[Federal Register Volume 64, Number 121 (Thursday, June 24, 1999)]
[Rules and Regulations]
[Pages 33785-33788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16181]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[CC Docket Nos. 96-45 and 97-21; FCC 99-49]
Changes to the Board of Directors of the National Exchange
Carrier Association, Inc., Federal-State Joint Board on Universal
Service
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this document, we clarify certain portions of the
Commission's funding priority rules for the schools and libraries
universal service support mechanism to remove any ambiguity that may
exist in the application of such rules. In this document, we also
reconsider, on our own motion, the Commission's rule that prohibits the
disbursement of funds during the pendency of an appeal of a decision
issued by the Administrator.
DATES: June 24, 1999.
FOR FURTHER INFORMATION CONTACT: Sharon Webber, Attorney, Common
Carrier Bureau, Accounting Policy Division, (202) 418-7400.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
document released on May 28, 1999. 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, S.W.,
Washington, D.C., 20554.
I. Introduction
1. In this Order, we clarify certain portions of the Commission's
funding priority rules for the schools and libraries universal service
support mechanism to remove any ambiguity that may exist in the
application of such rules. Specifically, we clarify that, when a filing
window is in effect, and demand exceeds total authorized support, the
Administrator of the universal service support mechanisms (the
Universal Service Administrative Company or USAC), shall allocate funds
for discounts to schools and libraries for internal connections
beginning with those applicants at the highest discount level, i.e.,
ninety percent, and to the extent funds remain, continue to allocate
funds for discounts to applicants at each descending single discount
percentage.
2. In this Order, we also reconsider, on our own motion, the
Commission's rule that prohibits the disbursement of funds during the
pendency of an appeal of a decision issued by the Administrator. We
find that, if the appeal relates to a request for additional support by
the applicant or involves a challenge by a third party to only a
portion of the approved support, and the application is not otherwise
the subject of an appeal, the Administrator may disburse, during the
pendency of the appeal, those funds that have been approved by the
Administrator.
II. Rules of Funding Priority
3. In the Fifth Reconsideration Order, 63 FR 43088 (August 12,
1998), the Commission adopted new rules of funding priority that would
apply when a filing window is in effect and demand exceeds total
authorized support. In establishing these rules of priority, the
Commission sought to ensure that funds are directed to the most
economically disadvantaged schools and libraries and that every
eligible school and library that filed within the window would receive
some assistance. Consistent with these goals, the rules of priority
provide that requests for telecommunications services and Internet
access for all discount categories shall receive first priority for the
available funding (priority one services). The remaining funds are
allocated to requests for support for internal connections, beginning
with the most economically disadvantaged schools and libraries, as
determined by the schools and libraries discount matrix, i.e., schools
and libraries eligible for a ninety percent discount. To the extent
funds remain, the rules provide that the Administrator shall allocate
funds to the requests for support for internal connections submitted by
schools and libraries eligible for an eighty percent discount, then for
a seventy percent discount, and shall continue committing funds for
internal connections in the same manner to the applicants at each
descending discount level until there are no funds remaining. The rules
further provide that, if the remaining funds are not sufficient to
support all funding requests within a particular discount level, the
Administrator shall allocate the total amount of remaining support on a
pro rata basis to that particular discount level.
4. Although the Commission's rules prioritize funding requests on
the basis of broad discount categories, e.g., ninety percent or eighty
percent, the Commission's rules also specifically recognize that not
all discounts calculated under the schools and libraries support
mechanism will fall within these broad discount categories. In the
Fourth Reconsideration Order, 63 FR 2093 (January 13, 1998), the
Commission revised the rules regarding how to calculate the appropriate
discount level when schools and libraries aggregate their demand with
others to create a consortium. The Commission determined, inter alia,
that, for services that are shared by two or more schools, libraries,
or consortia members, i.e., ``shared services,'' the discount level
should be calculated by averaging the applicable discounts of all
member schools and libraries. As a result, the discount levels for
``shared service'' requests, which typically are internal connection
requests, are single discount level percentages, e.g., eighty-nine
percent, eighty-eight percent, and so on.
5. While the Commission's funding priority rules do not
specifically address the single discount percentage levels associated
with ``shared service'' requests, the rules on ``shared services'' and
the funding priority rules must be read in concert. We clarify,
therefore, that, when sufficient funds are not available to fund all
internal connection requests, the Administrator shall allocate funds
for discounts to schools and libraries beginning with those applicants
at the ninety percent discount level and, to the extent funds remain,
continue to allocate funds for discounts to applicants at each
descending single discount percentage, e.g., eighty-nine percent,
eighty-eight percent, and so on. We believe that this method of
allocating funds is consistent with the Commission's goal of ensuring
that support for internal connections is directed first toward the most
economically disadvantaged schools. We also note that allocating funds
at each descending discount level will enable the Administrator to
distribute funds sooner than it could if it were required to determine
the pro rata amount for the entire discount category before
distributing support. We add a Note to section 54.507(g)(1)(iii) to
reflect the clarification made in this Order. We also clarify that, to
the extent sufficient funds do not exist to fund all requests within a
single discount percentage, the Administrator shall allocate the
[[Page 33786]]
remaining support on a pro rata basis over that single discount
percentage level, as provided in section 54.505(g)(1)(iv) of the
Commission's rules.
III. Disbursement of Funding During Pendency of a Request for
Review of an Administrator Decision
6. The Commission's rules provide that, during the pendency of a
request for review of a decision by the Administrator, a service
provider shall not be reimbursed for the provision of discounted
services under the schools and libraries or rural health care support
mechanisms, or receive support under the high cost and low income
support mechanism, until a final decision has been issued either by the
Administrator or by the Commission. In adopting this rule, we reasoned
that withholding support during the pendency of an appeal would reduce
the likelihood that support is disbursed in error. We did not intend,
however, to require that funds be withheld where an applicant claims on
appeal that it was eligible for more support than that which was
approved by the Administrator or where a third party challenges only a
portion of the support approved by the Administrator. In such a case,
assuming the application is not otherwise the subject of an appeal,
there is no reason to withhold the disbursement of those funds that the
Administrator has approved. Moreover, we believe that withholding funds
under such circumstances might also have the unintended result of
discouraging applicants from filing legitimate appeals. Such a result
would undermine one function of our appeal procedures, which is to help
ensure that the universal service support mechanisms are operating
consistent with Commission rules and policies. Accordingly, we find
that, where a pending appeal involves a request for additional support
or a third party challenge to only a portion of the approved support,
and the application is not otherwise the subject of an appeal, the
Administrator may disburse, during the pendency of that appeal, the
unchallenged portion of the approved support. Accordingly, section
54.725 of the Commission's rules is revised.
IV. Effective Date of Rules
7. In this Order, we revise section 54.725 of the Commission's
rules to provide that, where an applicant seeks review of a decision of
the Administrator on the grounds that the applicant was eligible for
additional support or a third party challenges only a portion of the
approved support, and the application is not otherwise the subject of
an appeal, the Administrator may disburse the funds that it has
approved. Some applicants already have filed appeals seeking additional
support, but, under our current rules, they are unable to receive the
support that the Administrator has approved. Receipt of support is
particularly crucial with regard to internal connections in light of
the Commission's requirement that applicants complete implementation of
their internal connections by a date certain for this funding year. To
ensure that the disbursement of support to these applicants is not
further delayed, this revised rule must take effect upon publication in
the Federal Register. We therefore find good cause to depart in the
manner described above from the general requirement of 5 U.S.C. 553(d)
that final rules take effect not less than thirty (30) days after their
publication in the Federal Register. Accordingly, section 54.725 of the
Commission's rules, as revised below, shall become effective upon
release of this Order.
VI. Regulatory Flexibility Analysis
A. Supplemental Final Regulatory Flexibility Analysis
8. In compliance with the Regulatory Flexibility Act (RFA), this
Supplemental Final Regulatory Flexibility Analysis (SFRFA) supplements
the Final Regulatory Flexibility Analysis (FRFA) included in the
Universal Service Order, 62 FR 32862 (June 17, 1997), and the
Supplemental Final Regulatory Flexibility Analyses in the Fifth
Reconsideration Order and the Eighth Order on Reconsideration, 63 FR
70564 (December 21, 1998), only to the extent that changes to the Order
adopted here on reconsideration require changes in the conclusions
reached in the FRFA in the Universal Service Order and the Supplemental
Final Regulatory Flexibility Analyses in the Fifth Reconsideration
Order and Eighth Order on Reconsideration. This FRFA was preceded by an
Initial Regulatory Flexibility Analysis (IRFA) incorporated in the
Notice of Proposed Rulemaking and Order Establishing the Joint Board
(NPRM), prepared in connection with the Recommended Decision, which
sought written public comment on the proposals in the NPRM and the
Recommended Decision.
9. To the extent that any statement contained in this Supplemental
Final Regulatory Flexibility Analysis is perceived as creating
ambiguity with respect to our rules or statements made in sections of
this Order, the rules and statements set forth in those sections shall
be controlling.
1. Need for and Objectives of This Report and Order
10. The Commission is required by section 254 of the Act to
promulgate rules to implement promptly the universal service provisions
of section 254. On May 8, 1997, the Commission adopted rules intended,
inter alia, to reform our system of universal service support
mechanisms so that universal service is preserved and advanced as
markets move toward competition. In this Order, we clarify one aspect
of those rules and reconsider another aspect of those rules. First, we
clarify that, when a filing window is in effect, and demand exceeds
total authorized support, the Administrator shall allocate funds for
discounts to schools and libraries for internal connections beginning
with those applicants at the highest discount level, i.e., ninety
percent, and to the extent funds remain, continue to allocate funds for
discounts to applicants at each descending single discount percentage.
Second, we find that, if an appeal of a decision by the Administrator
relates to a request for additional support by the applicant or
involves a challenge by a third party to only a portion of the approved
support, and the application is not otherwise the subject of an appeal,
the Administrator may disburse, during the pendency of the appeal,
those funds that have been approved by the Administrator.
2. Summary and Analysis of the Significant Issues Raised by Public
Comments in Response to the IRFA
11. In this Order, the Commission clarifies certain portions of the
Commission's funding priority rules for the schools and libraries
universal service support mechanism to remove any ambiguity that may
exist in the application of such rules. In doing so, the Commission
affirms similar guidance that was provided by the Common Carrier Bureau
to the Schools and Libraries Division of USAC. In this Order, the
Commission also reconsiders, on its own motion, the rule that prohibits
the disbursement of funds during the pendency of an appeal from a
decision of the Administrator. The Order modifies the rule to provide
that, where a pending appeal involves a request for additional support
or a third party challenge to only a portion of the approved support,
and the application is not otherwise the subject of an appeal, the
Administrator may disburse, during the pendency of that appeal, the
funds that it has approved.
[[Page 33787]]
3. Description and Estimates of the Number of Small Entities to Which
the Rules Adopted in This Order Will Apply
12. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one which: (1) is independently owned
and operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA). A small organization is generally ``any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.'' Nationwide, as of 1992, there were
approximately 275,801 small organizations. ``Small governmental
jurisdiction'' generally means ``governments of cities, counties,
towns, townships, villages, school districts, or special districts,
with a population of less than 50,000.'' As of 1992, there were
approximately 85,006 such jurisdictions in the United States. This
number includes 38,978 counties, cities, and towns; of these, 37,566,
or 96 percent, have populations of fewer than 50,000. The Census Bureau
estimates that this ratio is approximately accurate for all
governmental entities. Thus, of the 85,006 governmental entities, we
estimate that 81,600 (91 percent) are small entities.
13. As noted in the FRFA at paragraphs 890-925 of the Universal
Service Order, there are a number of small entities that would be
affected by the new universal service rules. The rules adopted in this
Order, however, would affect primarily schools and libraries. Moreover,
because the rules would allow schools and libraries to benefit more
fully from the schools and libraries universal service support
mechanism, would not have a significant impact on these small entities.
We further describe and estimate, however, the number of small
governmental jurisdictions, small businesses, and small organizations
that may potentially be affected by the rules adopted in this Order.
14. The Commission specifically noted in the Universal Service
Order that the SBA defined small elementary and secondary schools and
small libraries as those with under $5 million in annual revenues. The
Commission further estimated that there are fewer than 86,221 public
and 26,093 private schools and fewer than 15,904 libraries that may be
affected by the decisions and rules adopted in the Universal Service
Order. We believe that these same small entities may be affected
potentially by the rules adopted in this Order.
15. In addition, the Commission noted in the Universal Service
Order that neither the Commission nor the SBA has developed a
definition of small, rural health care providers. Section 254(h)(5)(B)
defines the term ``health care provider'' and sets forth the seven
categories of health care providers eligible to receive universal
service support. We estimated that there are fewer than 12,296 health
care providers potentially affected by the rules in the Universal
Service Order. We note that these small entities may potentially be
affected by the rules adopted in this Order.
4. Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements.
Both the clarification and modification to the Commission's rules
that are set forth in this Order relate only to actions that need to be
taken by the Administrator of the universal service support mechanisms.
As a result, we do not anticipate any additional burdens or costs
associated with these proposed rules on any entities, including on
small entities.
5. Steps Taken To Minimize Significant Economic Impact on Small
Entities, and Significant Alternatives Considered.
16. In the FRFA to the Universal Service Order, the Commission
described the steps taken to minimize the significant economic impact
on a substantial number of small entities consistent with stated
objectives associated with the Schools and Libraries section, the Rural
Health Care Provider section, and the Administration section of the
Universal Service Order. As described, our current action to amend our
rules will benefit schools, libraries, and rural health care providers,
by ensuring that funds are allocated first to the neediest schools and
libraries and that schools, libraries, and rural health care providers
will be able to receive any support approved by the Administrator that
is not the subject of an appeal. We believe that these amended rules
fulfill the statutory mandate to enhance access to telecommunications
services for schools, libraries, and rural health care providers, and
fulfill the statutory principle of providing quality services at
``just, reasonable, and affordable rates,'' without imposing
unnecessary burdens on schools, libraries, rural health care providers,
or service providers, including small entities.
17. Report to Congress. The Commission will send a copy of the
Fifth Order on Reconsideration in CC Docket No. 97-21 and Eleventh
Order on Reconsideration in CC Docket No. 96-45 including this FRFA, in
a report to be sent to Congress pursuant to the Small Business
Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C. 801(a)(1)(A).
In addition, the Commission will send a copy of the Fifth Order on
Reconsideration in CC Docket No. 97-21 and Eleventh Order on
Reconsideration in CC Docket No. 96-45 including FRFA, to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
the Fifth Order on Reconsideration in CC Docket No. 97-21 and Eleventh
Order on Reconsideration in CC Docket No. 96-45 and FRFA (or summaries
thereof) will also be published in the Federal Register. See 5 U.S.C.
604(b).
VII. Ordering Clauses
18. Accordingly, it is ordered that, pursuant to the authority
contained in sections 1-4, 201-205, 218-220, 254, 303(r), 403 and 405
of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201-
205, 218-220, 254, 303(r), 403 and 405, section 553 of the
Administrative Procedure Act, 5 U.S.C. 553, and 47 CFR 1.108, the Fifth
Order on Reconsideration in CC Docket No. 97-21 and Eleventh Order on
Reconsideration in CC Docket No. 96-45 are adopted.
19. It is furthered ordered that, pursuant to the authority
contained in sections 1-4, 201-205, 218-220, 254, 303(r), 403 and 405
of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201-
205, 218-220, 254, 303(r), 403 and 405, section 553 of the
Administrative Procedure Act, 5 U.S.C. 553, and 47 CFR 1.108, Part 54
of the Commission's rules, is amended.
20. It is further ordered that, if the Administrator determines
that sufficient funds are available to provide support for all priority
one service appeals that may be granted for the first funding year, the
Administrator may allocate support immediately to such appeals.
21. It is furthered ordered that, to the extent funds remain after
the Administrator has allocated support to all priority one services,
and the Administrator has determined that sufficient funds are
available to allocate
[[Page 33788]]
support to all internal connection appeals down to the seventy percent
discount level, the Administrator may allocate support immediately to
such internal connection appeals that may be granted.
22. It is furthered ordered that, because the Commission has found
good cause, this Order and 47 CFR 54.725, as amended, is effective June
24, 1999.
23. It is further ordered that the Commission's Office of Public
Affairs, Reference Operations Division, shall send a copy of this Fifth
Order on Reconsideration in CC Docket No. 97-21 and Eleventh Order on
Reconsideration in CC Docket No. 96-45, including the Supplemental
Final Regulatory Flexibility Analysis and Initial Regulatory
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 54
Healthcare providers, Libraries, Reporting and recordkeeping
requirements, Schools, Telecommunications, Telephone.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
Rule Changes
Part 54 of Title 47 of the Code of Federal Regulations is amended
to read as follows:
Part 54--UNIVERSAL SERVICE
1. The authority citation for part 54 continues to read as follows:
Authority: 47 U.S.C. 1, 4(i), 201, 205, 214, and 254 unless
otherwise noted.
2. Add a Note to paragraph (g)(1)(iii) to read as follows:
Sec. 54.507 Cap.
* * * * *
(g) * * *
Note to paragraph (g)(l)(iii): To the extent that there are
single discount percentage levels associated with ``shared
services'' under Sec. 54.505(b)(4), the Administrator shall allocate
funds for internal connections beginning at the ninety percent
discount level, then for the eighty-nine percent discount, then for
the eighty-eight percent discount, and shall continue committing
funds for internal connections in the same manner to the applicants
at each descending discount level until there are no funds
remaining.
* * * * *
3. Revise Sec. 54.725 to read as follows:
Sec. 54.725 Universal service disbursements during pendency of a
request for review and Administrator decision.
(a) When a party has sought review of an Administrator decision
under Sec. 54.719(a) through (c) in connection with the schools and
libraries support mechanism or the rural health care support mechanism,
the Administrator shall not reimburse a service provider for the
provision of discounted services until a final decision has been issued
either by the Administrator or by the Federal Communications
Commission; provided, however, that the Administrator may disburse
funds for any amount of support that is not the subject of an appeal.
(b) When a party has sought review of an Administrator decision
under Sec. 54.719(a) through (c) in connection with the high cost and
low income support mechanisms, the Administrator shall not disburse
support to a service provider until a final decision has been issued
either by the Administrator or by the Federal Communications
Commission; provided, however, that the Administrator may disburse
funds for any amount of support that is not the subject of an appeal.
[FR Doc. 99-16181 Filed 6-23-99; 8:45 am]
BILLING CODE 6712-01-P
