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SureWest Telephone Petition for Waiver of State Certification Deadline

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Released: October 29, 2013

Federal Communications Commission

DA 13-2093

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
)
)

Petition for Waiver of Universal Service High-
)
WC Docket No. 08-71
Cost Filing Deadlines
)
)

SureWest Telephone Petition for a Waiver of
)
Section 54.314(d) Filing Deadlines for Submission )
of State Certification of Federal High-Cost
)
Support
)

ORDER

Adopted: October 29, 2013

Released: October 29, 2013

By the Chief, Wireline Competition Bureau:

I.

INTRODUCTION

1.
In this Order, we deny a request by SureWest Telephone (SureWest) for waiver of the
filing deadline for the annual state certification that high-cost support is being used only for its intended
purposes, as set forth in section 54.314(d)(1) and (d)(2) of the Commission’s rules.1 For the reasons
discussed below, we find that SureWest has failed to demonstrate that good cause warrants a waiver of
the Commission’s new certification rule adopted in the USF/ICC Transformation Order.2 The required
certification is a critical part of the Commission’s uniform national framework for accountability, and the
Commission has adopted a framework that provides support for the quarters that follow a late filing.3
SureWest will receive high-cost support in the third and fourth quarters of 2013 because the required
certification was filed before April 1, pursuant to section 54.314(d)(3) of the Commission’s rules.4

A.

Background

2.
Section 254(e) of the Communications Act of 1934, as amended, provides that “only an
eligible telecommunications carrier [(ETC)] designated under section 214(e) shall be eligible to receive
specific Federal universal service support,”5 and such support shall be used “only for the provision,


1 SureWest Telephone, Petition for a Waiver of Section 54.314(d) Filing Deadlines for Submission of State
Certification of Federal High-Cost Support, WC Docket No. 08-71 (filed Jan. 24, 2013) (SureWest Petition); 47
C.F.R. § 54.314(d)(1), (2).
2 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, 17850, para. 573 (2011) (USF/ICC Transformation Order); pets. for review
pending sub nom. In re: FCC 11-161
, No. 11-9900 (10th Cir. filed Dec. 8, 2011).
3 USF/ICC Transformation Order, 26 FCC Rcd at 17862-63, para. 617.
4 Letter from Paul Clanon, Executive Director, California Public Utilities Commission (California PUC), to Marlene
H. Dortch, Secretary, FCC and Karen Majcher, Vice President, High Cost and Low Income Division, Universal
Service Administrative Company (USAC), WC Docket No. 10-90, CC Docket No. 96-45 (dated Feb. 13, 2013)
(California PUC SureWest Certification Letter); 47 C.F.R. § 54.314(d)(3).
5 47 U.S.C. § 254(e).

Federal Communications Commission

DA 13-2093

maintenance, and upgrading of facilities and services for which the support is intended.”6 To implement
this statutory requirement, the Commission has adopted various certification and data filing requirements.
3.
In the USF/ICC Transformation Order, the Commission adopted several reforms to
harmonize and update annual ETC requirements by establishing a “uniform national framework for
accountability” that replaces the various data and certification filing deadlines that carriers were required
to meet previously.7 Such an accountability framework is “critical to ensure appropriate use of high-cost
support and to allow the Commission to determine whether it is achieving its goals efficiently and
effectively.”8 The framework incorporates annual unified reporting and certification procedures,9 and
adopts rules that better calibrate the consequences resulting from missed annual filing deadlines. Failure
to meet the annual data and certification deadlines imposed by the USF/ICC Transformation Order
results in reduced support to the ETC based on the length of the delay in certification or data
submission,10 rather than the immediate loss of an entire year’s support regardless of when the data or
certification is filed.
4.
Relevant to this Order, the USF/ICC Transformation Order’s accountability framework
includes a modified requirement for states to certify annually that federal universal service high-cost
support is used “only for the provision, maintenance, and upgrading of facilities and services for which
the support is intended.”11 In order for ETCs to receive high-cost support, states must file a certification
annually that all federal high-cost support provided to ETCs within that state “was used in the preceding
calendar year and will be used in the coming calendar year only for the provision, maintenance, and
upgrading of facilities and services for which the support is intended.”12 The first of these certifications
was due on October 1, 2012. Under the Commission’s rules, filing the state certification after October 1
results in the subject ETC losing one quarter of support in the subsequent year, filing after January 1
results in the subject ETC losing two quarters of support, filing after April 1 results in the subject ETC
losing three quarters of support, and filing after July 1 will result in the subject ETC losing all support in
the subsequent year.13

B.

SureWest’s Petition for Waiver

5.
On September 28, 2012, the California PUC timely filed a list of ETCs for which it made
the required annual certification, in advance of the deadline of October 1, 2012.14 The California PUC’s


6 Id.
7 USF/ICC Transformation Order, 26 FCC Rcd at 17850, para. 573.
8 Id.
9 See, e.g., 47 C.F.R. §§ 54.313, 54.314.
10 See 47 C.F.R. §§ 54.313(j), 54.314(d).
11 USF/ICC Transformation Order, 26 FCC Rcd at 17859, para. 607.
12 47 C.F.R. § 54.314(a). ETCs not subject to state jurisdiction must file a similar certification on their own behalf.
47 C.F.R. § 54.314(b).
13 47 C.F.R. § 54.314(d).
14 Letter from Paul Clanon, Executive Director, California PUC, to Marlene H. Dortch, Secretary, FCC and Karen
Majcher, Vice President, High Cost and Low Income Division, USAC, WC Docket No. 10-90, CC Docket No. 96-45
(dated Sept. 28, 2012). The California PUC filed a second timely certification for one additional ETC on October 1.
Letter from Paul Clanon, Executive Director, California PUC, to Marlene H. Dortch, Secretary, FCC and Karen
Majcher, Vice President, High Cost and Low Income Division, USAC, WC Docket No. 10-90, CC Docket No. 96-45
(dated Oct. 1, 2012).
2

Federal Communications Commission

DA 13-2093

list of ETCs did not include SureWest.15 On January 24, 2013, seven days after it was contacted by
USAC about its missing certification, SureWest filed for certification with the California PUC and filed
the instant petition for waiver.16 On February 19, 2013, the California PUC filed a certification with
respect to SureWest pursuant to section 54.314 of the Commission’s rules.17

II.

DISCUSSION

6.
We find that SureWest has failed to demonstrate that there is good cause to waive section
54.314(d)(1) and (d)(2) of the Commission’s rules.18 The required certification is a critical part of the
Commission’s new national framework for accountability. In adopting this framework, the Commission
specifically provided for the loss of support to be proportional to the time period in which there is non-
compliance.19 In general, deadlines set in Commission rules are strictly enforced,20 and the new
framework ensures that the consequences of non-compliance are appropriate rather than unduly harsh.
For these reasons, the Bureau concludes that the Commission intended for these new deadlines to be
strictly enforced. SureWest’s mere confusion regarding the Commission’s rules is not sufficient to
establish good cause for a waiver of the Commission’s new accountability framework.21 SureWest also
failed to quickly cure its error. Due to its failure to undertake due diligence regarding timely compliance
with filing deadlines, SureWest did not file for ETC certification with the California PUC until January
24, 2013—over three months past the October 1, 2012 state certification deadline. The magnitude of
SureWest’s delay in filing the requisite certification further supports our conclusion that good cause to
waive the Commission’s new accountability framework has not been established.22 We therefore deny


15 SureWest Petition at 2.
16 Id. at 3-4, Exh. A.
17 California PUC SureWest Certification Letter.
18 47 C.F.R. § 54.314(d)(1), (2). Generally, the Commission’s rules may be waived if good cause is shown. 47
C.F.R. § 1.3. The Commission may exercise its discretion to waive a rule where the particular facts make strict
compliance inconsistent with the public interest. Northeast Cellular Telephone Co. v. FCC, 897 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); Northeast Cellular, 897 F.2d at 1166. 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. Northeast Cellular, 897 F.2d at 1166. “[D]eadlines can only be waived under
‘unusual or compelling circumstances.’” NetworkIP, LLC v. FCC, 548 F.3d 116, 126 (D.C. Cir. 2008) (citation
omitted).
19 See supra para. 3.
20 See NetworkIP v. FCC, 548 F.3d at 127.
21 See Federal-State Joint Board on Universal Service; South Slope Cooperative Telephone Company, Petition for
Waiver of Filing Deadline in 47 C.F.R. Section 54.307(c)
, CC Docket No. 96-45, Order, 19 FCC Rcd 17493, 17494,
para. 5 (Wireline Comp. Bur. 2004) (South Slope) (“A carrier's confusion regarding the rules does not establish
special circumstances that warrant a deviation from the Commission's rules”); Petitions for Waiver of Universal
Service High-Cost Filing Deadlines, Grande Communications Networks, Inc. Petition for Waiver of Section
54.307(c) of the Commission's Rules et al.
, WC Docket No. 08-71, CC Docket No. 96-45, Order, 26 FCC Rcd 6187,
6191, para. 12 (Wireline Comp. Bur. 2011) (“Carriers are responsible for reviewing and understanding the rules to
ensure that submissions are filed in a timely manner”).
22 See supra para. 5; compare Federal-State Board on Universal Service; 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 (Wireline Comp. Bur. 2007)
(granting waiver when line count data was received one business day after the filing deadline); Federal-State Board
on Universal Service; Citizens Communications and Frontier Communications Petition for Waiver of Section
54.802(a) of the Commission’s Rules
, CC Docket 96-45, Order, 20 FCC Rcd 16761 (Wireline Comp. Bur. 2005)
(continued…)
3

Federal Communications Commission

DA 13-2093

the request for waiver of the Commission’s rules. We note that because the California PUC filed prior to
April 1, 2013, pursuant to section 54.314(d)(3) of the Commission’s rules, SureWest is still eligible to
receive high-cost support in the third and fourth quarters of 2013.23

III.

ORDERING CLAUSES

7.
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.
8.
IT IS FURTHER ORDERED that the petition for waiver of section 54.314(d)(1) and
(d)(2) of the Commission’s rules, 47 C.F.R. § 54.314(d)(1) and (d)(2), filed by SureWest Telephone IS
DENIED.
9.
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
(Continued from previous page)


(granting waiver when deadline was missed by two business days), with Federal-State Joint Board on Universal
Service, Cedar Valley Communications, Inc. Petition for Waiver of 47 C.F.R. §§ 54.307(d), 54.314(a), and
54.904(d)
, CC Docket 96-45, Order, 23 FCC Rcd 114 (Wireline Comp. Bur. 2008) (denying waiver because the
filing deadline was missed by more than five months); NPI-Omnipoint Wireless, LLC Petition for Waiver of Sections
54.307(c), 54.802(a), and 54.903 of the Commission’s Rules
; SouthEast Telephone, Inc. Petition of Waiver of
Deadlines in 47 C.F.R. § 54.809(c); SEI Data, Inc. Petition for Waiver of Filing Deadline in 47 C.F.R. Section
54.802(a)
, CC Docket 96-45, Order, 22 FCC Rcd 4946 (Wireline Comp. Bur. 2007) (denying NPI’s waiver because
the data was filed six months late; denying SouthEast’s waiver because the data was filed two months late; denying
SEI’s waiver because the data was filed three months late); South Slope (denying waiver because the data was filed
more than a month late).
23 47 C.F.R. § 54.314(d)(3); see supra para. 4.
4

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