[Federal Register: July 16, 2003 (Volume 68, Number 136)]
[Rules and Regulations]
[Page 41936-41942]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jy03-20]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[CC Docket No. 96-45; FCC 03-115]
Federal-State Joint Board on Universal Service; Promoting
Deployment and Subscribership in Unserved and Underserved Areas,
Including Tribal and Insular Areas
AGENCY: Federal Communications Commission.
ACTION: Final rule; petitions for reconsideration.
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SUMMARY: In this document, the Commission addresses the requests of
several petitioners to reconsider portions of the Twelfth Report and
Order and Further Notice of Proposed Rulemaking, adopting rules to
provide additional, targeted universal service support to low-income
consumers on tribal lands and establishing a framework for the
resolution of eligible telecommunications carrier (ETC) designations.
The Commission also concludes that the definition of ``reservation''
for purposes of the universal service programs remains the same as that
adopted in the Twelfth Report and Order and Further Notice of Proposed
Rulemaking. The Commission addresses several requests for
reconsideration relating to the rule amendments to the universal
service low-income programs adopted in the Twelfth Report and Order and
Further Notice of Proposed Rulemaking. The Commission also clarifies,
on its own motion, the Commission's rules regarding the qualification
criteria for enhanced Lifeline and Link-Up service. In addition, the
Commission declines to adopt a rule that would require resolution of
the merits of any request for ETC designation within six months of the
filing date. The Commission also declines to extend the enhanced low-
income programs to the Northern Mariana Islands.
DATES: Effective August 15, 2003.
FOR FURTHER INFORMATION CONTACT: Shannon Lipp, Attorney,
Telecommunications Access Policy Division, Wireline Competition Bureau,
(202) 418-7400.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Twenty-Fifth Order on Reconsideration and Report and Order (Order) in
CC Docket No. 96-45 released on May 21, 2003. This Order was also
released with a companion Further Notice of Proposed Rulemaking. The
full text of this document is available for public inspection during
regular business hours in the FCC Reference Center, Room CY-A257, 445
Twelfth Street, SW., Washington, DC 20554.
I. Introduction
1. In this Order, we address the requests of several petitioners to
reconsider portions of the Twelfth Report and Order and Further Notice
of Proposed Rulemaking, 65 FR 47941, August 4, 2003, adopting rules to
provide additional, targeted universal service support to low-income
consumers on tribal lands and establishing a framework for the
resolution of Eligible Telecommunications Carrier (ETC) designations
under section 214(e)(6) of the Communications Act of 1934, as amended
(the Act). The advancement of universal service on tribal lands remains
a major policy goal of this Commission. Through our on-going dialogue
with the tribes, as most recently exemplified by the Commission's
launch of the Indian Telecommunications Initiatives in Phoenix, Arizona
on September 19, 2002, the Commission continues in its efforts to
promote telecommunications subscribership within American Indian and
Alaskan Native tribal communities.
2. We affirm that the framework adopted by the Commission for
resolution of ETC designations on tribal lands provides a reasonable
means to facilitate the expeditious resolution of such requests, while
balancing the respective federal, state, and tribal interests. We also
conclude that the definition of ``reservation'' for purposes of the
universal service programs remains the same as that adopted in the
Twelfth Report and Order and Further Notice of Proposed Rulemaking
despite the Bureau of Indian Affairs' (BIA) subsequent modification of
that definition for purposes of its direct assistance programs. We
address several requests for reconsideration relating to the rule
amendments to the universal service low-income programs adopted in the
Twelfth Report and Order and
[[Page 41937]]
Further Notice of Proposed Rulemaking. We also clarify, on our own
motion, the Commission's rules regarding the qualification criteria for
enhanced Lifeline and Link-Up service. In addition, we decline to adopt
a rule that would require resolution of the merits of any request for
ETC designation within six months of the filing date. We also decline
to extend the enhanced low-income programs to the Northern Mariana
Islands.
II. Order on Reconsideration
A. Petitions for Reconsideration
3. In September 2000, petitions for reconsideration were filed in
response to the Twelfth Report and Order and Further Notice of Proposed
Rulemaking. Several petitioners request that the Commission reconsider
the framework to resolve jurisdictional issues under section 214(e)(6)
for carriers seeking ETC designation on tribal lands. Several
petitioners also raise issues relating to the amendments to the
universal service low-income programs adopted in the Twelfth Report and
Order and Further Notice of Proposed Rulemaking.
B. Discussion
1. ETC Designation Framework for Carriers Serving Tribal Lands
4. As discussed in greater detail, we deny petitions for
reconsideration of the framework to resolve requests for ETC
designations for carriers providing service on tribal lands. We affirm
the Commission's prior conclusion that this framework facilitates the
expeditious resolution of such requests, while balancing the relevant
federal, state, and tribal interests in determining jurisdiction over
carriers operating on tribal lands. In addition, we note that similar
arguments were previously considered and rejected by the Commission in
the Twelfth Report and Order and Further Notice of Proposed Rulemaking.
We find no basis to now reconsider these issues.
5. Consistent with the Commission's prior conclusion, we decline to
adopt the suggestion of those petitioners contending that section
214(e)(6) provides the Commission with the authority to assume
jurisdiction over all carriers seeking ETC designation for service on
tribal lands. These petitioners contend that any exercise of state
jurisdiction in designating ETCs on tribal lands is inconsistent with
the federal trust responsibility to tribes and the principle of tribal
sovereignty. As the Commission concluded in the Twelfth Report and
Order and Further Notice of Proposed Rulemaking, we do not believe that
Congress intended the Commission to use section 214(e)(6) to usurp the
role of a state commission that has jurisdiction over a carrier
providing service on tribal lands. To the contrary, in adopting section
214(e)(6), Congress recognized that some state commissions had asserted
jurisdiction over tribal lands. Congress also acknowledged pending
jurisdictional disputes between states and tribes and made clear that
the adoption of section 214(e)(6) was not ``intended to impact
litigation regarding jurisdiction between State and federally-
recognized tribal entities.''
6. We affirm that this framework is consistent with the federal
trust responsibility to the tribes and the principle of tribal
sovereignty. In establishing the framework for the designation of
carriers serving tribal lands, the Commission was guided by the
recognition of, and respect for, principles of tribal sovereignty and
self-determination. The designation framework recognizes that the
principles of tribal sovereignty may lead some carriers and tribes to
be unwilling to submit jurisdictional questions relating to tribal
lands to a state commission. The adopted framework therefore provides
the opportunity for parties to submit this issue directly to the
Commission for resolution. In addition, the availability of a federal
forum allows carriers and tribes to avoid the potential costs and
delays that would arise if they were required to first challenge the
jurisdictional issue in state proceedings and judicial appeals prior to
requesting designation from this Commission under section 214(e)(6).
7. For the reasons discussed, we also decline to grant SDITC's
request that the Commission require the relevant state commission to
make the threshold determination as to whether it has jurisdiction over
a carrier offering service on tribal lands. In addition, we note that
nothing in the Commission's designation framework affects the ability
of a carrier to seek designation from a state commission. The
Commission's framework merely provides carriers with the option to seek
resolution of the threshold jurisdictional issue on tribal lands from
this Commission.
8. We also decline to adopt Western Wireless' suggestion that the
Commission establish a standard whereby the Commission assumes
jurisdiction under section 214(e)(6) in those instances in which the
requesting carrier has obtained an agreement with the tribe and
proposes to offer universal service that is targeted to the tribal
land. In so doing, we note the admonition of the United States Supreme
Court that ``[g]eneralizations on this subject have become * * *
treacherous.'' Although the existence of a consensual relationship
between the tribe and carrier regarding the provision of
telecommunications service to tribal lands may be a significant factor
in the jurisdictional analysis, we do not believe that it is prudent or
necessary to establish such a fixed presumption. A careful analysis of
the specific agreement between the tribe and carrier is necessary to
determine its relevance to the jurisdictional determination. As noted
in the Twelfth Report and Order and Further Notice of Proposed
Rulemaking, the issue of whether a state commission lacks jurisdiction
over a carrier is a particularized inquiry guided in each case by the
principles of tribal sovereignty, federal Indian law, and treaties, as
well as state law. The framework established by the Commission allows
for the careful balancing of the respective federal, state, and tribal
interests, including an examination of the relationship between the
carrier and tribe, to make this determination on a case-by-case basis.
We therefore decline to adopt Western Wireless' proposal.
2. Definition of ``Tribal Lands''
9. Consistent with the request of NTCA, we confirm that the
Commission's definition of ``tribal lands'' for purposes of considering
requests for ETC designation under section 214(e)(6) is identical to
the definition of ``tribal lands'' utilized in the context of the
enhanced Lifeline and Link-Up support programs. In the Twelfth Report
and Order and Further Notice of Proposed Rulemaking, the Commission
adopted a definition of ``tribal lands'' that included ``reservation''
and ``near reservation'' areas, as defined, at that time, in sections
20.1(v) and (r) of the BIA regulations. Subsequently, the Commission
became aware that the term ``near reservation'' included wide
geographic areas, extending substantially beyond the boundaries of
reservations, that do not possess the same characteristics that
warranted the targeting of support to reservations. For example, areas
such as Phoenix, Arizona and Sacramento, California are considered to
be ``near reservation areas,'' even though they are not isolated and
underserved. As a result, the Commission issued an order staying
implementation of the enhanced Lifeline and Link-Up rules to the extent
that they apply to qualifying low-income consumers located on ``near
reservation'' areas.
10. We agree with NTCA that the Commission's rationale for adopting
a
[[Page 41938]]
separate designation framework for carriers seeking designation on
tribal lands does not extend to ``near reservation'' areas, as defined
by BIA. As defined by BIA, near reservations are designated areas or
communities that are adjacent or contiguous to reservations where
financial assistance and social service programs are provided. Because
these areas often extend substantially beyond the exterior boundaries
of reservations, we do not believe they invoke the same jurisdictional
concerns and principles of tribal sovereignty associated with areas
within the exterior boundaries of reservations. Therefore, pending
resolution of the issues presented in the Tribal Stay Order, 65 FR
58721, October 2, 2000, petitions for designation filed under section
214(e)(6) relating to ``near reservation'' areas will not be considered
as petitions relating to tribal lands. Petitioners seeking ETC
designation in such areas must follow the procedures outlined in the
Twelfth Report and Order for non-tribal lands prior to submitting a
request for designation to this Commission under section 214(e)(6).
11. We also take this opportunity to confirm that the definition of
``reservation'' and ``near reservation'' for purposes of the universal
service programs remains the same as that adopted in the Twelfth Report
and Order and Further Notice of Proposed Rulemaking. Therefore, within
the context of the universal service programs, the term ``reservation''
means ``any federally recognized Indian tribe's reservation, Pueblo, or
Colony, including former reservations in Oklahoma, Alaska Native
regions established pursuant to the Alaska Native Claims Settlement Act
(85 Stat. 688), and Indian allotments.'' The term ``near reservation''
is defined as those areas or communities adjacent or contiguous to
reservations which are designated by the Department of Interior's
Commission of Indian Affairs upon recommendation of the local Bureau of
Indian Affairs Superintendent, which recommendation shall be based upon
consultation with the tribal governing body of those reservations, as
locales appropriate for the extension of financial assistance and/or
social services, on the basis of such general criteria as: (1) Number
of Indian people native to the reservation residing in the area, (2) a
written designation by the tribal governing body that members of their
tribe and family members who are Indian residing in the area, are
socially, culturally and economically affiliated with their tribe and
reservation; (3) geographical proximity of the area to the reservation,
and (4) administrative feasibility of providing an adequate level of
services to the area.
12. As noted, the Commission defined the term ``reservation'' in a
manner consistent with section 20.1(v) of the BIA regulations and
stated that any future BIA modifications to the definition of
``reservation'' would also apply to the definitions adopted in the
Twelfth Report and Order. Following the release of the Twelfth Report
and Order and Further Notice of Proposed Rulemaking, BIA revised its
definition of ``reservation'' in such a way as to no longer explicitly
include ``former reservations in Oklahoma'' or ``Indian allotments.''
Residence in a ``service area,'' rather than a ``reservation,'' is the
new geographic eligibility requirement to receive financial assistance.
As defined by BIA, ``service area'' means a geographic area, designated
by the Assistant Secretary of Indian Affairs, where financial
assistance and social services programs are provided. Such a geographic
area designation can include a reservation, near reservation, or other
geographic location. Under this mechanism, tribes may also request
alternative service area designations. As noted, BIA has also
eliminated section 20.1(r) defining near reservations and replaced it
with a similar definition now contained in section 20.100.
13. To alleviate the potential for ongoing administrative
uncertainty, we conclude that any future modifications to the
definition of ``reservation'' or ``near reservation'' will take effect
in the context of the universal service programs only upon specific
action by the Commission. In so doing, we decline to incorporate BIA's
recent revisions to the definition of ``reservation.'' Notwithstanding
the fact that BIA modifications did not include ``former reservations
in Oklahoma'' and Indian allotments in its definition of
``reservation,'' BIA continues to provide financial assistance in these
areas. Accordingly, we find that maintaining the current definition of
``reservation'' for universal service purposes will be consistent with
BIA's action in continuing to provide assistance in these areas, and
with the Commission's commitment to increase subscribership and improve
access to telecommunications services. We believe that this will ensure
that the definition of ``reservation'' will remain consistent with the
underlying goals of the Commission's enhanced Lifeline and Link-Up
programs.
3. Universal Service Low-Income Programs
14. SDITC Petition. We grant SDITC's request to reconsider the
Commission's finding that non-wireline carriers are eligible to receive
Link-Up support for that portion of a handset that receives wireless
signals. Upon reconsideration, we conclude that Link-Up should not
offset any costs of a wireless handset. The Commission's rules preclude
Link-Up support for facilities or equipment that fall on the customer
side of the demarcation point. Although the Commission has never
defined a demarcation point for wireless service, it has generally
treated wireless handsets for purposes of bundled marketing of
equipment and services as Customer Premises Equipment (CPE), which is
equipment that falls on the customer side of the demarcation point
between customer and network facilities. At the same time, we recognize
that some portion of a wireless handset may perform functions analogous
to the functions on the network side of the demarcation point, which,
in the wireline context, would be eligible for Link-Up support.
Nevertheless, under all the circumstances, we find that Link-Up should
not support any costs of a wireless handset. In reaching this decision,
we consider the difficulty of defining what portion, if any, of a
wireless handset is on the network side of the demarcation point, as
well as the difficulty in isolating the costs of such portion. We note
that we make this finding regarding wireless handsets solely for
purposes of determining what charges are eligible for Link-Up
discounts. We further note that non-wireline carriers remain eligible
to receive Link-Up support for the ``customary charge for commencing
telecommunications service,'' as defined in Sec. 54.411 of the
Commission's rules, including wireless activation fees. Where wireless
telecommunications service is provided to an eligible resident of
tribal lands, such charges may also continue to include ``facilities-
based'' charges associated with the construction of facilities needed
to initiate service, as provided in Sec. 54.411(a)(3).
15. Florida Commission Petition. We deny the Florida Commission's
requests for reconsideration. We disagree with the Florida Commission's
contention that the expansion of the existing Lifeline program may be
without clear statutory authority and without support in the record. As
the Commission explained in the Twelfth Report and Order and Further
Notice of Proposed
[[Page 41939]]
Rulemaking, the authority to provide additional federal Lifeline and
Link-Up assistance and broaden consumer qualification criteria for low-
income consumers on tribal lands derives from sections 1, 4(i), 201,
205, and section 254 of the Act. The Commission concluded that the
unavailability or unaffordability of telecommunications service on
tribal lands is at odds with its statutory goal of ensuring access to
such services to ``[c]onsumers in all regions of the Nation, including
low-income consumers.'' The Commission further concluded that the lack
of access to affordable telecommunications services on tribal lands is
inconsistent with its statutory directive ``to make available, so far
as possible, to all the people of the United States, without
discrimination on the basis of race, color, religion, national origin,
or sex, a rapid, efficient Nationwide * * * wire and radio
communication service, with adequate facilities at reasonable
charges.'' The Commission also determined that its actions were
consistent with its general authority to ``perform any and all acts,
make such rules and regulations, and issue such orders, not
inconsistent with this Act, as may be necessary in the execution of its
functions.''
16. In addition, the evidence and record before us at the time
supported the expansion of the Lifeline and Link-Up program and nothing
on reconsideration persuades us otherwise. In reaching the decision to
enhance Lifeline and Link-Up assistance, the Commission relied on
statistical evidence that demonstrated that American Indian and Alaska
Native communities on average have the lowest reported telephone
subscribership levels in the country. For example, the Commission noted
that, according to the most recent census data, although approximately
94 percent of all Americans have a telephone, only 47 percent of
Indians on reservations and other tribal lands have a telephone. In
addition to these statistics, other statistical evidence, as well as
the majority of comments, demonstrated that low incomes and poverty are
the key reasons for low subscribership levels on tribal lands. Along
with these conditions, the record also identified other factors as
impediments to subscribership. These included: (1) The cost of basic
service in certain areas (as high as $38 per month in some areas); (2)
the cost of intrastate toll service (limited local calling areas); (3)
inadequate telecommunications infrastructure and the cost of line
extensions and facilities deployment in remote, sparsely populated
areas; and (4) the lack of competitive service providers offering
alternative technologies. Finally, the record demonstrated that non-
Indian, low-income households on tribal lands may face the same or
similar economic and geographic barriers as those faced by low-income
Indian households. After careful consideration of this evidence, the
Commission concluded that specific and immediate action was needed to
remedy the disproportionately lower levels of infrastructure deployment
and subscribership prevalent among tribal communities to ensure
affordable access to telecommunications services in these areas.
17. We also reject the Florida Commission's contention that the
creation of a fourth tier of federal Lifeline support available to
eligible telecommunications carriers serving qualifying low-income
individuals living on tribal lands ``may raise issues of
discrimination.'' Specifically, the Florida Commission ``questions
whether there is any discriminatory impact by singling out Native
American and Alaska tribal areas for the benefit of up to an additional
$25.00 per primary residential line.'' The Florida Commission adds that
``[i]f the goal is to increase subscribership for these populations, we
respectfully request first increasing efforts to enroll qualified low-
income Native Americans and Alaskan Natives in the already existing
Lifeline and Link-Up programs.''
18. The goal of the Twelfth Report and Order and Further Notice of
Proposed Rulemaking was not, as the Florida Commission implies, to
increase subscribership solely among low-income Native American and
Alaskan Natives. As explained, the Commission recognized that American
Indian and Alaska Native communities, on average, have the lowest
reported telephone subscribership levels in the country. In response,
the Commission adopted amendments to its universal service rules to
provide additional, targeted support under the low-income programs for
all qualifying low-income individuals on tribal lands, as opposed to
limiting these benefits solely to qualifying low-income tribal members
on tribal lands. In addition, the Commission noted that its efforts in
the Twelfth Report and Order and Further Notice of Proposed Rulemaking
represent only the first step in addressing the causes of low
subscribership within underserved and unserved areas. The Commission
therefore continues to monitor the causes of low subscribership
throughout the Nation and will be addressing this important issue on an
ongoing basis. Accordingly, we do not find that our rules raise issues
of discrimination.
4. Qualification Criteria for Enhanced Lifeline and Link-Up Service
19. We also clarify, on our own motion, the Federal default
qualification criteria for enhanced Lifeline and Link-Up service as set
forth in Sec. 54.409(c) of the Commission's rules. As discussed, in
the Twelfth Report and Order and Further Notice of Proposed Rulemaking,
the Commission modified its universal service rules to increase access
to telecommunications services among low-income individuals on tribal
lands. In particular, the Commission created a fourth tier of federal
Lifeline support to substantially reduce the cost of basic telephone
service for such individuals. In addition, the Commission revised its
rules governing the Link-Up program to provide increased federal
support to reduce the costs of initial connection charges and line
extension charges. Finally, the Commission broadened the federal
default qualification criteria to enable low-income individuals living
on tribal lands to qualify for this enhanced support by certifying
their participation in certain additional means-tested assistance
programs. We make this clarification to ensure that those otherwise
eligible to participate in the enhanced programs will have the full
opportunity to do so.
20. We take this opportunity to clarify that a low-income
individual living on tribal lands in a state that mandates state
Lifeline support shall be eligible for Tiers One, Two, Three, and Four
of federal Lifeline support if the consumer meets the eligibility
criteria established by the state for such support. If the consumer
does not meet the eligibility criteria established by the state for
such support, or if the consumer lives in a state that does not mandate
state Lifeline support, the consumer living on tribal lands may qualify
for Tiers One, Two, and Four of federal Lifeline support if the
consumer participates in at least one of the following nine programs:
Bureau of Indian Affairs General Assistance, Tribally-Administered
Temporary Assistance for Needy Families, Head Start (only those meeting
its income qualifying standard), the National School Lunch Program's
free lunch program, Medicaid, Food Stamps, Supplemental Security
Income, Federal Public Housing Assistance (Section 8) or the Low-Income
Home Energy Assistance Program. In addition, such consumer may still be
eligible to receive Tier Three of federal Lifeline support, as
described in Sec. 54.403(a)(3) of the Commission's rules, if the ETC
[[Page 41940]]
offering the Lifeline service provides carrier-matching funds. We
strongly encourage eligible carriers to ensure that customer service
representatives handling inquiries about the universal service low-
income programs, especially enhanced Lifeline and Link-Up, are trained
with regard to the operative eligibility criteria as clarified in this
Order. We also take this opportunity to reiterate that the Commission's
rules require eligible carriers to publicize the availability of
Lifeline and Link-Up services in a manner reasonably designed to reach
those likely to qualify for those services.
III. Report and Order Addressing the Further Notice of Proposed
Rulemaking in the Twelfth Report and Order
A. Discussion
21. We decline to adopt a rule at this time that would require
state commissions to resolve the merits of any request for designation
under section 214(e) within six months or some shorter period. We
conclude that such action is unnecessary at this time. In so doing, we
note that a number of ETC designation requests pending at the time of
release of the Twelfth Report and Order and Further Notice of Proposed
Rulemaking have been resolved by state commissions. We commend these
state commissions for resolving those designation requests. We continue
to encourage state commissions to act with the appropriate analysis yet
as expeditiously as possible on all such requests. In addition, we note
that a state's action on ETC designation requests may be reviewed under
section 253 as a potential barrier to entry. Although we continue to
encourage states to address such requests in a timely manner, we find
no need for further action at this time.
22. In addition, we disagree with those commenters who suggest that
the Commission should adopt a rule requiring resolution within six
months of all ETC designations filed with the Commission, including
requests for designation on tribal lands. In the Twelfth Report and
Order and Further Notice of Proposed Rulemaking, the Commission
committed to resolve the merits of any request for designation on
tribal lands within six months of release of an order resolving the
jurisdictional issue. We decline, however, to extend this commitment to
resolution of the jurisdictional issues presented in tribal ETC
designation proceedings. As the Commission noted in the Twelfth Report
and Order and Further Notice of Proposed Rulemaking, the determination
of whether a state commission lacks jurisdiction over a carrier
providing service on tribal lands is a legally complex inquiry that may
require additional time to fully address. The Commission also has
specifically committed to resolving, within six months from the date
filed, all designation requests for non-tribal lands that are properly
before it pursuant to section 214(e)(6). The Commission has acted
expeditiously on all ETC requests filed since the release of the
Twelfth Report and Order and Further Notice of Proposed Rulemaking. We
conclude, therefore, that no further measures beyond those adopted in
the Twelfth Report and Order and Further Notice of Proposed Rulemaking
are required at this time to expedite the resolution of ETC designation
requests filed before this Commission.
IV. Order Addressing the Request of the Commonwealth of Northern
Mariana Islands
A. Discussion
23. We decline, at this time, to extend to the Northern Mariana
Islands the same measures that were adopted to promote subscribership
on tribal lands. The record is insufficient to establish that the
Northern Mariana Islands has the same impediments to subscribership and
infrastructure investment as tribal lands.
24. The actions taken by the Commission in the Twelfth Report and
Order and Further Notice of Proposed Rulemaking were designed to
address impediments to subscribership and infrastructure investment on
tribal lands, where high cost service and low subscribership are most
egregious. The Commission identified a number of factors that are
primary impediments to subscribership on tribal lands, including the
cost of basic service, the cost of intrastate toll service, inadequate
telecommunications infrastructure and the cost of line extensions, and
the lack of competitive service providers offering alternative
technologies. We find that CNMI has not provided any information that
would allow us to identify the main impediments to subscribership on
the Northern Mariana Islands (e.g., geographic isolation, limited local
calling areas, cost of basic service). CNMI merely asserts that the
Northern Mariana Islands has low telephone penetration rates, low
income levels, and a trust relationship with the federal government
that is similar to that of tribal communities. Given the lack of
specific information in the record, we cannot conclude that the
enhanced low-income programs established for tribal lands would be
effective in addressing the causes of low subscribership rates on the
Northern Mariana Islands.
25. We note that the Commission specifically chose not to apply the
actions taken in the Twelfth Report and Order and Further Notice of
Proposed Rulemaking more generally to all high-cost areas and all
insular areas, which would have included the Northern Mariana Islands.
The Commission found that, although the record demonstrated that
subscribership levels are below the national average in other low-
income, rural areas and in certain insular areas, it did not permit a
determination that the factors causing low subscribership on tribal
lands are the same factors causing low subscribership among other
populations. We find that CNMI has not provided any evidence that would
lead us to depart from this determination. Specifically, CNMI has not
demonstrated that the Northern Mariana Islands has low penetration
rates and low per capita incomes that are similar to those on tribal
lands. Although CNMI provides 1995 data suggesting that telephone
penetration rates and per capita incomes on the Northern Mariana
Islands are below the national average, even these statistics exceed
those that exist on tribal lands. In the Twelfth Report and Order and
Further Notice of Proposed Rulemaking, the Commission noted that
subscribership on reservations was approximately 47 percent and per
capita incomes were only $4,478. By comparison, CNMI indicates that the
subscribership rates in the Northern Mariana Islands is 61 percent and
per capita income is $6,897. We therefore deny CNMI's request to extend
to the Northern Mariana Islands the same measures adopted by the
Commission to boost subscribership levels on tribal lands. As noted,
however, the Commission continues to monitor the causes of low
subscribership and develop appropriate measures to address these causes
as necessary.
V. Procedural Matters
Supplemental Final Regulatory Flexibility Analysis
26. As required by the Regulatory Flexibility Act (RFA), an Initial
Regulatory Flexibility Analysis (IRFA) was incorporated in the Tribal
Stay Order and Further Notice of Proposed Rulemaking. The Commission
sought written public comment on the proposals in the Further Notice of
Proposed Rulemaking, including comment on the IRFA. In addition, a
Final Regulatory Flexibility Analysis (FRFA) and IRFA were included in
the Twelfth Report and Order and Further
[[Page 41941]]
Notice of Proposed Rulemaking. In compliance with the RFA, this present
FRFA supplements the FRFA contained in the Twelfth Report and Order and
Further Notice of Proposed Rulemaking to the extent that changes to
that Order adopted here on reconsideration require changes in the
conclusions reached in the FRFA.
1. Need for and Objectives of the Order
27. The Commission issues this Order to ensure that enhanced
Lifeline and Link-Up support is targeted to only the most underserved
segments of our Nation. The Commission takes this action as part of its
implementation of the Act's mandate that ``[c]onsumers in all regions
of the Nation * * * have access to telecommunications and information
services * * *.'' In this Order, we affirm that the framework adopted
by the Commission for resolution of ETC designations on tribal lands
provides a reasonable means to facilitate the expeditious resolution of
such requests, while balancing the respective federal, state, and
tribal interests. In addition, we conclude that the definition of
``reservation'' for purposes of the universal service programs remains
the same as that adopted in the Twelfth Report and Order and Further
Notice of Proposed Rulemaking despite the Bureau of Indian Affairs'
(BIA) subsequent modification of that definition for purposes of its
direct assistance programs. We also clarify the Commission's rules
regarding the qualification criteria for enhanced Lifeline and Link-Up
service.
2. Summary of Significant Issues Raised by Public Comments in Response
to the IRFA
28. We received no comments directly in response to the IRFA in
this proceeding. However, we reconsider our conclusion that Link-Up
support should offset a portion of the costs of a wireless handset.
Pending resolution of the issues presented in the Tribal Stay Order, we
also conclude that carriers seeking designation as an ETC on ``near
reservation'' areas must follow the procedures established for non-
tribal designations in the Twelfth Report and Order and Further Notice
of Proposed Rulemaking.
3. Description and Estimate of the Number of Small Entities to Which
Rules Will Apply
29. In the FRFA at paragraphs 162-178 of the Twelfth Report and
Order and Further Notice of Proposed Rulemaking, we described and
estimated the number of small entities that would be affected by the
new universal service rules and amendments for low-income consumers
residing on tribal lands. The rule amendments adopted herein apply to
the same entities affected by the rules adopted in that order. We
therefore incorporate by reference paragraphs 162-178 of the Twelfth
Report and Order and Further Notice of Proposed Rulemaking.
4. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements
30. The actions taken herein will require carriers seeking
designation as an ETC on near reservation areas to file such requests
with the relevant state commission. Pending resolution of the issues
presented in the Tribal Stay Order and Further Notice of Proposed
Rulemaking, only in those instances where a carrier provides the
Commission with an affirmative statement from a court of competent
jurisdiction or the state commission that it lacks jurisdiction to
perform the designation will we consider section 214(e)(6) designation
requests from carriers serving near reservation areas.
5. Steps Taken to Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
31. In this Order, we confirm that the definition of
``reservation'' for purposes of the universal service programs remains
the same as that adopted in the Twelfth Report and Order and Further
Notice of Proposed Rulemaking. This decision will not result in a
significant economic impact on small entities. We also conclude that
Link-Up support should not offset any costs of a wireless handset.
Given that Link-Up support is a one-time reduction in the eligible
consumer's connection charge, we do not believe that this decision will
result in a significant economic impact on any small wireless entities.
6. Report to Congress
32. The Commission will send a copy of this Order, including this
FRFA, in a report to be sent to Congress pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A). In addition, the Commission will
send a copy of the Order, including the FRFA, to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the Order and
FRFA (or summaries thereof) will also be published in the Federal
Register. See 5 U.S.C. 604(b).
VI. Ordering Clauses
33. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1-4, 214(e), and 254 of the Communications Act of
1934, as amended, and 254, and Sec. 1.429 of the Commission's rules,
this Order on Reconsideration and Report and Order is adopted.
34. It is further ordered that the captioned petitions for
reconsideration of the Twelfth Report and Order and Further Notice of
Proposed Rulemaking are denied, to the extent discussed herein.
35. It is further ordered that the petition for reconsideration of
the National Telephone Cooperative Association, filed on September 5,
2000, is granted, to the extent discussed herein.
36. It is further ordered that the petition for reconsideration of
the South Dakota Independent Telephone Coalition, filed on September 5,
2000, is granted in part and denied in part, to the extent discussed
herein.
37. It is further ordered that part 54 of the Commission's rules,
is amended as set forth, effective August 15, 2003.
38. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Order, including the Final Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects in 47 CFR Part 54
Reporting and recordkeeping requirements, Telecommunications,
Telephone.
Federal Communications Commission.
Ruth A. Dancey,
Special Assistant to the Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 54 as follows:
PART 54--UNIVERSAL SERVICE
0
1. The authority citations continue to read as follows:
Authority: 47 U.S.C. 1, 4(i), 201, 205, 214, and 254 unless
otherwise noted.
0
2. Amend Sec. 54.400 by revising paragraph (e) and the note to
paragraph (e) to read as follows:
Sec. 54.400 Terms and definitions.
* * * * *
(e) Eligible resident of Tribal lands. An ``eligible resident of
Tribal lands'' is a ``qualifying low-income consumer,'' as defined in
paragraph (a) of this section, living on or near a reservation. A
``reservation'' is defined as any federally recognized Indian tribe's
reservation,
[[Page 41942]]
pueblo, or colony, including former reservations in Oklahoma, Alaska
Native regions established pursuant to the Alaska Native Claims
Settlement Act (85 Stat. 688), and Indian allotments. ``Near
reservation'' is defined as those areas or communities adjacent or
contiguous to reservations which are designated by the Department of
Interior's Commission of Indian Affairs upon recommendation of the
local Bureau of Indian Affairs Superintendent, which recommendation
shall be based upon consultation with the tribal governing body of
those reservations, as locales appropriate for the extension of
financial assistance and/or social services, on the basis of such
general criteria as: Number of Indian people native to the reservation
residing in the area; a written designation by the tribal governing
body that members of their tribe and family members who are Indian
residing in the area, are socially, culturally and economically
affiliated with their tribe and reservation; geographical proximity of
the area to the reservation, and administrative feasibility of
providing an adequate level of services to the area.
Note to paragraph (e): The Commission stayed implementation of
paragraph (e) as applied to qualifying low-income consumers living
``near reservations'' on August 31, 2000 (15 FCC Rcd 17112).
0
3. Amend Sec. 54.409 by revising the third sentence of paragraph (a),
and the first and third sentence of paragraph (c) to read as follows:
Sec. 54.409 Consumer qualification for Lifeline.
(a) * * * A state containing geographic areas included in the
definition of ``reservation'' and ``near reservation,'' as defined in
Sec. 54.400(e), must ensure that its qualification criteria are
reasonably designed to apply to low-income individuals living in such
areas.
* * * * *
(c) A consumer that lives on a reservation or near a reservation,
but does not meet the qualifications for Lifeline specified in
paragraphs (a) and (b) of this section, nonetheless shall be a
``qualifying low-income consumer'' as defined in Sec. 54.400(a) and
thus an ``eligible resident of Tribal lands'' as defined in Sec.
54.400(e) and shall qualify to receive Tiers One, Two, and Four
Lifeline service if the individual participates in one of the following
federal assistance programs: Bureau of Indian Affairs general
assistance; Tribally administered Temporary Assistance for Needy
Families; Head Start (only those meeting its income qualifying
standard); or National School Lunch Program's free lunch program. * * *
To receive Lifeline support under this paragraph for the eligible
resident of Tribal lands, the eligible telecommunications carrier
offering the Lifeline service to such consumer must obtain the
consumer's signature on a document certifying under penalty of perjury
that the consumer receives benefits from at least one of the programs
mentioned in this paragraph or paragraph (b) of this section, and lives
on or near a reservation, as defined in Sec. 54.400(e). * * *
[FR Doc. 03-17567 Filed 7-15-03; 8:45 am]
BILLING CODE 6712-01-P