Connect America Fund; Developing an Unified Intercarrier Compensation Regime; Lifeline and Link Up, 1637-1640 [2012-349]
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Federal Register / Vol. 77, No. 7 / Wednesday, January 11, 2012 / Rules and Regulations
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approval under the Paperwork
Reduction Act (PRA), 44 U.S.C. 3501 et
seq., nor does it require any special
considerations under Executive Order
12898, entitled Federal Actions to
Address Environmental Justice in
Minority Populations and Low-Income
Populations (59 FR 7629, February 16,
1994). Since tolerances and exemptions
that are established on the basis of a
petition under section 408(d) of FFDCA,
such as the tolerance in this final rule,
do not require the issuance of a
proposed rule, the requirements of the
Regulatory Flexibility Act (RFA) (5
U.S.C. 601 et seq.) do not apply.
This final rule directly regulates
growers, food processors, food handlers,
and food retailers, not States or tribes,
nor does this action alter the
relationships or distribution of power
and responsibilities established by
Congress in the preemption provisions
of section 408(n)(4) of FFDCA. As such,
the Agency has determined that this
action will not have a substantial direct
effect on States or tribal governments,
on the relationship between the national
government and the States or tribal
governments, or on the distribution of
power and responsibilities among the
various levels of government or between
the Federal Government and Indian
tribes. Thus, the Agency has determined
that Executive Order 13132, entitled
Federalism (64 FR 43255, August 10,
1999) and Executive Order 13175,
entitled Consultation and Coordination
with Indian Tribal Governments (65 FR
67249, November 9, 2000) do not apply
to this final rule. In addition, this final
rule does not impose any enforceable
duty or contain any unfunded mandate
as described under Title II of the
Unfunded Mandates Reform Act of 1995
(UMRA) (Pub. L. 104–4).
This action does not involve any
technical standards that would require
Agency consideration of voluntary
consensus standards pursuant to section
12(d) of the National Technology
Transfer and Advancement Act of 1995
(NTTAA), Public Law 104–113, section
12(d) (15 U.S.C. 272 note).
XI. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report to each House of
the Congress and to the Comptroller
General of the United States. EPA will
submit a report containing this rule and
other required information to the U.S.
Senate, the U.S. House of
Representatives, and the Comptroller
General of the United States prior to
publication of this final rule in the
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Federal Register. This final rule is not
a ‘‘major rule’’ as defined by 5 U.S.C.
804(2).
List of Subjects in 40 CFR Part 180
Environmental protection,
Administrative practice and procedure,
Agricultural commodities, Pesticides
and pests, Reporting and recordkeeping
requirements.
Dated: December 15, 2011.
Steven Bradbury,
Director, Office of Pesticide Programs.
Therefore, 40 CFR chapter I is
amended as follows:
PART 180—[AMENDED]
1. The authority citation for part 180
continues to read as follows:
■
Authority: 21 U.S.C. 321(q), 346a and 371.
2. Section 180.1309 is added to
subpart D to read as follows:
■
§ 180.1309 Bacillus subtilis strain CX–
9060; exemption from the requirement of a
tolerance.
An exemption from the requirement
of a tolerance is established for residues
of the microbial pesticide Bacillus
subtilis strain CX–9060, in or on all food
commodities, when applied or used in
accordance with good agricultural
practices.
[FR Doc. 2012–228 Filed 1–10–12; 8:45 am]
BILLING CODE 6560–50–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Parts 20 and 54
[WC Docket Nos. 10–90, 07–135, 05–337,
03–109; GN Docket No. 09–51; CC Docket
Nos. 01–92, 96–45; WT Docket No. 10–208;
FCC 11–189]
Connect America Fund; Developing an
Unified Intercarrier Compensation
Regime; Lifeline and Link Up
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the
Commission amends rules regarding the
attributes of ‘‘voice telephony service’’
to be supported by the Federal universal
service support mechanisms. This
action is necessary to reflect the
evolution of the marketplace and to
limit supported services. The
Commission also waives certain
effective dates so that intercarrier
compensation for non-access traffic
exchanged between Local Exchange
SUMMARY:
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1637
Carriers (LEC) and Commercial Mobile
Radio Service (CMRS) providers
pursuant to an interconnection
agreement in effect as of December 23,
2011, will be subject to a default billand-keep methodology on July 1, 2012,
rather than on December 29, 2011. This
action is necessary to limit marketplace
disruption by delaying bill-and-keep
until carriers are eligible to receive
recovery as part of the transitional
revenue recovery mechanism for this
type of traffic.
DATES: Effective January 11, 2012.
FOR FURTHER INFORMATION CONTACT:
Amy Bender, Wireline Competition
Bureau, (202) 418–1469, or Victoria
Goldberg, Wireline Competition Bureau,
(202) 418–7353, or TTY: (202) 418–
0484.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order on
Reconsideration (Order) in WC Docket
Nos. 10–90, 07–135, 05–337, 03–109,
GN Docket No. 09–51, CC Docket Nos.
01–92, 96–45, WT Docket No. 10–208,
FCC 11–189, released on December 23,
2011. The full text of this document is
available for public inspection during
regular business hours in the FCC
Reference Center, Room CY–A257, 445
12th Street SW., Washington, DC 20554.
1. In this Order, the Commission
modifies on its own motion two aspects
of the USF/ICC Transformation Order,
76 FR 73830, November 18, 2011.
2. In the USF/ICC Transformation
Order, the Commission eliminated its
former list of nine supported services
and amended § 54.101 of the
Commission’s rules to specify that
‘‘voice telephony service’’ is supported
by federal universal service support
mechanisms. The Commission found
this to be a more technologically neutral
approach that focuses on the
functionality offered instead of the
technologies used, while allowing
services to be provided over any
platform. This approach also recognizes
that many of the services enumerated in
the previous rule are universal today
and that the importance of operator
services and directory assistance, in
particular, has declined with changes in
the marketplace. A number of parties
have raised questions about how the
amended rule should be understood to
affect Lifeline-only ETCs and their
compliance with section 214(e)(1)(A) of
the Act, which requires a carrier to
provide supported services using its
own facilities, in whole or in part, in
order to be eligible to receive support.
Several parties have urged the
Commission to take action to ensure
that there is no disruption to the
services currently being provided to
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Federal Register / Vol. 77, No. 7 / Wednesday, January 11, 2012 / Rules and Regulations
millions of eligible Lifeline consumers
by ETCs that have already been
designated based on their provision of
supported services as previously
defined by the Commission.
3. The Commission notes that, in
adopting the new definition of ‘‘voice
telephony’’ in § 54.101, it eliminated
certain services and functionalities from
the list of supported services, consistent
with its findings regarding the evolution
of the marketplace. To more clearly
reflect its intent to specify the attributes
of ‘‘voice telephony’’ in the new
definition, the Commission amends
§ 54.101 to read: ‘‘Services designated
for support. Voice telephony services
shall be supported by federal universal
service support mechanisms. Eligible
voice telephony services must provide
voice grade access to the public
switched network or its functional
equivalent; minutes of use for local
service provided at no additional charge
to end users; access to the emergency
services provided by local government
or other public safety organizations,
such as 911 and enhanced 911, to the
extent the local government in an
eligible carrier’s service area has
implemented 911 or enhanced 911
systems; and toll limitation for
qualifying low-income consumers (as
described in subpart E of this part).’’
4. Additionally, the Commission
affirms that only carriers that provide
‘‘voice telephony’’ as defined under
§ 54.101(a) as amended using their own
facilities will be deemed to meet the
requirements of section 214(e)(1). Thus,
a Lifeline-only ETC does not meet the
‘‘own facilities’’ requirement of section
214(e)(1) if its only facilities are those
used to provide functions that are no
longer supported ‘‘voice telephony
service’’ under 47 CFR 54.101, such as
access to operator service or directory
assistance. Therefore, to be in
compliance with the Commission’s
rules, Lifeline-only carriers that seek
ETC designation after the December 29,
2011 effective date of the USF/ICC
Transformation Order, as well as such
carriers that had previously obtained
ETC designation prior to December 29,
2011 on the basis of facilities associated
solely with, for example, access to
operator service or directory assistance,
must either use their own facilities, in
whole or in part, to provide the
supported ‘‘voice telephony service,’’ or
obtain forbearance from the ‘‘own
facilities’’ requirement from the
Commission. As discussed more fully
below, the effective date of this minor
modification to the language in
amended § 54.101 is the date of Federal
Register publication of the Order. To
avoid disruption to consumers of
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previously designated ETCs, however,
the Commission set July 1, 2012 as the
effective date of 47 CFR 54.101 for
Lifeline-only ETCs in the service areas
for which they were designated prior to
December 29, 2011. The Commission
anticipates that it may address the ‘‘own
facilities’’ requirement for Lifeline
providers in the near future in a
subsequent order addressing the
Commission’s Lifeline program. In the
event that this Order is not published in
the Federal Register before December
29, the Commission will consider the
amended rule as adopted in the USF/
ICC Transformation Order suspended
with respect to this limited class of
ETCs, so that the Commission’s actions
in the USF/ICC Transformation Order
do not impact existing state
designations.
5. In the USF/ICC Transformation
Order, the Commission adopted billand-keep as the default intercarrier
compensation methodology for nonaccess traffic exchanged between local
exchange carriers (LECs) and
Commercial Mobile Radio Service
(CMRS) providers. Rather than
implementing a more gradual transition,
the USF/ICC Transformation Order
made the default bill-and-keep
methodology applicable as of the
effective date of the rules (December 29,
2011). This timing reflected the
Commission’s balancing of the benefits
of providing clarity and addressing
arbitrage and, in particular, traffic
pumping, against the apparently small
risk of marketplace disruption from
doing so. There was little, if any,
evidence in the record that there would
be significant harmful effects on any
LECs as a result of this timing. One
factor supporting the Commission’s
conclusion with regard to incumbent
LECs was the understanding that such
carriers would be eligible to receive
recovery as part of the transitional
recovery mechanism for reductions in
net reciprocal compensation payments.
Another factor was adoption of an
interim rule that limited the
responsibility for transport costs
applicable to non-access traffic
exchanged between CMRS providers
and rural, rate-of-return incumbent
LECs.
6. In the Order the Commission
reconsiders the balancing of benefits
and burdens in this context. The
Commission finds it more appropriate to
make the default bill-and-keep
compensation methodology for LEC–
CMRS non-access traffic consistent with
the start of the transitional intercarrier
compensation recovery mechanism for
carriers that were exchanging LEC–
CMRS traffic under existing
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interconnection agreements prior to the
adoption date of the USF/ICC
Transformation Order. Under the
recovery rules as adopted in the USF/
ICC Transformation Order, the
transitional recovery mechanism does
not begin until July 1, 2012, and it is
unclear whether incumbent LECs will
be eligible to receive recovery for
reductions in revenues from December
29, 2011 through July 1, 2012. The
Commission had anticipated carriers
would continue to receive payment at
the rates in place under existing
interconnection agreements while they
were being renegotiated. However, the
Commission believes that this
assumption is over-inclusive and not
entirely accurate since interconnection
agreements are negotiated between two
parties and contain different terms and
conditions for implementing change of
law provisions—indeed, some may
relate back to the effective date of the
new rule, rather than when the
renegotiated agreement is in place.
Moreover, the Commission believed
that, as a general matter, LEC–CMRS
agreements contained rates at $0.0007 or
less as their reciprocal compensation
rate. Parties indicate, however, that
many existing LEC–CMRS agreements
reflect reciprocal compensation rates
‘‘much higher than $0.0007.’’ Thus, the
supplemental record suggests that the
Commission did not accurately assess
the impact of its decision to
immediately move to bill-and-keep for
all LECs for this category of traffic.
7. Enabling carriers that have effective
interconnection agreements governing
the exchange of LEC–CMRS non-access
traffic as of the adoption date of the
USF/ICC Transformation Order to
continue to exchange traffic and receive
compensation pursuant to those existing
agreements until July 1, 2012 will
minimize market disruption, while
enabling carriers to begin the process of
revising such agreements immediately.
In contrast, carriers exchanging LEC–
CMRS non-access traffic without an
interconnection agreement do not
receive such compensation today, so the
Commission finds no likelihood of
marketplace disruption that would
support reconsideration of its decision
in that context. Accordingly, intercarrier
compensation for non-access traffic
exchanged between LECs and CMRS
providers pursuant to an
interconnection agreement in effect as of
the adoption date of this Order, will be
subject to a default bill-and-keep
methodology on July 1, 2012 rather than
on December 29, 2011. In the event that
the Order is not published in the
Federal Register before December 29,
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Federal Register / Vol. 77, No. 7 / Wednesday, January 11, 2012 / Rules and Regulations
2011, the Commission also finds good
cause to waive these requirements to the
extent necessary to preserve the status
quo until such time that the Order goes
into effect. The Commission may waive
its rules for good cause shown. The
Commission finds that waiver, if needed
to preserve the status quo for a limited
period consistent with the Order, will
serve the public interest by protecting
against the potential marketplace
disruption, described above, that the
Commission sought to avoid through the
intercarrier compensation rule changes
adopted in this Order. The Commission
expects that, unless parties mutually
agree otherwise, traffic will continue to
be exchanged pursuant to existing
interconnection agreements between the
adoption date of the Order and June 30,
2012. The Commission cautions that
parties should not use the Order as an
opportunity to abuse the distinction
between traffic subject to an
interconnection agreement as of the
adoption date of the USF/ICC
Transformation Order and traffic not
subject to an interconnection agreement
in order to engage in arbitrage to avoid
payment of intercarrier compensation
charges. Indeed, the Commission will be
monitoring the situation and will not
hesitate to take action if it appears any
such arbitrage is occurring.
8. The Commission strongly urges all
parties with such agreements to
immediately begin preparations for the
July 1 effective date of the transitional
recovery mechanism, including by
commencing discussions regarding
change-of-law provisions, if applicable.
LECs should not view the Order as an
excuse for delaying negotiations or
deferring preparations. To ensure that
the change the Commission adopts does
not create incentives to engage in such
delay, and consistent with the balance
of interests discussed above, the
Commission provides that, unless
parties mutually agree otherwise,
starting on July 1, 2012, compensation
for traffic exchanged during the renegotiation of interconnection
agreements with change-of-law
provisions will be subject to true-up at
the level of reciprocal compensation for
non-access LEC–CMRS traffic
established in the resulting
interconnection agreement, whether the
default of bill-and-keep or other pricing
negotiated by the carriers. The
Commission finds that this limited
departure from the Commission’s prior
determination not to override
compensation arrangements in existing
contracts is justified to ensure that the
onset of bill-and-keep is not unilaterally
delayed beyond the intended transition
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period due to delayed or extended renegotiations under contractual changeof-law provisions. When the
Commission set an immediate effective
date for a default bill-and-keep
methodology for this traffic in the USF/
ICC Transformation Order, it found that
re-negotiation under such provisions
would help provide a reasonable
transition for LECs with such
agreements. Now, the change in the
effective date for bill-and-keep provides
a transition for non-access LEC–CMRS
traffic to mitigate marketplace
disruption for carriers for which these
revenues may be significant today.
Given that change, the Commission
finds that this measure is necessary to
maintain the balance of benefits to
consumers and carriers from a default
bill-and-keep methodology that the
Commission intended in the USF/ICC
Transformation Order. Further, because
of the limited nature of this
modification, the Commission finds that
it will not have the harmful effects that
concerned the Commission in adopting
its general policy on existing
agreements. The Commission also finds
that adoption of this limited measure
will have minimal adverse impact on
carriers.
9. Regulatory Flexibility Certification.
The Regulatory Flexibility Act (RFA)
requires that agencies prepare a
regulatory flexibility analysis for noticeand-comment rulemaking proceedings,
unless the agency certifies that ‘‘the rule
will not have a significant economic
impact on a substantial number of small
entities.’’ The Commission certifies that
the rule revisions will not have a
significant economic impact on a
substantial number of small entities,
because the action merely maintains the
status quo for the entities affected. The
Commission will send a copy of the
Order, including such certification, to
the Chief Counsel for Advocacy of the
Small Business Administration.
10. Paperwork Reduction Act
Analysis. This document does not
contain proposed information
collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13. In addition, therefore, it
does not contain any new or modified
‘‘information collection burden for
small business concerns with fewer than
25 employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
11. Congressional Review Act. The
Commission will send a copy of the
Order on Reconsideration in a report to
be sent to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act (‘‘CRA’’).
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1639
12. Effective Date. The Commission
concludes that good cause exists to
make the effective date of the
amendments to rule 47 CFR 54.101
effective immediately upon publication
in the Federal Register, pursuant to
§ 553(d)(3) of the Administrative
Procedure Act. Agencies determining
whether there is good cause to make a
rule revision take effect less than 30
days after Federal Register publication
must balance the necessity for
immediate implementation against
principles of fundamental fairness that
require that all affected persons be
afforded a reasonable time to prepare for
the effective date of a new rule. In this
instance, no ETC will be prejudiced by
the Order being effective immediately
upon publication in the Federal
Register because this action merely
clarifies the intent of the USF/ICC
Transformation Order and, by delaying
the implementation date of the modified
rule, restores the status quo for Lifelineonly ETCs in those states where they
have already been designated that
existed prior to the USF/ICC
Transformation Order for a defined
period of time. This will allow the
Commission the opportunity to take
further action with respect to the ‘‘own
facilities’’ requirement for such
providers in the context of the lowincome program.
13. The Commission also concludes
that good cause exists to make the
revisions to §§ 20.11(e), 51.705(a), and
51.709(c) effective immediately upon
publication in the Federal Register. As
discussed above, allowing the rules
subject to the Order to go into effect on
December 29, 2011 may potentially
result in a significant financial impact
on LECs exchanging non-access LEC–
CMRS traffic pursuant to
interconnection agreements, contrary to
the Commission’s initial assumptions.
Thus, the Commission finds good cause
to make these rule revisions take effect
upon publication in the Federal
Register. Again, no parties will be
prejudiced by this Order being effective
immediately upon publication in the
Federal Register because this action
merely permits LECs and CMRS
providers exchanging non-access traffic
pursuant to an interconnection
agreement to maintain the status quo for
a defined period of time.
List of Subjects
47 CFR Part 20
Communications common carriers,
Commercial mobile radio services,
Interconnection, Intercarrier
compensation.
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Federal Register / Vol. 77, No. 7 / Wednesday, January 11, 2012 / Rules and Regulations
and enhanced 911, to the extent the
local government in an eligible carrier’s
service area has implemented 911 or
enhanced 911 systems; and toll
limitation for qualifying low-income
consumers (as described in subpart E of
this part).
*
*
*
*
*
47 CFR Part 54
Communications common carriers,
Reporting and recordkeeping
requirements, Telecommunications,
Telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR parts 20
and 54 as follows:
PART 20—COMMERCIAL MOBILE
RADIO SERVICES
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2012–349 Filed 1–10–12; 8:45 am]
SUPPLEMENTARY INFORMATION:
BILLING CODE 6712–01–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
1. The authority citation for part 20
continues to read as follows:
■
Authority: 47 U.S.C. 154, 160, 201, 251–
254, 301, 303, 316, and 332 unless otherwise
noted. Section 20.12 is also issued under 47
U.S.C. 1302.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1, 9, 12, 42, and 52
■
2. Section 20.11 is amended by
revising paragraph (e) to read as follows:
[Correction; FAC 2005–55; FAR Case 2010–
016; Item V; Docket 2010–0016, Sequence
1]
§ 20.11 Interconnection to facilities of local
exchange carriers.
RIN 9000–AL94
*
Federal Acquisition Regulation; Public
Access to the Federal Awardee
Performance and Integrity Information
System; Correction
*
*
*
*
(e) An incumbent local exchange
carrier may request interconnection
from a commercial mobile radio service
provider and invoke the negotiation and
arbitration procedures contained in
section 252 of the Act. A commercial
mobile radio service provider receiving
a request for interconnection must
negotiate in good faith and must, if
requested, submit to arbitration by the
state commission.
*
*
*
*
*
PART 54—UNIVERSAL SERVICE
3. The authority citation for part 54
continues to read as follows:
■
Authority: 47 U.S.C. 151, 154(i), 201, 205,
214, 219, 220, 254, 303(r), 403, and 1302
unless otherwise noted.
Subpart B—Services Designated for
Support
4. Section 54.101 is amended by
revising paragraph (a) to read as follows:
■
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§ 54.101 Supported services for rural,
insular and high cost areas.
(a) Services designated for support.
Voice telephony services shall be
supported by federal universal service
support mechanisms. Eligible voice
telephony services must provide voice
grade access to the public switched
network or its functional equivalent;
minutes of use for local service
provided at no additional charge to end
users; access to the emergency services
provided by local government or other
public safety organizations, such as 911
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Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Correction.
AGENCY:
This document contains a
correction to the final rule that was
published in the Federal Register at 77
FR 197 on January 3, 2012. An
applicability date to the rule was
inadvertently omitted.
DATES: The effective date for the rule
published at 77 FR 197 remains January
3, 2012.
Applicability Date: The clause
prescription of this rule applies to
solicitations issued on or after January
17, 2012, and resultant contracts.
With regard to information entered by
the Government into FAPIIS on and
after January 17, 2012—
(1) There will be a 14-calendar-day
delay in the posting to the publicly
available segment of FAPIIS; and
(2) The notification generated when
the Government posts new information
to the contractor’s record will inform
the contractor of the 14-calendar-day
delay and the contractor’s right to
request withdrawal of the posted
information if the contractor asserts that
the information is covered by a
disclosure exemption under the
Freedom of Information Act, as set forth
in FAR 9.105–2(b)(2)(iv).
SUMMARY:
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Mr.
Edward Loeb, Procurement Analyst, at
(202) 501–0650, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–55, FAR
Case 2010–016; Correction.
This
document contains a correction to the
final rule that was published in the
Federal Register at 77 FR 197 on
January 3, 2012, by adding an
applicability date to the rule that was
inadvertently omitted.
DoD, GSA, and NASA adopted as
final, with changes, an interim rule
amending the Federal Acquisition
Regulation (FAR) to implement section
3010 of the Supplemental
Appropriations Act, 2010. Section 3010
requires that the information in the
Federal Awardee Performance and
Integrity Information System (FAPIIS),
excluding past performance reviews,
shall be made publicly available. The
interim rule notified contractors of this
new statutory requirement for public
access to FAPIIS.
The delayed application of the final
rule will allow time for the Government
to complete necessary system changes to
support the 14-day wait period. The
current system was designed to
automatically transfer to the publicly
available segment of FAPIIS all
information posted by the Government
(other than past performance
information). As a result, until the
change is implemented, there will not
be an opportunity for a contractor to
request withholding of the information
before it is posted to the publicly
available segment of FAPIIS. Any
information entered into FAPIIS by the
Government on or after January 17, 2012
(other than past performance
information, which will not transfer to
the publicly available segment of
FAPIIS), will be subject to a 14calendar-day delay before it is
transferred to the publicly available
segment of FAPIIS, regardless of
whether the contract includes the
January 2012 version or the January
2011 version of FAR 52.209–9, Updates
of Publicly Available Information
Regarding Responsibility Matters. This
will allow all contractors opportunity to
assert for the Government’s
consideration, within 7 calendar days of
being posted, that the information is
covered by a disclosure exemption
under the Freedom of Information Act.
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]]>Agencies
[Federal Register Volume 77, Number 7 (Wednesday, January 11, 2012)]
[Rules and Regulations]
[Pages 1637-1640]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-349]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 20 and 54
[WC Docket Nos. 10-90, 07-135, 05-337, 03-109; GN Docket No. 09-51; CC
Docket Nos. 01-92, 96-45; WT Docket No. 10-208; FCC 11-189]
Connect America Fund; Developing an Unified Intercarrier
Compensation Regime; Lifeline and Link Up
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission amends rules regarding the
attributes of ``voice telephony service'' to be supported by the
Federal universal service support mechanisms. This action is necessary
to reflect the evolution of the marketplace and to limit supported
services. The Commission also waives certain effective dates so that
intercarrier compensation for non-access traffic exchanged between
Local Exchange Carriers (LEC) and Commercial Mobile Radio Service
(CMRS) providers pursuant to an interconnection agreement in effect as
of December 23, 2011, will be subject to a default bill-and-keep
methodology on July 1, 2012, rather than on December 29, 2011. This
action is necessary to limit marketplace disruption by delaying bill-
and-keep until carriers are eligible to receive recovery as part of the
transitional revenue recovery mechanism for this type of traffic.
DATES: Effective January 11, 2012.
FOR FURTHER INFORMATION CONTACT: Amy Bender, Wireline Competition
Bureau, (202) 418-1469, or Victoria Goldberg, Wireline Competition
Bureau, (202) 418-7353, or TTY: (202) 418-0484.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
on Reconsideration (Order) in WC Docket Nos. 10-90, 07-135, 05-337, 03-
109, GN Docket No. 09-51, CC Docket Nos. 01-92, 96-45, WT Docket No.
10-208, FCC 11-189, released on December 23, 2011. The full text of
this document is available for public inspection during regular
business hours in the FCC Reference Center, Room CY-A257, 445 12th
Street SW., Washington, DC 20554.
1. In this Order, the Commission modifies on its own motion two
aspects of the USF/ICC Transformation Order, 76 FR 73830, November 18,
2011.
2. In the USF/ICC Transformation Order, the Commission eliminated
its former list of nine supported services and amended Sec. 54.101 of
the Commission's rules to specify that ``voice telephony service'' is
supported by federal universal service support mechanisms. The
Commission found this to be a more technologically neutral approach
that focuses on the functionality offered instead of the technologies
used, while allowing services to be provided over any platform. This
approach also recognizes that many of the services enumerated in the
previous rule are universal today and that the importance of operator
services and directory assistance, in particular, has declined with
changes in the marketplace. A number of parties have raised questions
about how the amended rule should be understood to affect Lifeline-only
ETCs and their compliance with section 214(e)(1)(A) of the Act, which
requires a carrier to provide supported services using its own
facilities, in whole or in part, in order to be eligible to receive
support. Several parties have urged the Commission to take action to
ensure that there is no disruption to the services currently being
provided to
[[Page 1638]]
millions of eligible Lifeline consumers by ETCs that have already been
designated based on their provision of supported services as previously
defined by the Commission.
3. The Commission notes that, in adopting the new definition of
``voice telephony'' in Sec. 54.101, it eliminated certain services and
functionalities from the list of supported services, consistent with
its findings regarding the evolution of the marketplace. To more
clearly reflect its intent to specify the attributes of ``voice
telephony'' in the new definition, the Commission amends Sec. 54.101
to read: ``Services designated for support. Voice telephony services
shall be supported by federal universal service support mechanisms.
Eligible voice telephony services must provide voice grade access to
the public switched network or its functional equivalent; minutes of
use for local service provided at no additional charge to end users;
access to the emergency services provided by local government or other
public safety organizations, such as 911 and enhanced 911, to the
extent the local government in an eligible carrier's service area has
implemented 911 or enhanced 911 systems; and toll limitation for
qualifying low-income consumers (as described in subpart E of this
part).''
4. Additionally, the Commission affirms that only carriers that
provide ``voice telephony'' as defined under Sec. 54.101(a) as amended
using their own facilities will be deemed to meet the requirements of
section 214(e)(1). Thus, a Lifeline-only ETC does not meet the ``own
facilities'' requirement of section 214(e)(1) if its only facilities
are those used to provide functions that are no longer supported
``voice telephony service'' under 47 CFR 54.101, such as access to
operator service or directory assistance. Therefore, to be in
compliance with the Commission's rules, Lifeline-only carriers that
seek ETC designation after the December 29, 2011 effective date of the
USF/ICC Transformation Order, as well as such carriers that had
previously obtained ETC designation prior to December 29, 2011 on the
basis of facilities associated solely with, for example, access to
operator service or directory assistance, must either use their own
facilities, in whole or in part, to provide the supported ``voice
telephony service,'' or obtain forbearance from the ``own facilities''
requirement from the Commission. As discussed more fully below, the
effective date of this minor modification to the language in amended
Sec. 54.101 is the date of Federal Register publication of the Order.
To avoid disruption to consumers of previously designated ETCs,
however, the Commission set July 1, 2012 as the effective date of 47
CFR 54.101 for Lifeline-only ETCs in the service areas for which they
were designated prior to December 29, 2011. The Commission anticipates
that it may address the ``own facilities'' requirement for Lifeline
providers in the near future in a subsequent order addressing the
Commission's Lifeline program. In the event that this Order is not
published in the Federal Register before December 29, the Commission
will consider the amended rule as adopted in the USF/ICC Transformation
Order suspended with respect to this limited class of ETCs, so that the
Commission's actions in the USF/ICC Transformation Order do not impact
existing state designations.
5. In the USF/ICC Transformation Order, the Commission adopted
bill-and-keep as the default intercarrier compensation methodology for
non-access traffic exchanged between local exchange carriers (LECs) and
Commercial Mobile Radio Service (CMRS) providers. Rather than
implementing a more gradual transition, the USF/ICC Transformation
Order made the default bill-and-keep methodology applicable as of the
effective date of the rules (December 29, 2011). This timing reflected
the Commission's balancing of the benefits of providing clarity and
addressing arbitrage and, in particular, traffic pumping, against the
apparently small risk of marketplace disruption from doing so. There
was little, if any, evidence in the record that there would be
significant harmful effects on any LECs as a result of this timing. One
factor supporting the Commission's conclusion with regard to incumbent
LECs was the understanding that such carriers would be eligible to
receive recovery as part of the transitional recovery mechanism for
reductions in net reciprocal compensation payments. Another factor was
adoption of an interim rule that limited the responsibility for
transport costs applicable to non-access traffic exchanged between CMRS
providers and rural, rate-of-return incumbent LECs.
6. In the Order the Commission reconsiders the balancing of
benefits and burdens in this context. The Commission finds it more
appropriate to make the default bill-and-keep compensation methodology
for LEC-CMRS non-access traffic consistent with the start of the
transitional intercarrier compensation recovery mechanism for carriers
that were exchanging LEC-CMRS traffic under existing interconnection
agreements prior to the adoption date of the USF/ICC Transformation
Order. Under the recovery rules as adopted in the USF/ICC
Transformation Order, the transitional recovery mechanism does not
begin until July 1, 2012, and it is unclear whether incumbent LECs will
be eligible to receive recovery for reductions in revenues from
December 29, 2011 through July 1, 2012. The Commission had anticipated
carriers would continue to receive payment at the rates in place under
existing interconnection agreements while they were being renegotiated.
However, the Commission believes that this assumption is over-inclusive
and not entirely accurate since interconnection agreements are
negotiated between two parties and contain different terms and
conditions for implementing change of law provisions--indeed, some may
relate back to the effective date of the new rule, rather than when the
renegotiated agreement is in place. Moreover, the Commission believed
that, as a general matter, LEC-CMRS agreements contained rates at
$0.0007 or less as their reciprocal compensation rate. Parties
indicate, however, that many existing LEC-CMRS agreements reflect
reciprocal compensation rates ``much higher than $0.0007.'' Thus, the
supplemental record suggests that the Commission did not accurately
assess the impact of its decision to immediately move to bill-and-keep
for all LECs for this category of traffic.
7. Enabling carriers that have effective interconnection agreements
governing the exchange of LEC-CMRS non-access traffic as of the
adoption date of the USF/ICC Transformation Order to continue to
exchange traffic and receive compensation pursuant to those existing
agreements until July 1, 2012 will minimize market disruption, while
enabling carriers to begin the process of revising such agreements
immediately. In contrast, carriers exchanging LEC-CMRS non-access
traffic without an interconnection agreement do not receive such
compensation today, so the Commission finds no likelihood of
marketplace disruption that would support reconsideration of its
decision in that context. Accordingly, intercarrier compensation for
non-access traffic exchanged between LECs and CMRS providers pursuant
to an interconnection agreement in effect as of the adoption date of
this Order, will be subject to a default bill-and-keep methodology on
July 1, 2012 rather than on December 29, 2011. In the event that the
Order is not published in the Federal Register before December 29,
[[Page 1639]]
2011, the Commission also finds good cause to waive these requirements
to the extent necessary to preserve the status quo until such time that
the Order goes into effect. The Commission may waive its rules for good
cause shown. The Commission finds that waiver, if needed to preserve
the status quo for a limited period consistent with the Order, will
serve the public interest by protecting against the potential
marketplace disruption, described above, that the Commission sought to
avoid through the intercarrier compensation rule changes adopted in
this Order. The Commission expects that, unless parties mutually agree
otherwise, traffic will continue to be exchanged pursuant to existing
interconnection agreements between the adoption date of the Order and
June 30, 2012. The Commission cautions that parties should not use the
Order as an opportunity to abuse the distinction between traffic
subject to an interconnection agreement as of the adoption date of the
USF/ICC Transformation Order and traffic not subject to an
interconnection agreement in order to engage in arbitrage to avoid
payment of intercarrier compensation charges. Indeed, the Commission
will be monitoring the situation and will not hesitate to take action
if it appears any such arbitrage is occurring.
8. The Commission strongly urges all parties with such agreements
to immediately begin preparations for the July 1 effective date of the
transitional recovery mechanism, including by commencing discussions
regarding change-of-law provisions, if applicable. LECs should not view
the Order as an excuse for delaying negotiations or deferring
preparations. To ensure that the change the Commission adopts does not
create incentives to engage in such delay, and consistent with the
balance of interests discussed above, the Commission provides that,
unless parties mutually agree otherwise, starting on July 1, 2012,
compensation for traffic exchanged during the re-negotiation of
interconnection agreements with change-of-law provisions will be
subject to true-up at the level of reciprocal compensation for non-
access LEC-CMRS traffic established in the resulting interconnection
agreement, whether the default of bill-and-keep or other pricing
negotiated by the carriers. The Commission finds that this limited
departure from the Commission's prior determination not to override
compensation arrangements in existing contracts is justified to ensure
that the onset of bill-and-keep is not unilaterally delayed beyond the
intended transition period due to delayed or extended re-negotiations
under contractual change-of-law provisions. When the Commission set an
immediate effective date for a default bill-and-keep methodology for
this traffic in the USF/ICC Transformation Order, it found that re-
negotiation under such provisions would help provide a reasonable
transition for LECs with such agreements. Now, the change in the
effective date for bill-and-keep provides a transition for non-access
LEC-CMRS traffic to mitigate marketplace disruption for carriers for
which these revenues may be significant today. Given that change, the
Commission finds that this measure is necessary to maintain the balance
of benefits to consumers and carriers from a default bill-and-keep
methodology that the Commission intended in the USF/ICC Transformation
Order. Further, because of the limited nature of this modification, the
Commission finds that it will not have the harmful effects that
concerned the Commission in adopting its general policy on existing
agreements. The Commission also finds that adoption of this limited
measure will have minimal adverse impact on carriers.
9. Regulatory Flexibility Certification. The Regulatory Flexibility
Act (RFA) requires that agencies prepare a regulatory flexibility
analysis for notice-and-comment rulemaking proceedings, unless the
agency certifies that ``the rule will not have a significant economic
impact on a substantial number of small entities.'' The Commission
certifies that the rule revisions will not have a significant economic
impact on a substantial number of small entities, because the action
merely maintains the status quo for the entities affected. The
Commission will send a copy of the Order, including such certification,
to the Chief Counsel for Advocacy of the Small Business Administration.
10. Paperwork Reduction Act Analysis. This document does not
contain proposed information collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore,
it does not contain any new or modified ``information collection burden
for small business concerns with fewer than 25 employees,'' pursuant to
the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4).
11. Congressional Review Act. The Commission will send a copy of
the Order on Reconsideration in a report to be sent to Congress and the
Government Accountability Office pursuant to the Congressional Review
Act (``CRA'').
12. Effective Date. The Commission concludes that good cause exists
to make the effective date of the amendments to rule 47 CFR 54.101
effective immediately upon publication in the Federal Register,
pursuant to Sec. 553(d)(3) of the Administrative Procedure Act.
Agencies determining whether there is good cause to make a rule
revision take effect less than 30 days after Federal Register
publication must balance the necessity for immediate implementation
against principles of fundamental fairness that require that all
affected persons be afforded a reasonable time to prepare for the
effective date of a new rule. In this instance, no ETC will be
prejudiced by the Order being effective immediately upon publication in
the Federal Register because this action merely clarifies the intent of
the USF/ICC Transformation Order and, by delaying the implementation
date of the modified rule, restores the status quo for Lifeline-only
ETCs in those states where they have already been designated that
existed prior to the USF/ICC Transformation Order for a defined period
of time. This will allow the Commission the opportunity to take further
action with respect to the ``own facilities'' requirement for such
providers in the context of the low-income program.
13. The Commission also concludes that good cause exists to make
the revisions to Sec. Sec. 20.11(e), 51.705(a), and 51.709(c)
effective immediately upon publication in the Federal Register. As
discussed above, allowing the rules subject to the Order to go into
effect on December 29, 2011 may potentially result in a significant
financial impact on LECs exchanging non-access LEC-CMRS traffic
pursuant to interconnection agreements, contrary to the Commission's
initial assumptions. Thus, the Commission finds good cause to make
these rule revisions take effect upon publication in the Federal
Register. Again, no parties will be prejudiced by this Order being
effective immediately upon publication in the Federal Register because
this action merely permits LECs and CMRS providers exchanging non-
access traffic pursuant to an interconnection agreement to maintain the
status quo for a defined period of time.
List of Subjects
47 CFR Part 20
Communications common carriers, Commercial mobile radio services,
Interconnection, Intercarrier compensation.
[[Page 1640]]
47 CFR Part 54
Communications common carriers, Reporting and recordkeeping
requirements, Telecommunications, Telephone.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
For the reasons discussed in the preamble, the Federal
Communications Commission amends 47 CFR parts 20 and 54 as follows:
PART 20--COMMERCIAL MOBILE RADIO SERVICES
0
1. The authority citation for part 20 continues to read as follows:
Authority: 47 U.S.C. 154, 160, 201, 251-254, 301, 303, 316, and
332 unless otherwise noted. Section 20.12 is also issued under 47
U.S.C. 1302.
0
2. Section 20.11 is amended by revising paragraph (e) to read as
follows:
Sec. 20.11 Interconnection to facilities of local exchange carriers.
* * * * *
(e) An incumbent local exchange carrier may request interconnection
from a commercial mobile radio service provider and invoke the
negotiation and arbitration procedures contained in section 252 of the
Act. A commercial mobile radio service provider receiving a request for
interconnection must negotiate in good faith and must, if requested,
submit to arbitration by the state commission.
* * * * *
PART 54--UNIVERSAL SERVICE
0
3. The authority citation for part 54 continues to read as follows:
Authority: 47 U.S.C. 151, 154(i), 201, 205, 214, 219, 220, 254,
303(r), 403, and 1302 unless otherwise noted.
Subpart B--Services Designated for Support
0
4. Section 54.101 is amended by revising paragraph (a) to read as
follows:
Sec. 54.101 Supported services for rural, insular and high cost
areas.
(a) Services designated for support. Voice telephony services shall
be supported by federal universal service support mechanisms. Eligible
voice telephony services must provide voice grade access to the public
switched network or its functional equivalent; minutes of use for local
service provided at no additional charge to end users; access to the
emergency services provided by local government or other public safety
organizations, such as 911 and enhanced 911, to the extent the local
government in an eligible carrier's service area has implemented 911 or
enhanced 911 systems; and toll limitation for qualifying low-income
consumers (as described in subpart E of this part).
* * * * *
[FR Doc. 2012-349 Filed 1-10-12; 8:45 am]
BILLING CODE 6712-01-P
