Telecommunications Carriers Eligible for Support; Lifeline and Link Up Reform and Several Petitions for Forbearance, 26705-26708 [2013-10851]
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Federal Register / Vol. 78, No. 89 / Wednesday, May 8, 2013 / Rules and Regulations
governments, in the aggregate, or by the
private sector, of $100,000,000 or more
(adjusted for inflation) in any one year.
Therefore, no actions were deemed
necessary under provisions of the
Unfunded Mandates Reform Act of 1995
(UMRA).
Unfunded Mandates Reform Act of 1995
For the reasons stated in the above
section titled, ‘‘Regulatory Flexibility
Act,’’ 3 this rule does not include a
Federal mandate that may result in the
expenditure by state, local, and tribal
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98% of DEA registrants (most of which
are small businesses) are authorized to
handle Schedule IV controlled
substances. Even if we assume that all
of these registrants were to handle
lorcaserin (e.g., practitioners prescribe
the substance, and pharmacies dispense
those prescriptions), the costs that they
would incur as a result of lorcaserin’s
scheduling would be nominal.
Registrants that dispense (but not
prescribe) would incur nominal
additional security, inventory,
recordkeeping, and labeling costs. These
registered entities have already
established and implemented these
systems and processes required to
handle Schedule IV controlled
substances, and can easily absorb the
costs of dispensing lorcaserin with
nominal to no additional economic
burden. For example, pharmacies and
institutional practitioners may disperse
Schedule II through V controlled
substances throughout the stock of
noncontrolled substances in such a
manner as to obstruct theft or diversion
of the controlled substances. In
addition, because registered pharmacies
must label all Schedule II through V
controlled substances that they
dispense, the requirement to label all
dispensed substances containing
lorcaserin would not impose a
significant economic burden upon
registered pharmacies. Accordingly,
compliance would not require
significant additional manpower, capital
investment, or recordkeeping burdens.
The only additional requirement
imposed by this rule upon registrants
that only prescribe substances
containing lorcaserin is that they issue
an oral or written prescription to
dispense the substance. Accordingly,
registered prescribers would not incur
any additional security, inventory,
recordkeeping, or labeling costs as a
result of this rule as they would not
physically handle lorcaserin.
Because of these facts, this rule will
not result in a significant economic
impact on a substantial number of small
entities.
Authority: 21 U.S.C. 811, 812, 871(b),
unless otherwise noted.
3 UMRA and the RFA share the same definition
of ‘‘rule.’’ UMRA defines ‘‘regulation’’ or ‘‘rule’’ by
cross-referencing the RFA’s definition of ‘‘rule.’’ 2
U.S.C. 658(10)). The RFA generally defines ‘‘rule’’
as ‘‘any rule for which the agency publishes a
general notice of proposed rulemaking pursuant to
section 553(b) of [the Administrative Procedure
Act].’’ 5 U.S.C. 601(2).
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Paperwork Reduction Act of 1995
This action does not impose a new
collection of information requirement
under the Paperwork Reduction Act of
1995, 44 U.S.C. 3501–3521.
Congressional Review Act
This rule is not a major rule as
defined by § 804 of the Small Business
Regulatory Enforcement Fairness Act of
1996 (Congressional Review Act). This
rule will not result in: an annual effect
on the economy of $100,000,000 or
more; a major increase in costs or prices
for consumers, individual industries,
federal, state, or local government
agencies, or geographic regions; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreign
based companies in domestic and
export markets. However, pursuant to
the CRA, DEA has submitted a copy of
this Final Rule to both Houses of
Congress and to the Comptroller
General.
List of Subjects in 21 CFR Part 1308
Administrative practice and
procedure, Drug traffic control,
Reporting and recordkeeping
requirements.
Under the authority vested in the
Attorney General by Section 201(a) of
the CSA (21 U.S.C. 811(a)), and
delegated to the Administrator of DEA
by Department of Justice regulations (28
CFR 0.100) the Administrator hereby
amends 21 CFR part 1308 as follows:
PART 1308—SCHEDULES OF
CONTROLLED SUBSTANCES
The authority citation for 21 CFR Part
1308 continues to read as follows:
1. Section 1308.14 is amended by
redesignating paragraphs (e) and (f) as
paragraphs (f) and (g), and adding a new
paragraph (e) to read as follows:
■
§ 1308.14
Schedule IV.
*
*
*
*
*
(e) Lorcaserin. Any material,
compound, mixture, or preparation
which contains any quantity of the
following substances, including its salts,
isomers, and salts of such isomers,
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whenever the existence of such salts,
isomers, and salts of isomers is possible:
(1) Lorcaserin ...................................
*
*
*
*
1625
*
Dated: April 29, 2013.
Michele M. Leonhart,
Administrator.
[FR Doc. 2013–10895 Filed 5–7–13; 8:45 am]
BILLING CODE 4410–09–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 54
[WC Docket Nos. 09–197; 11–42; FCC 13–
44]
Telecommunications Carriers Eligible
for Support; Lifeline and Link Up
Reform and Several Petitions for
Forbearance
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this order, the Federal
Communications Commission
(Commission) grants limited forbearance
from the requirement of the
Commission’s rules that the service area
of an eligible telecommunications
carrier (ETC) conform to the service area
of any rural telephone company serving
the same area. In particular, this grant
of forbearance applies to any ETC that
has been designated by a state or the
Commission, as well as pending and
future requests by telecommunications
carriers that seek limited designation, as
an ETC to participate only in the
Lifeline program (Lifeline-only ETC).
The Commission concludes that
forbearance furthers the Act’s and
Commission’s goals of ensuring the
availability of voice service to lowincome consumers.
DATES: Effective June 7, 2013, except
paragraph 19 which is effective upon
release of the Memorandum Opinion
and Order.
FOR FURTHER INFORMATION CONTACT:
Alexander Minard, Wireline
Competition Bureau, (202) 418–0428 or
TTY: (202) 418–0484.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s
Memorandum Opinion and Order
(Order) in WC Docket Nos. 09–197;11–
42; FCC 13–44, released on April 15,
2013. 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.
Or at the following Internet address:
SUMMARY:
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https://transition.fcc.gov/Daily_Releases/
Daily_Business/2013/db0415/FCC–13–
44A1.pdf.
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I. Introduction
1. In this Order, pursuant to section
10 of the Communications Act of 1934,
as amended (the Act), we grant limited
forbearance from the requirement of
section 214(e)(5) of the Act and
§ 54.207(b) of the Commission’s rules
that the service area of an eligible
telecommunications carrier (ETC)
conform to the service area of any rural
telephone company serving the same
area. In particular, this grant of
forbearance applies to any ETC that has
been designated by a state or the
Commission, as well as pending and
future requests by telecommunications
carriers that seek limited designation, as
an ETC to participate only in the
Lifeline program (Lifeline-only ETC).
2. We conclude that forbearance
furthers the Act’s and Commission’s
goals of ensuring the availability of
voice service to low-income consumers.
Moreover, we find that application of
the conformance requirements set forth
in section 214(e)(5) of the Act and
§ 54.207(b) of the Commission’s rules is
not necessary to ensure that rates
remain just and reasonable or to protect
consumers. We emphasize that the
forbearance granted herein is limited to
a carrier’s designation as a Lifeline-only
ETC. If any carrier petitions to become
an ETC to receive high-cost support, this
forbearance order is inapplicable and
such carrier must satisfy all of the
statutory requirements applicable to
ETCs under the Act.
II. Discussion
3. We conclude that forbearing from
the conformance requirement of section
214(e)(5) of the Act and § 54.207(b) of
the Commission’s rules is appropriate
and in the public interest for carriers
seeking designation, or already
designated, as Lifeline-only ETCs. For
the reasons explained below, we find
that all three prongs of section 10(a) are
satisfied. As a result, if a commission
designates a carrier as a limited,
Lifeline-only ETC in part of a rural
service area, that designation will not
require redefinition of the rural
telephone company’s service area.
Because forbearance would apply only
to designations for the purpose of
becoming a limited ETC to participate in
the Commission’s Lifeline program, we
examine the conformance requirement
in light of the statutory goal of providing
low-income consumers with access to
telecommunications services as it
relates to the Commission’s Lifeline
program.
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4. Given that designating authorities
may have already designated carriers as
Lifeline-only ETCs in partial rural
service areas without seeking
redefinition, the Commission will not
enforce the conformance requirement
for those previously granted ETC
designations. Such ETCs need not
amend their service area and may rely
on this forbearance to continue serving
partial rural service areas. If the
designating authority required Lifelineonly ETCs to follow the conformance
requirement in its designation, the ETCs
must abide by its designation order. We
emphasize, however, that if any carrier
seeks designation to be an ETC to
receive high-cost support in part of a
service area served by a rural telephone
company, we do not forbear from the
redefinition process that is required by
the Act.
5. Just and Reasonable. Section
10(a)(1) of the Act requires that we
consider whether enforcement of the
provisions from which forbearance is
sought is necessary to ensure that the
charges, practices, classifications, or
regulations by, for, or in connection
with the carriers or services at issue are
just and reasonable and not unjustly or
unreasonably discriminatory. We
conclude that compliance with the
conformance requirement of section
214(e)(5) of the Act and § 54.207(b) of
the Commission’s rules is not necessary
to ensure that a Lifeline-only carrier’s
charges, practices, and classifications
are just and reasonable and not unjustly
or unreasonably discriminatory where it
is providing Lifeline service only.
Lifeline support, designed to reduce the
monthly cost of telecommunications
services for eligible consumers, is
distributed on a per-subscriber basis and
is directly reflected in the price that the
eligible subscriber pays. As discussed
below, we find that the factors
traditionally taken into account by the
Commission and the states when
reviewing a potential redefinition of a
rural service area pursuant to section
214(e)(5) of the Act do not apply in the
context of conditionally designating
ETCs in areas eligible for Lifeline
support. Furthermore, forbearance from
the service area conformance
requirement would not prevent the
Commission from enforcing sections
201 or 202 of the Act, which require all
carriers to charge just, reasonable, and
non-discriminatory rates. The Lifeline
offerings of carriers subject to this
forbearance will compete, at a
minimum, with the Lifeline offerings of
the incumbent wireline carrier, as well
as other wireline and wireless
providers, in any given geographic area.
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We also expect that this competition
will spur innovation among carriers in
their Lifeline offerings, expanding the
choice of Lifeline products for eligible
consumers. The resulting competition is
likely to help ensure just, reasonable,
and nondiscriminatory offerings of
services. For these reasons, we find that
the first prong of section 10(a) is met.
6. Consumer Protection. Section
10(a)(2) requires that we consider
whether applying the conformance
requirement to a voice service provider
that has previously received
designation, or will seek a Lifeline-only
ETC designation through a pending
designation request or at some time in
the future, is necessary for the
protection of consumers. Carriers
designated as Lifeline-only ETCs offer
Lifeline-eligible consumers an
additional choice of providers for
discounted telecommunications
services. Forbearance from the
conformance requirement for Lifelineonly support may provide additional
competitive choices to many lowincome consumers who cannot afford
non-discounted offerings. Moreover,
there is no evidence that forbearance
from the conformance requirement for
the limited purpose of being a Lifelineonly ETC would harm consumers
currently served by the rural telephone
companies in the relevant service areas.
Finally, every ETC, including any
carrier receiving Lifeline-only support,
must certify that it will satisfy
applicable consumer protection and
service quality standards in its service
area. For these reasons, we find that the
second prong of section 10(a) is met.
7. Public Interest. Section 10(a)(3)
requires that we consider whether
forbearing from the conformance
requirement to carriers that have
previously received designation, have
pending designation requests or will
seek ETC designation for Lifeline
support only in the future is in the
public interest. We find that forbearance
from the service area conformance
requirement in these limited
circumstances will promote competitive
market conditions for the Lifeline
program. Requiring carriers to conform
their service areas to those of the rural
carriers in the states they seek to
participate only in the Lifeline program
could result in numerous redefinition
proceedings, which could delay their
entry into those markets, make it more
difficult to market to potential Lifeline
consumers on a statewide basis, and
deprive low-income consumers in areas
where the incumbent wireline provider
is a rural telephone company of an
additional choice of service provider.
For example, carriers state that the
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redefinition process for Lifeline-only
offerings may take years to resolve and,
as such, wastes resources of both
carriers and regulators. Additionally, to
avoid disruption of service to lowincome consumers served by existing
Lifeline-only ETCs that were previously
designated by state designating
authorities or the Commission that
defined carriers’ service areas as part of
a rural service area in its original ETC
designation, those ETCs need not amend
their service areas and may rely on this
forbearance to continue serving partial
rural service areas. We find that
applying the conformance requirement
to Lifeline-only ETCs would not be in
the public interest when balanced
against the benefits of maintaining or
introducing a competitive alternative
Lifeline provider to low-income
consumers.
8. We disagree with assertions that
granting forbearance from the
conformance requirement for Lifelineonly ETC designation will have a
detrimental effect on rural telephone
companies. In response to the Cox
Petition, the Atlas Telephone Company
expresses concerns that granting
forbearance from the conformance
requirement and redefinition process
could cause a rural telephone company
to suffer the same adverse effects from
losing customers to other Lifeline
providers, as observed under traditional
creamskimming analysis, specifically
arguing that as a rural telephone
company’s low-income consumers
migrate to other Lifeline providers, the
number of lines served by the rural
telephone company declines, causing its
cost per line to increase. As the
Commission previously explained, the
amount of Lifeline support is not tied to
the cost of serving an area. Rather,
Lifeline support is a fixed, per-line
amount nationwide, and ETCs are
required to pass through the Lifeline
support they receive to the benefit of
their subscribers. Any creamskimming
concerns in an area of a rural telephone
company are not relevant in considering
the designation of a Lifeline-only ETC.
Creamskimming is not a public-interest
consideration in the Lifeline context,
whether the competing carrier is
offering wireline or wireless service. We
find that the Act contains safeguards to
address any concerns raised by Atlas or
any other rural telephone company that
questions whether the designation of a
carrier as a Lifeline-only ETC is in the
public interest. The Act already requires
designating commissions to
affirmatively determine that designating
a carrier as an ETC within a rural
service area is in the public interest and
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that determination is not affected by this
grant of forbearance. As a result, any
concerns raised by a rural telephone
company will be evaluated by the
designating authority when considering
designating a limited, Lifeline-only ETC.
9. We also disagree with the argument
that granting forbearance from the
conformance requirement will eliminate
the role of states in ETC designations
and redefinition. Forbearance in these
limited circumstances merely removes
the conformance requirement for
previously designated ETCs receiving
Lifeline-only support and carriers with
pending or future ETC designation
requests for Lifeline-only support, so
that states, which have jurisdiction over
most ETCs, may now designate Lifelineonly ETCs in a portion of a rural service
area without requiring redefinition of
that rural service area. State
commissions are still required to
consider the public interest,
convenience and necessity of
designating carriers as a competitive
ETC in a rural area already served by a
rural telephone company. Our decision
here to grant forbearance for Lifelineonly designations does not disturb the
roles of state commissions and this
Commission in the ETC designation
process or in the redefinition process in
other circumstances when redefinition
is required.
10. For pending and future Lifelineonly designation requests, carriers’
service area will no longer be required
to conform to the service area of the
rural telephone companies serving the
same area. The Commission recognizes
all of the important issues raised by
commenters in determining whether a
particular carrier has met the
requirements to become an ETC for the
limited purpose of receiving Lifeline
support, all of which will be addressed
by the designating authority when a
carrier submits an application
requesting designation. Designating
authorities will continue to make an
independent assessment as to whether
designating a carrier as an ETC within
a rural service area is in the public
interest.
11. Our decision here to forbear from
the service area conformance
requirement does not affect the findings
of any prior ETC designation. Virgin
Mobile, i-wireless, Q Link and Global
Connection seek forbearance with
respect to those areas previously
designated by state designating agencies
and the Commission. For previously
designated Lifeline-only ETCs serving
partial rural areas, the designating
authorities have already determined that
designating such carriers as ETCs is in
the public interest. Any carrier that has
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26707
already been designated as an ETC must
comply with the obligations of their
ETC designation orders.
12. The Commission has made clear
its commitment to improve
accountability for providers receiving
universal service support in its
continued effort to fight waste, fraud,
and abuse. In the Commission’s prior
grant of forbearance from the service
area conformance requirement, it
conditioned forbearance on the carriers
submitting, and having the Wireline
Competition Bureau approve, a plan to
comply with several obligations
imposed in that order before it could
begin providing service in accordance
with its grant of forbearance. The
Commission has since adopted
numerous conditions in the Lifeline
Reform Order, 77 FR 12952, March 2,
2012, to reduce waste, fraud and abuse
in the Lifeline program, and thus,
eliminated the need to impose
additional conditions in the context of
forbearance from the service area
conformance requirement. Although
carriers may now be designated a
Lifeline-only ETC by either a state
commission or this Commission in
partial rural service areas, no carrier
seeking to avail itself of this limited
forbearance grant may be designated in
a part of a rural service area to receive
federal high-cost support without first
seeking redefinition of the underlying
rural telephone company’s study area.
13. For the reasons stated herein, we
find that the statutory requirements for
forbearance pursuant to section 10 of
the Act are met and that granting
blanket forbearance from the
conformance requirement for Lifelineonly ETC designations will further the
statutory goals of providing low-income
subscribers access to
telecommunications and emergency
services and promoting more
competitive options for low-income
consumers while protecting the
universal service fund against waste,
fraud, and abuse. We also note that state
commissions and this Commission are
still required to make an independent
assessment as to whether granting a
carrier ETC designation is in the public
interest before including any part of a
rural service area in such carrier’s
service area. Furthermore, forbearance
from the conformance requirement
stated herein does not apply if any
carrier seeks ETC designation to receive
high-cost support; in that instance, such
carrier must conform its service area to
that of the rural telephone company or
else seek redefinition of the service area
pursuant to § 54.207 of the
Commission’s rules.
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IV. Ordering Clauses
III. Procedural Matters
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A. Paperwork Reduction Act
14. The Memorandum Opinion and
Order does not contain new or modified
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.
B. Final Regulatory Flexibility Act
Certification
15. 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 RFA
generally defines ‘‘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).
16. We hereby certify that the
forbearance decision in this
Memorandum Opinion and Order will
not have a significant economic impact
on a substantial number of small
entities. In this Memorandum Opinion
and Order, the Commission eases the
regulatory compliance burden on
Lifeline-only ETCs by forbearing from
the requirement that the service area of
a Lifeline-only ETC conform to the
service area of any rural telephone
company serving the same area. This
Memorandum Opinion and Order does
not modify any of our reporting
requirements. The Commission will
send a copy of this Memorandum
Opinion and Order, including this
certification, to the Chief Counsel for
Advocacy of the SBA. In addition, the
Memorandum Opinion and Order (or a
summary thereof) and certification will
be published in the Federal Register.
C. Congressional Review Act
17. The Commission will send a copy
of this Memorandum Opinion and
Order to Congress and the Government
Accountability Office pursuant to the
Congressional Review Act.
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DATES:
18. It is ordered that, pursuant to the
authority contained in sections 4(i), 4(j),
10, 201, 214, and 254 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), 160,
201, 214, 254, we forbear from applying
the conformance requirement of section
214(e)(5) of the Communications Act of
1934, as amended, 47 U.S.C. 214(e)(5),
and § 54.207(b) of the Commission’s
rules, 47 CFR 54.207(b), to the extent
discussed herein.
19. It is further ordered that, pursuant
to the authority contained in sections
4(i), 4(j), 10, 201, 214, and 254 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 154(j), 160,
201, 214, 254, the petitions for
forbearance filed by Virgin Mobile USA,
L.P., Cox Communications, Inc., Time
Warner Cable, Inc., I-Wireless, LLC, Q
Link Wireless, LLC and Global
Connection Inc. of America are granted
to the extent discussed herein, effective
upon release.
20. It is further ordered that, except as
provided in paragraph 19 above, this
Order shall be effective June 7, 2013.
FOR FURTHER INFORMATION CONTACT:
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2013–10851 Filed 5–7–13; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 130123063–3423–03]
RIN 0648–BC75
Pacific Halibut Fisheries; Catch
Sharing Plan; Correcting Amendment
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; correcting
amendment.
AGENCY:
This action corrects the text of
a final rule published on March 15,
2013, that implemented annual
management measures governing the
Pacific halibut fishery. This final rule
established season dates off of Alaska,
Washington, Oregon and California.
This action is necessary to correct an
error in the days of the week listed for
the fishing season in the area from
Leadbetter Point, WA to Cape Falcon,
OR.
SUMMARY:
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Effective May 8, 2013.
Sarah Williams, 206–526–4646.
A final
rule published March 15, 2013 (78 FR
16423), included annual management
measures for managing the harvest of
Pacific halibut (Hippoglossus
stenolepis) in the sport fishery in
International Pacific Halibut
Commission (IPHC) Regulatory Area 2A
off of Washington, Oregon and
California. This correcting amendment
revises the season days of the week in
the area from Leadbetter Point, WA to
Cape Falcon, OR.
SUPPLEMENTARY INFORMATION:
Need for Correction
The final rule (78 FR 16423), Section
26, Sport Fishing for Halibut Area 2A,
describes dates and days of the week for
sport fishing for halibut off Washington,
Oregon, and California. For the area
from Leadbetter Point, WA to Cape
Falcon, OR the days of the week for the
season from May 3 to July 28 were listed
as Thursday, Friday, Saturday and
should have been listed as Friday
through Sunday. Friday through Sunday
is consistent with the 2013 Pacific
Fishery Management Council’s Catch
Sharing Plan which describes the
structure of the fishery and the
proposed rule (78 FR 9660). The
incorrect days of the week were
inadvertently included in the final rule.
‘‘Thursday, Friday, Saturday’’ is
corrected to read ‘‘Friday through
Sunday’’ in the corrected text set out
below.
On page 16435, paragraph (8)(d)(i), in
the third column, is corrected to read as
follows:
(i) The fishing season commences on
May 3, and continues 3 days a week
(Friday through Sunday) until 9,516 lb
(4.3 mt) are estimated to have been
taken and the season is closed by the
Commission or until July 28, whichever
is earlier. The fishery will reopen on
August 2 and continue 3 days a week
(Friday through Sunday) until 2,379 lb
(1.1 mt) have been taken and the season
is closed by the Commission, or until
September 30, whichever is earlier.
Subsequent to this closure, if there is
insufficient quota remaining in the
Columbia River subarea for another
fishing day, then any remaining quota
may be transferred in-season to another
Washington and/or Oregon subarea by
NMFS via an update to the recreational
halibut hotline. Any remaining quota
would be transferred to each state in
proportion to its contribution.
Classification
Pursuant to 5 U.S.C. 553(b)(B), the
Acting Assistant Administrator for
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Agencies
[Federal Register Volume 78, Number 89 (Wednesday, May 8, 2013)]
[Rules and Regulations]
[Pages 26705-26708]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10851]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket Nos. 09-197; 11-42; FCC 13-44]
Telecommunications Carriers Eligible for Support; Lifeline and
Link Up Reform and Several Petitions for Forbearance
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In this order, the Federal Communications Commission
(Commission) grants limited forbearance from the requirement of the
Commission's rules that the service area of an eligible
telecommunications carrier (ETC) conform to the service area of any
rural telephone company serving the same area. In particular, this
grant of forbearance applies to any ETC that has been designated by a
state or the Commission, as well as pending and future requests by
telecommunications carriers that seek limited designation, as an ETC to
participate only in the Lifeline program (Lifeline-only ETC). The
Commission concludes that forbearance furthers the Act's and
Commission's goals of ensuring the availability of voice service to
low-income consumers.
DATES: Effective June 7, 2013, except paragraph 19 which is effective
upon release of the Memorandum Opinion and Order.
FOR FURTHER INFORMATION CONTACT: Alexander Minard, Wireline Competition
Bureau, (202) 418-0428 or TTY: (202) 418-0484.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Memorandum Opinion and Order (Order) in WC Docket Nos. 09-197;11-42;
FCC 13-44, released on April 15, 2013. 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. Or at the following Internet address:
[[Page 26706]]
https://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0415/FCC-13-44A1.pdf.
I. Introduction
1. In this Order, pursuant to section 10 of the Communications Act
of 1934, as amended (the Act), we grant limited forbearance from the
requirement of section 214(e)(5) of the Act and Sec. 54.207(b) of the
Commission's rules that the service area of an eligible
telecommunications carrier (ETC) conform to the service area of any
rural telephone company serving the same area. In particular, this
grant of forbearance applies to any ETC that has been designated by a
state or the Commission, as well as pending and future requests by
telecommunications carriers that seek limited designation, as an ETC to
participate only in the Lifeline program (Lifeline-only ETC).
2. We conclude that forbearance furthers the Act's and Commission's
goals of ensuring the availability of voice service to low-income
consumers. Moreover, we find that application of the conformance
requirements set forth in section 214(e)(5) of the Act and Sec.
54.207(b) of the Commission's rules is not necessary to ensure that
rates remain just and reasonable or to protect consumers. We emphasize
that the forbearance granted herein is limited to a carrier's
designation as a Lifeline-only ETC. If any carrier petitions to become
an ETC to receive high-cost support, this forbearance order is
inapplicable and such carrier must satisfy all of the statutory
requirements applicable to ETCs under the Act.
II. Discussion
3. We conclude that forbearing from the conformance requirement of
section 214(e)(5) of the Act and Sec. 54.207(b) of the Commission's
rules is appropriate and in the public interest for carriers seeking
designation, or already designated, as Lifeline-only ETCs. For the
reasons explained below, we find that all three prongs of section 10(a)
are satisfied. As a result, if a commission designates a carrier as a
limited, Lifeline-only ETC in part of a rural service area, that
designation will not require redefinition of the rural telephone
company's service area. Because forbearance would apply only to
designations for the purpose of becoming a limited ETC to participate
in the Commission's Lifeline program, we examine the conformance
requirement in light of the statutory goal of providing low-income
consumers with access to telecommunications services as it relates to
the Commission's Lifeline program.
4. Given that designating authorities may have already designated
carriers as Lifeline-only ETCs in partial rural service areas without
seeking redefinition, the Commission will not enforce the conformance
requirement for those previously granted ETC designations. Such ETCs
need not amend their service area and may rely on this forbearance to
continue serving partial rural service areas. If the designating
authority required Lifeline-only ETCs to follow the conformance
requirement in its designation, the ETCs must abide by its designation
order. We emphasize, however, that if any carrier seeks designation to
be an ETC to receive high-cost support in part of a service area served
by a rural telephone company, we do not forbear from the redefinition
process that is required by the Act.
5. Just and Reasonable. Section 10(a)(1) of the Act requires that
we consider whether enforcement of the provisions from which
forbearance is sought is necessary to ensure that the charges,
practices, classifications, or regulations by, for, or in connection
with the carriers or services at issue are just and reasonable and not
unjustly or unreasonably discriminatory. We conclude that compliance
with the conformance requirement of section 214(e)(5) of the Act and
Sec. 54.207(b) of the Commission's rules is not necessary to ensure
that a Lifeline-only carrier's charges, practices, and classifications
are just and reasonable and not unjustly or unreasonably discriminatory
where it is providing Lifeline service only. Lifeline support, designed
to reduce the monthly cost of telecommunications services for eligible
consumers, is distributed on a per-subscriber basis and is directly
reflected in the price that the eligible subscriber pays. As discussed
below, we find that the factors traditionally taken into account by the
Commission and the states when reviewing a potential redefinition of a
rural service area pursuant to section 214(e)(5) of the Act do not
apply in the context of conditionally designating ETCs in areas
eligible for Lifeline support. Furthermore, forbearance from the
service area conformance requirement would not prevent the Commission
from enforcing sections 201 or 202 of the Act, which require all
carriers to charge just, reasonable, and non-discriminatory rates. The
Lifeline offerings of carriers subject to this forbearance will
compete, at a minimum, with the Lifeline offerings of the incumbent
wireline carrier, as well as other wireline and wireless providers, in
any given geographic area. We also expect that this competition will
spur innovation among carriers in their Lifeline offerings, expanding
the choice of Lifeline products for eligible consumers. The resulting
competition is likely to help ensure just, reasonable, and
nondiscriminatory offerings of services. For these reasons, we find
that the first prong of section 10(a) is met.
6. Consumer Protection. Section 10(a)(2) requires that we consider
whether applying the conformance requirement to a voice service
provider that has previously received designation, or will seek a
Lifeline-only ETC designation through a pending designation request or
at some time in the future, is necessary for the protection of
consumers. Carriers designated as Lifeline-only ETCs offer Lifeline-
eligible consumers an additional choice of providers for discounted
telecommunications services. Forbearance from the conformance
requirement for Lifeline-only support may provide additional
competitive choices to many low-income consumers who cannot afford non-
discounted offerings. Moreover, there is no evidence that forbearance
from the conformance requirement for the limited purpose of being a
Lifeline-only ETC would harm consumers currently served by the rural
telephone companies in the relevant service areas. Finally, every ETC,
including any carrier receiving Lifeline-only support, must certify
that it will satisfy applicable consumer protection and service quality
standards in its service area. For these reasons, we find that the
second prong of section 10(a) is met.
7. Public Interest. Section 10(a)(3) requires that we consider
whether forbearing from the conformance requirement to carriers that
have previously received designation, have pending designation requests
or will seek ETC designation for Lifeline support only in the future is
in the public interest. We find that forbearance from the service area
conformance requirement in these limited circumstances will promote
competitive market conditions for the Lifeline program. Requiring
carriers to conform their service areas to those of the rural carriers
in the states they seek to participate only in the Lifeline program
could result in numerous redefinition proceedings, which could delay
their entry into those markets, make it more difficult to market to
potential Lifeline consumers on a statewide basis, and deprive low-
income consumers in areas where the incumbent wireline provider is a
rural telephone company of an additional choice of service provider.
For example, carriers state that the
[[Page 26707]]
redefinition process for Lifeline-only offerings may take years to
resolve and, as such, wastes resources of both carriers and regulators.
Additionally, to avoid disruption of service to low-income consumers
served by existing Lifeline-only ETCs that were previously designated
by state designating authorities or the Commission that defined
carriers' service areas as part of a rural service area in its original
ETC designation, those ETCs need not amend their service areas and may
rely on this forbearance to continue serving partial rural service
areas. We find that applying the conformance requirement to Lifeline-
only ETCs would not be in the public interest when balanced against the
benefits of maintaining or introducing a competitive alternative
Lifeline provider to low-income consumers.
8. We disagree with assertions that granting forbearance from the
conformance requirement for Lifeline-only ETC designation will have a
detrimental effect on rural telephone companies. In response to the Cox
Petition, the Atlas Telephone Company expresses concerns that granting
forbearance from the conformance requirement and redefinition process
could cause a rural telephone company to suffer the same adverse
effects from losing customers to other Lifeline providers, as observed
under traditional creamskimming analysis, specifically arguing that as
a rural telephone company's low-income consumers migrate to other
Lifeline providers, the number of lines served by the rural telephone
company declines, causing its cost per line to increase. As the
Commission previously explained, the amount of Lifeline support is not
tied to the cost of serving an area. Rather, Lifeline support is a
fixed, per-line amount nationwide, and ETCs are required to pass
through the Lifeline support they receive to the benefit of their
subscribers. Any creamskimming concerns in an area of a rural telephone
company are not relevant in considering the designation of a Lifeline-
only ETC. Creamskimming is not a public-interest consideration in the
Lifeline context, whether the competing carrier is offering wireline or
wireless service. We find that the Act contains safeguards to address
any concerns raised by Atlas or any other rural telephone company that
questions whether the designation of a carrier as a Lifeline-only ETC
is in the public interest. The Act already requires designating
commissions to affirmatively determine that designating a carrier as an
ETC within a rural service area is in the public interest and that
determination is not affected by this grant of forbearance. As a
result, any concerns raised by a rural telephone company will be
evaluated by the designating authority when considering designating a
limited, Lifeline-only ETC.
9. We also disagree with the argument that granting forbearance
from the conformance requirement will eliminate the role of states in
ETC designations and redefinition. Forbearance in these limited
circumstances merely removes the conformance requirement for previously
designated ETCs receiving Lifeline-only support and carriers with
pending or future ETC designation requests for Lifeline-only support,
so that states, which have jurisdiction over most ETCs, may now
designate Lifeline-only ETCs in a portion of a rural service area
without requiring redefinition of that rural service area. State
commissions are still required to consider the public interest,
convenience and necessity of designating carriers as a competitive ETC
in a rural area already served by a rural telephone company. Our
decision here to grant forbearance for Lifeline-only designations does
not disturb the roles of state commissions and this Commission in the
ETC designation process or in the redefinition process in other
circumstances when redefinition is required.
10. For pending and future Lifeline-only designation requests,
carriers' service area will no longer be required to conform to the
service area of the rural telephone companies serving the same area.
The Commission recognizes all of the important issues raised by
commenters in determining whether a particular carrier has met the
requirements to become an ETC for the limited purpose of receiving
Lifeline support, all of which will be addressed by the designating
authority when a carrier submits an application requesting designation.
Designating authorities will continue to make an independent assessment
as to whether designating a carrier as an ETC within a rural service
area is in the public interest.
11. Our decision here to forbear from the service area conformance
requirement does not affect the findings of any prior ETC designation.
Virgin Mobile, i-wireless, Q Link and Global Connection seek
forbearance with respect to those areas previously designated by state
designating agencies and the Commission. For previously designated
Lifeline-only ETCs serving partial rural areas, the designating
authorities have already determined that designating such carriers as
ETCs is in the public interest. Any carrier that has already been
designated as an ETC must comply with the obligations of their ETC
designation orders.
12. The Commission has made clear its commitment to improve
accountability for providers receiving universal service support in its
continued effort to fight waste, fraud, and abuse. In the Commission's
prior grant of forbearance from the service area conformance
requirement, it conditioned forbearance on the carriers submitting, and
having the Wireline Competition Bureau approve, a plan to comply with
several obligations imposed in that order before it could begin
providing service in accordance with its grant of forbearance. The
Commission has since adopted numerous conditions in the Lifeline Reform
Order, 77 FR 12952, March 2, 2012, to reduce waste, fraud and abuse in
the Lifeline program, and thus, eliminated the need to impose
additional conditions in the context of forbearance from the service
area conformance requirement. Although carriers may now be designated a
Lifeline-only ETC by either a state commission or this Commission in
partial rural service areas, no carrier seeking to avail itself of this
limited forbearance grant may be designated in a part of a rural
service area to receive federal high-cost support without first seeking
redefinition of the underlying rural telephone company's study area.
13. For the reasons stated herein, we find that the statutory
requirements for forbearance pursuant to section 10 of the Act are met
and that granting blanket forbearance from the conformance requirement
for Lifeline-only ETC designations will further the statutory goals of
providing low-income subscribers access to telecommunications and
emergency services and promoting more competitive options for low-
income consumers while protecting the universal service fund against
waste, fraud, and abuse. We also note that state commissions and this
Commission are still required to make an independent assessment as to
whether granting a carrier ETC designation is in the public interest
before including any part of a rural service area in such carrier's
service area. Furthermore, forbearance from the conformance requirement
stated herein does not apply if any carrier seeks ETC designation to
receive high-cost support; in that instance, such carrier must conform
its service area to that of the rural telephone company or else seek
redefinition of the service area pursuant to Sec. 54.207 of the
Commission's rules.
[[Page 26708]]
III. Procedural Matters
A. Paperwork Reduction Act
14. The Memorandum Opinion and Order does not contain new or
modified 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.
B. Final Regulatory Flexibility Act Certification
15. 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 RFA generally defines ``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).
16. We hereby certify that the forbearance decision in this
Memorandum Opinion and Order will not have a significant economic
impact on a substantial number of small entities. In this Memorandum
Opinion and Order, the Commission eases the regulatory compliance
burden on Lifeline-only ETCs by forbearing from the requirement that
the service area of a Lifeline-only ETC conform to the service area of
any rural telephone company serving the same area. This Memorandum
Opinion and Order does not modify any of our reporting requirements.
The Commission will send a copy of this Memorandum Opinion and Order,
including this certification, to the Chief Counsel for Advocacy of the
SBA. In addition, the Memorandum Opinion and Order (or a summary
thereof) and certification will be published in the Federal Register.
C. Congressional Review Act
17. The Commission will send a copy of this Memorandum Opinion and
Order to Congress and the Government Accountability Office pursuant to
the Congressional Review Act.
IV. Ordering Clauses
18. It is ordered that, pursuant to the authority contained in
sections 4(i), 4(j), 10, 201, 214, and 254 of the Communications Act of
1934, as amended, 47 U.S.C. 154(i), 154(j), 160, 201, 214, 254, we
forbear from applying the conformance requirement of section 214(e)(5)
of the Communications Act of 1934, as amended, 47 U.S.C. 214(e)(5), and
Sec. 54.207(b) of the Commission's rules, 47 CFR 54.207(b), to the
extent discussed herein.
19. It is further ordered that, pursuant to the authority contained
in sections 4(i), 4(j), 10, 201, 214, and 254 of the Communications Act
of 1934, as amended, 47 U.S.C. 154(i), 154(j), 160, 201, 214, 254, the
petitions for forbearance filed by Virgin Mobile USA, L.P., Cox
Communications, Inc., Time Warner Cable, Inc., I-Wireless, LLC, Q Link
Wireless, LLC and Global Connection Inc. of America are granted to the
extent discussed herein, effective upon release.
20. It is further ordered that, except as provided in paragraph 19
above, this Order shall be effective June 7, 2013.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2013-10851 Filed 5-7-13; 8:45 am]
BILLING CODE 6712-01-P