Federal Communications Commission DA 14-1722

Before the

Federal Communications Commission

Washington, D.C. 20554

In the Matter of
Telecommunications Carriers Eligible for Universal Service Support
Petition of Buffalo-Lake Erie Wireless Systems Co. LLC d/b/a Blue Wireless for Designation as a Low-Income Eligible Telecommunications Carrier in the State of New York
Petition of SI Wireless, LLC for Limited Designation as an Eligible Telecommunications Carrier in the State of Tennessee / )
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ORDER

Adopted: November 26, 2014 Released: November 26, 2014

By the Chief, Wireline Competition Bureau:

I.  INTRODUCTION

1.  In this order, the Wireline Competition Bureau (Bureau) conditionally designates Buffalo-Lake Erie Wireless Systems Co., L.L.C. d/b/a Blue Wireless (Blue Wireless) as a limited eligible telecommunications carrier (ETC), eligible only to receive Lifeline support in its licensed service area in the state of New York, including the Tribal lands of the Allegany Indian Reservation and the Cattaraugus Indian Reservation (Tribal areas); and we conditionally designate SI Wireless, LLC (SI Wireless) as a limited ETC, eligible only to receive Lifeline support in its licensed service area in the state of Tennessee.[1]

II.  BACKGROUND

A.  The Act

  1. Section 254(e) of the Communications Act of 1934, as amended (the Act), provides that “only an eligible telecommunications carrier designated under section 214(e) shall be eligible to receive specific federal universal service support.”[2] Pursuant to section 214(e)(1)(A) and (B), a common carrier designated as an ETC must offer the services supported by the federal universal service support mechanisms either using its own facilities or a combination of its own facilities and resale of another carrier’s services throughout its designated service area and must advertise the availability and charges for those services.[3]

3.  Section 214(e)(2) of the Act gives state commissions the primary responsibility for designating ETCs in their states.[4] Section 214(e)(6) directs the Federal Communications Commission (Commission), upon request, to designate as an ETC “a common carrier providing telephone exchange service and exchange access that is not subject to the jurisdiction of a state commission.”[5] The Commission has established a framework for determining whether a state commission or the Commission itself has jurisdiction to designate ETCs on Tribal lands.[6] First, a carrier serving Tribal lands must petition the FCC for a determination on whether the state has jurisdiction over the carrier.[7] The Commission then determines whether the carrier is subject to the jurisdiction of a state commission or whether it is subject to a Tribal authority given the Tribal interests involved. In the latter case, the Commission has jurisdiction to designate the carrier as an ETC[8] and will proceed to consider the merits of the carrier’s petition for designation.[9]

4.  Under section 214(e)(6), the Commission may, with respect to an area served by a rural telephone company, and shall, in all other cases, designate more than one common carrier as an ETC for a designated service area, consistent with the public interest, convenience, and necessity, so long as the requesting carrier meets the requirements of section 214(e)(1).[10] Before designating an additional ETC for an area served by a rural telephone company, the Commission must determine that the designation is in the public interest.[11] The Bureau has delegated authority to consider ETC designation requests.

B.  Commission Requirements for ETC Designation

5.  A petitioner seeking ETC designation from the Commission must file a petition providing the following: (1) a certification and brief statement of supporting facts demonstrating that the petitioner is not subject to the jurisdiction of a state commission; (2) a certification that the petitioner offers all services designated for support by the Commission pursuant to section 254(c) of the Act; (3) a certification that the petitioner offers the supported services either using its own facilities or a combination of its own facilities and resale of another carrier’s services; (4) a description of how the petitioner advertises the availability of the supported services and the charges therefor using media of general distribution; (5) if the petitioner is not a rural telephone company, a detailed description of the geographic service area for which it requests to be designated as an ETC from the Commission; and (6) a certification that neither the petitioner, nor any party to the application is subject to a denial of federal benefits pursuant to the Anti-Drug Abuse Act of 1988.[12]

6.  In addition, the Commission’s rules require that in order to be designated as an ETC, an applicant must: (1) certify that it will comply with the service requirements applicable to the support that it receives; (2) demonstrate its ability to remain functional in emergency situations; (3) demonstrate that it will satisfy applicable consumer protection and service quality standards; (4) demonstrate that it is financially and technically capable of providing the Lifeline service; and (5) submit information describing the terms and conditions of any voice telephony plans offered to Lifeline subscribers, including details on the number of minutes provided as part of the plan, additional charges, if any, for toll calls, and rates for each such plan.[13]

  1. Prior to designating an ETC pursuant to section 214(e)(6), the Commission must determine whether such designation is in the public interest.[14] In determining the public interest, the Commission historically has considered the benefits of increased consumer choice and the unique advantages and disadvantages of the applicant’s service offering.[15]

C.  Federal Universal Service Lifeline Support

  1. The federal universal service Lifeline program is designed to reduce the monthly cost of telecommunications service for qualifying consumers. The Lifeline program reimburses ETCs for providing qualifying low-income consumers with discounts of $9.25 off of the monthly cost of their telephone service.[16] The Lifeline program provides additional reimbursement to ETCs for providing eligible residents of Tribal lands with discounts of up to an additional $25.00 off the monthly cost of their telephone service.[17]

D.  Petitions

  1. Blue Wireless Petition. Blue Wireless filed the instant petition seeking designation as an ETC, eligible to receive universal service Lifeline support for its service area in the state of New York, including the Tribal lands of the Allegany Indian Reservation and the Cattaraugus Indian Reservation.[18] Blue Wireless states that it is a facilities-based, regional commercial mobile radio service (CMRS).[19] Blue Wireless maintains that it satisfies all the statutory and regulatory requirements for designation as a ETC.[20]
  2. SI Wireless Petition. In its petition, SI Wireless seeks designation as an ETC, eligible to receive universal service Lifeline support for its licensed service area in Tennessee.[21] SI Wireless states that it is a facilities-based CMRS provider.[22] It maintains that it satisfies all the statutory and regulatory requirements for designation as a limited ETC in these areas.[23]

III.  DISCUSSION

11.  As discussed below, we find that Blue Wireless and SI Wireless, both facilities-based providers, have satisfied the Commission’s requirements to be designated as limited ETCs, eligible only to receive Lifeline support pursuant to the terms of this order. The limited ETC designations are conditioned on petitioners’ compliance with the Commission’s rules and the representations and commitments made in their petitions, as set forth in this order.

A.  Commission Authority to Perform the ETC Designations

  1. An applicant seeking designation from the Commission must provide a certification and a brief statement of supporting facts demonstrating that it is not subject to the jurisdiction of a state commission.[24] Blue Wireless seeks ETC designation to service Lifeline-eligible customers in the state of New York, including the Allegany Indian Reservation and the Cattaraugus Indian Reservation.[25] Its petition includes an affirmative statement for the New York Department of Public Service (New York Commission) providing that the New York Commission lacks authority to perform ETC designations for wireless carriers.[26] Blue Wireless states that it contemporaneously served the Tribal government of the Allegany Indian Reservation and the Cattaraugus Indian Reservation with its petition.[27] Additionally, no commission or authority contested this Commission’s authority to consider Blue Wireless’ petition.[28] Therefore, we conclude that the Commission may consider the petition on its merits.
  2. In its petition, SI Wireless includes a statement of supporting facts and a certification from the Tennessee Regulatory Authority (Tennessee Commission), providing that the state commission lacks jurisdiction to perform the requested ETC designation and that the Commission has authority to consider the petition under section 214(e)(6) of the Act.[29] Thus, we find that SI Wireless has demonstrated that it is not subject to the jurisdiction of the Tennessee Commission and this Commission has authority to perform the requested ETC designation.

B.  Eligibility Requirements

  1. Offering the Services Designated for Support. Applicants for ETC designation must certify that they offer all of the services designated for support by the Commission pursuant to section 254(c) of the Act.[30] The petitioners state that they provide the services and functionalities of section 254(c) as enumerated in section 54.101(a) of the Commission’s rules throughout their licensed service areas.[31] The petitioners have demonstrated through their filings and certifications that they now offer or will offer upon designation as a limited ETC, the voice telephony services supported by the Lifeline program.[32]
  2. Offering the Supported Services Using a Carrier’s Own Facilities. Applicants for ETC designation must certify that they will offer the supported services either using their own facilities or a combination of their own facilities and the resale of another carrier’s services.[33] Blue Wireless states that it is a facilities-based wireless telecommunications carrier with its own switching, cell sites, associated telecommunications facilities throughout its proposed service area and it will use its own network facilities to provide Lifeline service in the requested service area.[34] SI Wireless states that it will provide the supported services through a combination of its own facilities (its existing cellular network infrastructure consisting of switching, trucking, cell sites and network equipment) and resale.[35] Petitioners have demonstrated through their filings and certifications that they offer, or will offer upon designation as an ETC, the supported service using either their own facilities or a combination of their own facilities and resale of another carrier’s services.
  3. Advertising Supported Services. Applicants for ETC designation must advertise the availability of the supported services and the charges thereof using media of general distribution and provide a description of how they will do so.[36] Additionally, Commission rules require ETCs to explain in their marketing materials that 1) Lifeline service is a government benefit, 2) the individual must be eligible to receive the benefit, and 3) the individual may receive no more than one benefit at a time from the program.[37] The petitioners have committed to advertise the availability of the supported services using media of general distribution.[38] Petitioners have also committed to advertising and promoting the availability of Lifeline services in a manner reasonably designed to reach those likely to qualify for Lifeline.[39] Petitioners have demonstrated their commitment to comply with the Commission rules regarding marketing of Lifeline service.

C.  Additional Obligations of Federally Designated ETCs

  1. Compliance with Applicable Service Requirements. Consistent with the Commission’s rules, Petitioners have certified that they will comply with all service requirements applicable to the support they receive. [40] Petitioners have demonstrated their commitment to comply with the Commission’s Lifeline rules, specifically the rules regarding consumer enrollment and certification of eligibility.
  2. Ability to Remain Functional in Emergency Situations. Applicants for ETC designation must demonstrate their ability to remain functional in emergency situations.[41] Blue Wireless states that it has the ability to remain functional in emergency situations, has back-up power sufficient to ensure functionality in the designated service area without an external power source, is able to re-route traffic around damaged facilities, and is capable of managing traffic spikes resulting from emergency situations.[42] We find that Blue Wireless has demonstrated its ability to remain function in emergency situations.
  3. SI Wireless states that it will be able to remain functional in emergency situations.[43] Specifically, SI Wireless states that it will 1) have adequate amounts of backup power to ensure functionality without an external power source, 2) be able to reroute traffic between switch and hub and 3) be capable of managing traffic spikes resulting from emergency situations.[44] We find that SI Wireless has demonstrated its ability to remain functional in emergency situations.
  4. Satisfaction of Applicable Consumer Protection and Service Quality Standards. Applicants for ETC designation must demonstrate that they will satisfy applicable consumer protection and service quality standards.[45] The petitioners have committed to providing applicable consumer protection and service quality standards by committing to abide by the current CTIA Consumer Code for Wireless Service as well as any subsequent revisions and amendments.[46]
  5. Financial and Technical Capability. Applicants for ETC designation must demonstrate that they are financially and technically capable of providing Lifeline supported services.[47] Blue Wireless states that it has provided service since 2004 and has a long history of providing service to non-Lifeline consumers.[48] It states that it does not intend to rely exclusively on Universal Service Fund (USF) disbursements and that it receives revenue from several non-USF sources.[49] Blue Wireless also states that it has not been subject to any Commission enforcement action or ETC revocation proceedings in any state.[50] As a result, we find that Blue Wireless is financially and technically capable of providing Lifeline supported services.
  6. SI Wireless states that it is a facilities-based wireless carrier formed in 2009 by a partnership of rural independent telephone companies.[51] SI Wireless states that it does not intend to rely exclusively on USF disbursements to operate its business, and it has access to a line of credit and resources of private investors in other to operate its business on a daily basis.[52] SI Wireless states that it has not been subject to enforcement action at the Commission or in any state and has not had any of its ETC designations revoked.[53] We find that SI Wireless is financially and technically capable of providing Lifeline supported services.
  7. Information Regarding the Terms and Conditions of Lifeline Plans. Applicants for ETC designation must submit information regarding the terms and conditions of any voice telephony plans they offer to Lifeline subscribers.[54] Blue Wireless states that its Lifeline plan offerings include a voice plan for $9.25 (free to the consumer after application of the discount) which includes 500 voice minutes and 500 text messages.[55] Blue Wireless states that its Lifeline customers will also have access to a variety of other standard features at no additional charge, including voicemail, caller identification and call-waiting services.[56] Additionally, it states that in the Tribal areas, it will make available its unlimited talk, text and data plan at no charge to eligible Tribal land residents.[57]
  8. SI Wireless states it allows Lifeline subscribers to apply the Lifeline discount to all of the plans that it offers.[58] SI Wireless provides that its least expensive service plan is a voice plan for $29.99, which includes unlimited mobile-to-mobile minutes and 75 weekday mobile-to-landline minutes per month.[59] SI Wireless represents that its Lifeline customers will also have access to a variety of other standard features at no additional charge, including voicemail, caller identification and call-waiting services.[60]
  9. Anti-Drug Abuse Act Certification.