Rural Digital Opportunity Fund, Connect America Fund, 56504 [2020-17728]
Download as PDF
<![CDATA[
56504
Federal Register / Vol. 85, No. 178 / Monday, September 14, 2020 / Rules and Regulations
In opposing the proposal, the ABA
stated that defining a CSA as a ‘‘single
local community’’ is unreasonable and
unlawful. The ABA largely relied on the
District Court opinion, which was
unanimously reversed by the Circuit
Court. The ABA provided examples of
CSAs that it believes might not be a
WDLC and contended that CSAs have a
‘‘daisy-chain nature’’ in which opposite
ends have little connection. It then
stated that the Circuit Court indicated
that some CSAs might not be a WDLC
and thus could be challenged on an ‘‘as
applied’’ basis. The ABA further stated
that the term ‘‘local community’’ should
not automatically include a CSA.
Rather, it stated that any presumption
that a CSA is a local community should
be rebuttable. The ABA further stated
that the Board should not adopt these
provisions while litigation remains
pending, including the possibility of an
appeal to the Supreme Court.
After reviewing the comments in light
of the unanimous Circuit Court decision
to affirm the Board’s adoption of a CSA
as a presumptive community, the Board
has determined that it is appropriate
and consistent with the Act to amend
the Chartering Manual to allow a CSA
to be re-established as a presumptive
WDLC. Much of the ABA’s argument
relied on the District Court decision that
was unanimously rejected by the threejudge Circuit Court panel. In applying
Chevron, the Circuit Court stated: ‘‘We
appreciate the District Court’s
conclusions, made after a thoughtful
analysis of the Act. But we ultimately
disagree with many of them. In this
facial challenge, we review the rule not
as armchair bankers or geographers, but
rather as lay judges cognizant that
Congress expressly delegated certain
policy choices to the NCUA. After
considering the Act’s text, purpose, and
legislative history, we hold the agency’s
policy choices ‘entirely appropriate’ for
the most part. Chevron, 467 U.S. at
865.’’ 63 With respect to CSAs, the
Circuit Court, in rejecting the District
Court’s analysis, stated:
khammond on DSKJM1Z7X2PROD with RULES
In addition to being consistent with the
Act’s text, the Combined Statistical Area
definition rationally advances the Act’s
underlying purposes. In the 1998
amendments, Congress made two relevant
findings about purpose. First, legislators
found ‘‘essential’’ to the credit-union system
a ‘‘meaningful affinity and bond among
63 Am. Bankers Ass’n, 934 F.3d at 656. See also
with respect to CSAs: ‘‘The NCUA possesses vast
discretion to define terms because Congress
expressly has given it such power. But the authority
is not boundless. The agency must craft a
reasonable definition consistent with the Act’s text
and purposes; that is central to the review we apply
at Chevron’s second step. Here, the NCUA’s
definition meets the standard.’’ Id. at 664.
VerDate Sep<11>2014
17:41 Sep 11, 2020
Jkt 250001
members, manifested by a commonality of
routine interaction [;] shared and related
work experiences, interests, or activities [;] or
the maintenance of an otherwise wellunderstood sense of cohesion or identity.’’
§ 2, 112 Stat. at 914. Second, Congress
highlighted the importance of ‘‘credit union
safety and soundness,’’ because a credit
union on firm financial footing ‘‘will enhance
the public benefit that citizens receive.’’ 64
The Circuit Court explicitly rejected
the ABA’s assertion that CSAs have a
‘‘daisy chain’’ nature, linking multiple
metropolitan areas that have nothing to
do with those at opposite ends of the
chain. As the court stated:
[T]he NCUA’s definition does not readily
create general, widely dispersed regions. Cf.
First Nat’l Bank III, 522 U.S. at 502
(indicating that community credit unions
may not be ‘composed of members from an
unlimited number of unrelated geographical
units’. Combined Statistical Areas are
geographical units well-accepted within the
government. See [81 FR at 88414]. Because
they essentially are regional hubs, the
Combined Statistical Areas concentrate
around central locations. . . . The NCUA
rationally believed that such ‘real-world
interconnections would qualify as the type of
mutual bonds suggested by the term ‘local
community.’ . . . Thus, the agency
reasonably determined that Combined
Statistical Areas ‘‘simply unif[y], as a single
community,’’ already connected neighboring
regions. [See 81 FR at 88,415.] 65
The ABA’s misinterpretation of the
Chevron doctrine was further
repudiated by the entire Circuit Court,
which rejected the ABA’s petition for a
rehearing en banc. The Board
emphasizes that the ABA repeatedly
misstates the regulatory framework for
approving a presumptive community,
both in its court filings and in its
comment letter on the proposed rule.
Under the regulatory provisions in the
Chartering Manual, established by
notice-and-comment rulemaking, there
is no automatic approval of an
application based on a CSA. Rather, an
applicant would have to establish in its
application that it can serve the entire
community, as documented in its
business and marketing plan. A further
constraint on any such CSA or portion
thereof is that its population cannot
exceed 2.5 million people. As the
Circuit Court noted:
We might well agree with the District Court
that the approval of such a geographical area
would contravene the Act. But even so, the
Association would need much more to
mount its facial pre-enforcement challenge in
this case. As the Supreme Court repeatedly
has held, ‘‘the fact that petitioner can point
to a hypothetical case in which the rule
might lead to an arbitrary result does not
64 Id.
65 Id.
PO 00000
at 665–66.
at 666–67.
Frm 00034
Fmt 4700
render the rule’’ facially invalid. Am. Hosp.
Ass’n v. NLRB, 499 U.S. 606, 619 (1991); see
also EPA v. EME Homer City Generation, L.P.
(EME Homer), 572 U.S. 489, 524 (2014) (‘‘The
possibility that the rule, in uncommon
particular applications, might exceed [the
agency]’s statutory authority does not
warrant judicial condemnation of the rule in
its entirety.’’); INS v. Nat’l Ctr. for
Immigrants’ Rights, Inc., 502 U.S. 183, 188
(1991) (‘‘That the regulation may be invalid
as applied in s[ome] cases . . . does not
mean that the regulation is facially invalid
because it is without statutory authority.’’);
cf. Barnhart v. Thomas, 540 U.S. 20, 29
(2003) (‘‘Virtually every legal (or other) rule
has imperfect applications in particular
circumstances.’’).
Here, the Association’s complaint and
the District Court’s accompanying worry
strike us as too conjectural. The NCUA
must assess the ‘‘economic advisability
of establishing’’ the proposed credit
union before approving it, [12 U.S.C.
1754], and as part of the assessment, the
organizers must propose a ‘‘realistic’’
business plan showing how the
institution and its branches would serve
all members in the local community, see
[12 CFR. part 701, app. B, ch. 1 section
IV.D.] The Association has failed to
demonstrate the plausibility of a local
community that is defined like the
hypothetical narrow, multi-state strip
and accompanies a realistic business
plan. And if the agency were to receive
and approve such an application, a
petitioner can make an as-applied
challenge. See, e.g., EME Homer, 572
U.S. at 523–24; Buongiorno, 912 F.2d at
510.66
Thus, existing regulatory provisions
guard against the extreme examples
posited by the ABA, which claims
incorrectly that the Board must approve
them under the Chartering Manual. The
Board agrees with the ABA and the
Circuit Court that any application for a
presumptive community, including one
based on a CSA, can be challenged on
an as applied, case-by-case basis. Given
this regulatory framework, which is
subject to judicial review, the Board
agrees with the Circuit Court’s reasoning
in concluding that re-establishing the
CSA as a presumptive community is
entirely consistent with the express
authority delegated to the Board by
Congress. This provision also advances
the Act’s dual purposes of promoting
common bonds while addressing safety
and soundness considerations by
ensuring that FCUs remain
economically viable.
66 Id.
Sfmt 4700
E:\FR\FM\14SER1.SGM
at 668.
14SER1
]]>Agencies
[Federal Register Volume 85, Number 178 (Monday, September 14, 2020)]
[Rules and Regulations]
[Page 56504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17728]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket Nos. 19-126, 10-90; FCC 20-5; FRS 16999]
Rural Digital Opportunity Fund, Connect America Fund
AGENCY: Federal Communications Commission.
ACTION: Final rule; announcement of effective date.
-----------------------------------------------------------------------
SUMMARY: In this document, the Federal Communications Commission
(Commission) announces that the Office of Management and Budget (OMB)
has approved, for a period of three years, an information collection
associated with the rules for the Connect America Fund Phase II and
Rural Digital Opportunity Fund auctions contained in the Commission's
Rural Digital Opportunity Fund Order, FCC 20-5. This document is
consistent with the Rural Digital Opportunity Fund Order, which stated
that the Commission would publish a document in the Federal Register
announcing the effective date of the new information collection
requirements.
DATES: The amendments to Sec. 54.804(b) and (c) published at 85 FR
13773, March 10, 2020 are effective September 14, 2020.
FOR FURTHER INFORMATION CONTACT: Alexander Minard, Wireline Competition
Bureau at (202) 418-7400 or TTY (202) 418-0484. For additional
information concerning the Paperwork Reduction Act information
collection requirements contact Nicole Ongele at (202) 418-2991 or via
email at [email protected].
SUPPLEMENTARY INFORMATION: The Commission submitted revised information
collection requirements for review and approval by OMB, as required by
the Paperwork Reduction Act (PRA) of 1995, on June 22, 2020. OMB
approved the new information collection requirements on August 4, 2020.
The information collection requirements are contained in the
Commission's Rural Digital Opportunity Fund Order, FCC 20-5, published
at 85 FR 13773, March 10, 2020. The OMB Control Number is 3060-1256.
The Commission publishes this document as an announcement of the
effective date of the rules published on March 10, 2020. If you have
any comments on the burden estimates listed in the following, or how
the Commission can improve the collections and reduce any burdens
caused thereby, please contact Nicole Ongele, Federal Communications
Commission, Room 1-A620, 445 12th Street SW, Washington, DC 20554.
Please include the OMB Control Number, 3060-1256, in your
correspondence. The Commission will also accept your comments via email
at [email protected]. To request materials in accessible formats for people
with disabilities (Braille, large print, electronic files, audio
format), send an email to [email protected] or call the Consumer and
Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432
(TTY).
Synopsis
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507), the Commission is notifying the public that it received OMB
approval on August 4, 2020, for the information collection requirements
contained in 47 CFR 54.804(b) and (c) published at 85 FR 13773, March
10, 2020. Under 5 CFR part 1320, an agency may not conduct or sponsor a
collection of information unless it displays a current, valid OMB
Control Number. No person shall be subject to any penalty for failing
to comply with a collection of information subject to the Paperwork
Reduction Act that does not display a current, valid OMB Control
Number. The OMB Control Number is 3060-1256. The foregoing notice is
required by the Paperwork Reduction Act of 1995, Public Law 104-13,
October 1, 1995, and 44 U.S.C. 3507.
The total annual reporting burdens and costs for the respondents
are as follows:
OMB Control Number: 3060-1256.
OMB Approval Date: August 4, 2020.
OMB Expiration Date: August 31, 2023.
Title: Application for Connect America Fund Phase II and Rural
Digital Opportunity Fund Auction Support.
Form Number: FCC Form 683.
Type of Review: Revision of a currently approved collection.
Respondents: Business or other for-profit entities, Not-for-profit
institutions, and State, Local or Tribal Governments.
Number of Respondents and Responses: 530 respondents; 1,060
responses.
Estimated Time per Response: 2-12 hours (on average).
Frequency of Response: Annual reporting requirements, on occasion
reporting requirement.
Obligation to Respond: Required to obtain or retain benefits.
Statutory authority for this information collection 47 U.S.C. 154, 214,
254 and 303(r) of the Communications Act of 1934, as amended.
Total Annual Burden: 7,420 hours.
Total Annual Cost(s): No cost.
Nature and Extent of Confidentiality: Although most information
collected in FCC Form 683 will be made available for public inspection,
the Commission will withhold certain information collected in FCC Form
683 from routine public inspection. Specifically, the Commission will
treat certain financial and technical information submitted in FCC Form
683 as confidential. In addition, an applicant may use the abbreviated
process under 47 CFR 0.459(a)(4) to request confidential treatment of
the audited financial statements that are submitted during the post-
selection review process. However, if a request for public inspection
for this technical or financial information is made under 47 CFR 0.461,
and the applicant has any objections to disclosure, the applicant will
be notified and will be required to justify continued confidential
treatment. To the extent that an applicant seeks to have other
information collected in FCC Form 683 or during the post-selection
review process withheld from public inspection, the applicant may
request confidential treatment pursuant to 47 CFR 0.459.
Privacy Act Impact Assessment: No impact(s).
Needs and Uses
Connect America Fund Phase II Auction
On November 18, 2011, the Commission released the USF/ICC
Transformation Order and Further Notice of Proposed Rulemaking, WC
Docket No. 10-90 et al., FCC 11-161 (USF/ICC Transformation Order and/
or FNPRM), which comprehensively reformed and modernized the high-cost
program within the universal service fund to focus support on networks
capable of providing voice and broadband services. Among other things,
the Commission created the Connect America Fund (CAF) and concluded
that support in price cap areas would be provided through a combination
of ``a new forward-looking model of the cost of constructing modern
multi-purpose networks'' and a competitive bidding process (CAF Phase
II auction or Auction 903). The Commission also sought comment in the
accompanying USF/ICC Transformation FNPRM on proposed rules governing
the CAF Phase II auction, including basic auction design and the
application process.
In the CAF Phase II auction, service providers competed to receive
support of up to $1.98 billion over 10 years to offer voice and
broadband service in unserved high-cost areas. The information
collection requirements reported under this collection are the result
of several Commission decisions to implement the reform adopted in the
USF/ICC Transformation Order and move forward with conducting the CAF
Phase II auction. In the April 2014 Connect America Order, WC Docket
No. 10-90 et al., FCC 14-54, the Commission adopted various rules
regarding participation in the CAF Phase II auction, the term of
support, and the eligible telecommunications carrier (ETC) designation
process. In the Phase II Auction Order, WC Docket No. 10-90 et al., FCC
16-64, the Commission adopted rules to govern the CAF Phase II auction,
including the adoption of a two-stage application process, which
includes a pre-auction short-form application to be submitted by
parties interested in bidding in the CAF Phase II auction and a post-
auction long-form application that must be submitted by winning bidders
seeking to become authorized to receive CAF Phase II auction support.
The Commission concluded, based on its experience with auctions and
consistent with the record, that this two-stage application process
balances the need to collect information essential to conducting a
successful auction and authorizing CAF Phase II support with
administrative efficiency.
On January 30, 2018, the Commission adopted a public notice that
established the final procedures for the CAF Phase II auction,
including the long-form application disclosure and certification
requirements for winning bidders seeking to become authorized to
receive CAF Phase II auction support. See Phase II Auction Procedures
Public Notice, WC Docket No. 17-182 et al., FCC 18-6. The Commission
also adopted the Phase II Auction Order on Reconsideration, WC Docket
No. 10-90 et al., FCC 18-5, which modified the Commission's letter of
credit rules to provide some additional relief for CAF Phase II auction
support recipients by reducing the costs of maintaining a letter of
credit.
The Commission reduces the number of respondents that are subject
to this collection now that the CAF Phase II auction winning bidders
have been announced.
Rural Digital Opportunity Fund Auction
On February 7, 2020 the Commission released the Rural Digital
Opportunity Fund Order, WC Docket Nos. 19-126, 10-90, FCC 20-5 which
will commit up to $20.4 billion over the next decade to support up to
gigabit speed broadband networks in rural America. The funding will be
allocated through a multi-round, reverse, descending clock auction that
favors faster services with lower latency and encourages intermodal
competition in order to ensure that the greatest possible number of
Americans will be connected to the best possible networks, all at a
competitive cost.
To implement the Rural Digital Opportunity Fund auction, the
Commission adopted new rules for the Rural Digital Opportunity Fund
auction, including the adoption of a two-stage application process.
Like with the CAF Phase II auction, this process includes a pre-auction
short-form application to be submitted by parties interested in bidding
in the Rural Digital Opportunity Fund auction (FCC Form 183) and a
post-auction long-form application that must be submitted by winning
bidders (or their designees) seeking to become authorized to receive
Rural Digital Opportunity Fund support (FCC Form 683). The Commission
received approval for the short-form application (FCC Form 183) in a
separate collection under the OMB control number 3060-1252.
The Commission plans to submit at a later date additional revisions
or new collections for OMB review to address other reforms adopted in
the above-referenced Order.
The Commission therefore revises this information collection to
reflect these requirements to determine the recipients of Connect
America Phase II auction and Rural Digital Opportunity Fund auction
support.
Federal Communications Commission.
Marlene Dortch,
Secretary, Office of the Secretary.
[FR Doc. 2020-17728 Filed 9-11-20; 8:45 am]
BILLING CODE 6712-01-P
