at the Request of FCC Staff, WC Docket
No. 11-42 (filed June 11, 2013) (UPSC Ex Parte); Letter from Sindy Yun, Staff Counsel, California Public Utilities
Commission, to Marlene H. Dortch, Secretary, Federal Communications Commission, WC Docket Nos. 11-42 et al.
(filed May 31, 2013) (California Letter); Letter from Tamera Pariseau, Chief of Consumer Affairs & Public
Information, Vermont Department of Public Service, to Marlene H. Dortch, Secretary, Federal Communications
Commission, WC Docket No. 11-42 (filed May 29, 2013) (Vermont Letter) (requesting a permanent waiver); Idaho
Public Utilities Commission Comments in Support of USTelecom Petition for Waiver and Petition for Extension of
Waiver, WC Docket Nos. 11-42 et al. (filed May 31, 2013) (Idaho Petition) (requesting a permanent waiver; Letter
of Adam J. Teitzman, Attorney Supervisor, Florida Public Service Commission, to Marlene H. Dortch, Secretary,
Federal Communications Commission, WC Docket Nos. 11-42 et al. (filed May 31, 2013) (Florida Letter).
2 See Lifeline and Link Up Reform and Modernization et al., WC Docket Nos. 11-42 et al., Waiver Order, 27 FCC
Rcd 5941 (Wireline Comp. Bur. 2012) (May 2012 USTelecom Waiver Order); Lifeline and Link Up Reform and
Modernization,
WC Docket No. 11-42, Waiver Order, 27 FCC Rcd 15922 (Wireline Comp. Bur. 2012) (Dec. 2012
USTelecom Waiver Order
). We note that, over time, more states have come into compliance with these rules. In the
instant petition, USTelecom requested relief for only eight states and the ETCs in those states, whereas
USTelecom's initial request for similar relief in 2011 covered 20 states. See infra n.8.

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DA 13-1853

while at the same time, protecting the Fund against waste, fraud and abuse. The waiver will run from
June 1, 2013 until the sooner of February 1, 2014, or when the state either comes into full compliance
with these rules, or no longer requires a waiver because the ETCs in that state collect necessary Lifeline
certification forms directly from consumers.3

II.

BACKGROUND

2.
In the Lifeline Reform Order, the Commission adopted rules that permit states, rather
than ETCs, to determine whether subscribers to Lifeline are eligible to participate in the program.4 In
states where the state Lifeline administrator or another state agency is responsible for the initial
determination of subscribers' eligibility, ETCs must obtain certification forms from the administrator or
the applicable agency for each Lifeline subscriber before the ETC seeks reimbursement from the Fund for
providing Lifeline services to that subscriber.5
3.
Previous Waivers. In a petition filed on April 25, 2012, USTelecom sought a waiver on
behalf of ETCs in select states of the ETCs' obligation to obtain from the state a signed certification from
a subscriber prior to seeking reimbursement for that subscriber.6 USTelecom limited its request to the
subset of ETCs and/or programs for which the state makes initial eligibility determinations.7 USTelecom
later withdrew its request for waiver for certain states.8 On May 31, 2012, the Bureau conditionally
granted in part and denied in part USTelecom's revised request for relief for 11 states, the District of
Columbia and the Virgin Islands.9 For the duration of the waiver, the ETCs in these states could seek


3 As explained below, the waiver for Colorado and the ETCs in that state runs from June 1, 2013 until July 1, 2013
because, as of July 1, 2013, the Colorado PUC stopped administering the Lifeline program and ETCs had to collect
certification forms directly from consumers.
4 See Lifeline and Link Up Reform and Modernization et al., WC Docket Nos. 11-42 et al., Report and Order and
Further Notice of Proposed Rulemaking, 27 FCC Rcd 6656 (2012) (Lifeline Reform Order).
5 See 47 C.F.R. 54.410(b)(2), (c)(2). Section 54.407(d) of the Commission's rules requires an ETC to certify, as
part of each request for reimbursement, that it is in compliance with all of the Lifeline rules and, to the extent
required, has obtained a valid certification and recertification form for each of the subscribers for whom it seeks
reimbursement. See 47 C.F.R. 54.407(d). Section 54.410(e) requires state Lifeline administrators or other state
agencies that are responsible for the initial determination of a subscriber's eligibility to provide a copy of the
certification form to the subscriber's ETC in that state. See 47 C.F.R. 54.410(e).
6 Petition for Waiver of the United States Telecom Association, WC Docket Nos. 11-42 et al., at 2 (filed Apr. 25,
2012) (USTelecom April 2012 Petition) (seeking for particular states a waiver of sections 54.407(d), 54.410(b)(2),
and 54.410(c)(2) of the Commission's rules). After filing its petition, USTelecom withdrew its request for waiver of
the requirement that ETCs obtain notification of eligibility from the state, thus limiting its request for waiver to the
requirements to obtain certification forms from the state (and to certify that such forms have been obtained). See
Letter of David B. Cohen, USTelecom, to Marlene H. Dortch, FCC, WC Docket No. 11-42 et al., at 2 (filed May 16,
2012) (withdrawing request for waiver of section 54.410(b)(2)(i) and 54.410(c)(2)(i)).
7 See USTelecom April 2012 Petition at 2.
8 USTelecom narrowed its original request for relief from 20 states to 13 states. See Letter of David B. Cohen,
USTelecom, to Marlene H. Dortch, FCC, WC Docket Nos. 11-42 et al., at 1 (filed May 14, 2012) (withdrawing
request for waiver in Kansas, Tennessee and New Jersey); Letter of David B. Cohen, USTelecom, to Marlene H.
Dortch, FCC, WC Docket Nos. 11-42 et al., at 1 (filed May 16, 2012) (withdrawing request for New York); Letter
of David B. Cohen, USTelecom, to Marlene H. Dortch, FCC, WC Docket Nos. 11-42 et al., at 1 (filed May 21,
2012) (withdrawing request for Arizona); Letter of David B. Cohen, USTelecom, to Marlene H. Dortch, FCC, WC
Docket Nos. 11-42 et al., at 1 (filed May 24, 2012) (withdrawing request for Ohio and Texas).
9 Specifically, the Bureau granted a waiver of section 54.410(b)(2)(ii) and 54.410(c)(2)(ii) and portions of section
54.407(d) with respect to ETCs in states in which the state Lifeline administrator or other state agency managed
subscriber eligibility and was unable to modify, in the short term, its processes for ETCs to come into compliance
with these rules. The jurisdictions subject to the waiver were California, Colorado, District of Columbia, Florida,
(continued...)
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DA 13-1853

reimbursement without having received certification forms from the state, and state administrators were
not required to provide certification forms to the ETCs.10 The waiver was granted until December 1, 2012
or until the states' processes were modified to allow for compliance with the rules, whichever occurred
sooner.11
4.
On December 21, 2012, the Bureau conditionally granted an additional USTelecom
request for waiver of these same requirements for a subset of the states that had previously received a
waiver, until June 1, 2013 or until the states' procedures were modified to allow for compliance with the
rules, whichever came sooner.12 For the duration of the waiver, the states or state administrators were
required to provide ETCs notice that new subscribers complied with the Lifeline eligibility requirements
and executed a certification form.13 The Bureau explained that ETCs or jurisdictions that needed
additional time to come into compliance should file a detailed explanation of the specific issues delaying
compliance with the rules.14
5.
On May 6, 2013, USTelecom sought an additional six month waiver of sections
54.407(d), 54.410(b)(2)(ii), 54.410(c)(2)(ii), and 54.410(e) until December 1, 2013, for the states of
Florida, Idaho, Oregon, Utah, and Vermont, and a seven month waiver until January 1, 2014 for
California.15 Separate petitions for waiver and letters in support of the 2013 USTelecom Petition were
also filed subsequently by individual states and a state carrier association.16 USTelecom and the state
entities argue generally that an additional waiver is necessary because the subject states have not yet been
able to modify their processes to come into compliance with the Commission's requirement to provide
certification forms to ETCs.
(Continued from previous page)


Idaho, Montana, Nebraska, Nevada, Oregon, the U.S. Virgin Islands, Utah, Vermont, and Washington State. On its
own motion, the Bureau also waived section 54.410(e) in these states. See May 2012 US Telecom Waiver Order, 27
FCC Rcd at 5942, para. 2.
10 See May 2012 USTelecom Waiver Order, 27 FCC Rcd at 5942, para. 3. The Bureau clarified that, as narrowed by
USTelecom, these waivers as granted did not apply to states or the ETCs in those states in those instances where the
state did not make the initial determination of subscriber eligibility based on income or a qualifying program. For
example, in Florida, the state only makes eligibility determinations with respect to income, Supplemental Nutrition
Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF), and Medicaid, but not other
programs such as Federal Public Housing assistance. See Comments of AT&T on Petitions for Waiver of Lifeline
Eligibility Rules, WC Docket Nos. 11-42 et al., at 8 (filed May 15, 2012). Therefore, the waiver was applicable to
ETCs in Florida only in circumstances where subscribers qualified based on income, SNAP, TANF and Medicaid.
See May 2012 USTelecom Waiver Order, 27 FCC Rcd at 5943, para. 3 n.11.
11 See May 2012 USTelecom Waiver Order, 27 FCC Rcd at 5943, para. 4.
12 See Dec. 2012 USTelecom Waiver Order, 27 FCC Rcd at 15925, para. 6.
13 See id. at 15925, para. 7.
14 See id.
15 See 2013 USTelecom Petition. USTelecom also sought a waiver of these rules for Colorado, but only until July 1,
2013, when the state would cease to administer the federal Lifeline program. See id. Pursuant to new legislation in
Colorado, as of July 1, 2013, ETCs in Colorado were to obtain certification forms directly from consumers. See id.
at 3-4.
16 Petitions and letters were filed by the Public Utility Commission of Oregon and the Oregon Telecommunications
Association, the Nebraska Public Service Commission, the Utah Public Service Commission, the California Public
Utilities Commission (CPUC), the Vermont Department of Public Service, the Florida Public Service Commission
and the Idaho Public Utilities Commission. See supra n.1.
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Federal Communications Commission

DA 13-1853

III.

DISCUSSION

6.
Generally, the Commission's rules may be waived for good cause shown.17 The
Commission may exercise its discretion to waive a rule where the particular facts make strict compliance
inconsistent with the public interest.18 In addition, the Commission may take into account considerations
of hardship, equity, or more effective implementation of overall policy on an individual basis.19 Waiver
of the Commission's rules is therefore appropriate only if special circumstances warrant a deviation from
the general rule, and such a deviation will serve the public interest.20
7.
We find good cause to grant a waiver of portions of section 54.407(d), and sections
54.410(b)(2)(ii), 54.410(c)(2)(ii) and 54.410(e), for California, Colorado, Florida, Idaho, Nebraska,
Oregon, Utah, and Vermont, and the ETCs providing Lifeline service in these states, subject to the
conditions described below. We conclude that this waiver, coupled with these conditions, will help
ensure that eligible consumers continue to receive Lifeline service, while at the same time protecting the
Fund against waste, fraud and abuse. This waiver is in effect from June 1, 2013 until the earlier of
February 1, 2014, or once the state has come into compliance with the Commission's rules, or no longer
requires a waiver because the ETCs in that state collect certification forms directly from consumers.21
8.
These jurisdictions continue to act in good faith in partnership with the Commission to
implement the Lifeline Reform Order, and the Bureau finds that a limited waiver is necessary to give
these jurisdictions time to come into compliance with the Commission's rules. These states have taken
the lead in establishing systems for determining eligibility of Lifeline subscribers, and this waiver will
allow these states to preserve such systems and processes while they take additional steps to come into
compliance.22 As explained above, the number of states seeking a limited waiver from these rules has
declined from twenty to eight over the past year,23 which indicates that states continue to make progress
towards implementing a mechanism to provide certification forms to ETCs, and these efforts continue in
the states subject to the waiver at issue in this Order. In particular, California, which has more than half
of the Lifeline subscribers subject to this waiver, has taken significant steps towards putting in place
processes to come into compliance by the end of the waiver period.24 Moreover, based on information
provided by other states subject to this waiver, we believe other states will also come into compliance and


17 47 C.F.R. 1.3.
18 Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990).
19 WAIT Radio v. FCC, 418 F.2d 1153, 1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166.
20 Northeast Cellular, 897 F.2d at 1166.
21 As explained above, as of July 1, 2013, Colorado ceased to administer the federal Lifeline program, and therefore
no longer collected certification forms from consumers; ETCs now obtain the forms directly from consumers. See
supra
n.15. Therefore, the waiver for Colorado and the ETCs in that state runs from June 1, 2013 to July 1, 2013.
22 See 2013 USTelecom Petition at 3-4 (for description of Colorado's process prior to July 1, 2013); California
Letter at 2; Florida Letter at 1; Idaho Petition at 2-3; Nebraska Petition at 3; Oregon Petition at App. C; Utah
Petition at 5-6; Vermont Letter at 2.
23 See supra n.2.
24 See Universal Service Administrative Company, FCC Filings, 2013 Fourth Quarter,
http://www.usac.org/about/tools/fcc/filings/2013/Q4/LI08%20Lifeline%20Subscribers%20by%20State%20or%20Ju
risdiction.xlsx (last viewed Aug. 28, 2013) (California's subscribers as of March 31, 2013 represent approximately
55% of the total subscribers affected by the present waiver). While California's third party state Lifeline
administrator can provide certification forms to ETCs, the CPUC explains that the state has to amend its contract
with its information technology vendor to enable ETCs to be in full compliance with the Commission's
requirements. See 2013 USTelecom Petition at 6; California Letter at 2. California anticipates this process to be
complete and the new system fully implemented by January 1, 2014. See California Letter at 2.
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DA 13-1853

no longer require a waiver of these rules by the end of the waiver period.25 We also note that the
requirements that we waive here are subject to a petition for reconsideration asking the Commission to
eliminate these requirements. That petition remains pending.26 During the pendency of the waiver, the
Bureau will continue to work with states to achieve compliance.
9.
The conditions originally adopted in the two prior orders granting a waiver of these
requirements will remain in place for California, Colorado, Florida, Idaho, Nebraska, Oregon, Utah, and
Vermont for the time periods set forth in this waiver. Specifically, in these states, the state Lifeline
administrators or other state agencies must obtain executed certification forms from Lifeline subscribers
pursuant to section 54.410(d).27 During the waiver period, in accordance with section 54.410(b)(2)(i) and
54.410(c)(2)(i), these states must provide notice to ETCs that new subscribers have complied with the
Lifeline eligibility requirements, as well as provide notice to the ETCs that new subscribers have executed
a certification form.28 Notwithstanding the relief provided in this waiver, states must provide ETCs all of
the necessary information required for ETCs to transmit the information to the National Lifeline
Accountability Database.29 We remind ETCs in these states that they must maintain records to document
compliance with all Commission and state requirements governing the Lifeline program and must be
prepared, upon request, to produce to the Universal Service Administrative Company or the Commission
copies of notifications from the state that new subscribers have both complied with the Lifeline eligibility
requirements and have executed a certification form.30 In addition, no later than November 1, 2013, each
state still subject to this waiver must file a status update with the Bureau explaining the steps it has taken
to bring its processes into compliance, and, if applicable, why it is unable to come into compliance by the
end of the waiver period.
10.
We strongly encourage states and ETCs requiring additional time to come into compliance
with the rules to file a request for further relief far in advance of the expiration of this waiver. Any ETC
or state seeking further relief must include in its request a detailed explanation of the specific challenges
faced in coming into compliance with these aspects of the Commission's Lifeline certification rules, and a
firm timetable for coming into compliance with those rules. In addition, if an ETC or state believes that it
will be unable to come into compliance and seeks a permanent waiver from the rules, it must provide in
its request for permanent relief an explanation for why such relief is appropriate.

IV.

ORDERING CLAUSES

11.
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


25 See, e.g., Utah Petition at 6-7; UPSC Ex Parte (noting that Utah is moving away from utilizing a state
administrator by the end of 2013).
26 Petition for Reconsideration and Clarification of the United States Telecom Association, WC Docket Nos. 11-42
et al., at 5-7 (filed Apr. 2, 2012); see also Idaho Petition at 6; Oregon Petition at 4 (asking the Commission to
reconsider the rules).
27 See 47 C.F.R. 54.410(d); see also, e.g., Lifeline Reform Order, 27 FCC Rcd at 6710-12, paras. 113, 115-16, 120.
28 See 47 C.F.R. 54.410(b)(2)(i), 54.410(c)(2)(i).
29 See 47 C.F.R. 54.404(b)(6) (required information that must be transmitted to the National Lifeline
Accountability Database). State Lifeline administrators are permitted to populate and query the database. To the
extent that the state agency will not do so, or the state has not exercised its opt-out rights, the state agency must
provide this information to the ETCs so that the ETCs can maintain compliance with the rules. See Lifeline Reform
Order,
27 FCC Rcd at 6735, para. 182 n.482; id. at 6751, para. 221.
30 See 47 C.F.R. 54.417.
5

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DA 13-1853

0.91, 0.291, and 1.3 of the Commission's rules, 47 C.F.R. 0.91, 0.291, 1.3, that the request for waiver
filed by USTelecom IS GRANTED to the extent described herein.
12.
IT IS FURTHER 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, and 1.3 of the Commission's rules, 47 C.F.R. 0.91, 0.291, 1.3, that the request for waiver filed
by the Public Utility Commission of Oregon and the Oregon Telecommunications Association IS
GRANTED to the extent described herein.
13.
IT IS FURTHER 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, and 1.3 of the Commission's rules, 47 C.F.R. 0.91, 0.291, 1.3, that the request for waiver filed
by the Idaho Public Utilities Commission IS GRANTED to the extent described herein.
14.
IT IS FURTHER 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, and 1.3 of the Commission's rules, 47 C.F.R. 0.91, 0.291, 1.3, that the request for waiver filed
by the Utah Public Service Commission IS GRANTED to the extent described herein.
15.
IT IS FURTHER 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, and 1.3 of the Commission's rules, 47 C.F.R. 0.91, 0.291, 1.3, that the request for waiver filed
by the Nebraska Public Service Commission IS GRANTED to the extent described herein.
16.
IT IS FURTHER 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, and 1.3 of the Commission's rules, 47 C.F.R. 0.91, 0.291, 1.3, that sections 54.410(b)(2)(ii),
54.410(c)(2)(ii), 54.410(e) and portions of 54.407(d) of the Commission's rules, 47 C.F.R. 54.407(d),
54.410(b)(2)(ii), 54.410(c)(2)(ii), and 54.410(e), ARE WAIVED to the limited extent provided herein.
17.
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
6

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