OF WEST VIRGINIA CHARLESTON At a session of the OF WEST VIRGINIA in the City of Charleston on the 27th day of February, 1998. CASE NO. 97-1584-T-PC COMSCAPE TELECOMMUNICATIONS OF CHARLESTON, INC. Petition for designation of ComScape Telecommunications of Charleston, Inc. as an eligible telecommunications carrier pursuant to $2 14(e) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, to be codified at 47 U.S.C. 15 1 et seq. COMMISSION ORDER On December 1, 1997, ComScape Telecommunications of Charleston, Inc. (ComScape) filed a petition requesting that the Commission designate the Company as an eligible telecommunications carrier (ETC), pursuant to 214(e) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, to be codified at 47 U.S.C. 151 et seq. (TA96), in its service area in order to receive federal universal service funding. In support of its petition, ComScape alleges that its wholly-owned subsidiary -- ComScape Telecommunications of Charleston License, Inc. -- holds an FCC authorization to construct and operate the broadband PCS C Block license for the Charleston, WV Basic Trading Area (Charleston BTA). As ComScape points out, the Charleston BTA covers 13 counties in the State. ComScape Petition, 2. ComScape began operations on October 28, 1997 and is currently providing service in portions of Kanawha County only. ComScape contends that it intends to extend customer access within Kanawha County and additional counties in the OF WEST
Charleston BTA in the future, and will seek designation as an ETC in additional areas in the future as well. Id., 73. ComScape claims that, through a combination of its own facilities and resale of other carriers facilities, it is able to offer the following services to its customers: (1) voice grade access to the public switched network; (2) local usage; (3) dual tone multi-frequency (DTMF) signaling or its functional equivalent; (4) single-party service or its functional equivalent; (5) access to emergency service; (6) access to operator services; (7) access to interexchange service; and (8) access to directory assistance. Id., 74. In addition, ComScape claims that it offers toll blocking to qualifying low-income customers when they subscribe to Lifeline, but claims that it cannot offer toll control to such customers as well. Id., 5. Finally, ComScape claims that it will advertise the availability of such services and the charges therefor using media of general distribution, asserts that it will not disconnect Lifeline service for non-payment of toll charges, and claims that it will not collect a deposit to initiate Lifeline service. ComScape Petition, 6-8. Based on the foregoing, ComScape claims that it satisfies the requirements set forth in the FCC s rules in order to be designated an ETC. Id., 10. On January 13, 1998, Commission Staff (Staff) filed its Final Joint Staff Memorandum in this proceeding. Staff recommended that the Commission should deny ComScape s petition for a number of reasons. As an initial matter, Staff notes that a significant portion of ComScape s service area covers portions of the service areas of four (4) incumbent local exchange carriers (ILECs): Citizens Telecommunications, Citizens Mountain State, Armstrong Telephone Company and 2 OF WEST VIRGINIA
Armstrong Telephone Company - Northern Division. Staff noted that these ILECs have been designated ETCs by the Commission and they are also rural telephone companies (RTCs), as defined by TA96. Staff asserted that there is no requirement that more than one carrier is designated an ETC in an area served by an RTC. Staff further noted that, since ComScape is a wireless telecommunications provider, it is exempted by federal law from state requirements that it obtain a certificate of convenience and necessity from the Commission and obtain Commission approval of tariffs governing the rates and terms of service. Without the benefit of an enforceable tariff, Staff claims that it cannot be assured that ComScape s claim that it will be able to offer the services and functionalities required to be offered by an ETC. Moreover, Staff believes that ComScape s promise that it will not disconnect Lifeline service for non-payment of toll charges and that it will not collect a service deposit for initiation of Lifeline service if the applicant takes toll blocking should be set forth in an enforceable tariff. Finally, Staff points out that ComScape admits that it does not currently meet the ETC advertising requirement, but rather claims that it will advertise the availability of its services and charges therefor in media of general distribution. Staff apparently believes that ComScape should be advertising such services and charges in media of general distribution at the time it files its Although Staff did not point it out in its memorandum, ComScape s service area also includes areas served by another ILEC -- Bell Atlantic - West Virginia, Inc. (BA- WV). 3 OF WEST VIRGINIA
petition. Staff concludes that the matter of designating multiple ETCs in RTC service areas should be dealt with in the Commission s universal service proceeding and that ComScape can apply later if the Commission s ruling in the universal service proceeding allows multiple ETCs in a RTC s service area. On January 22, 1998, ComScape filed a request for a ten (10) day extension of time to file a reply to Staffs memorandum. Thereafter, ComScape filed its reply on January 30, 1998. In its reply, ComScape amended its petition to limit its request for designation as an ETC to those portions of the Charleston BTA not served by a RTC. ComScape Reply, at 2-3. After abandoning its petition for designation in RTC-served areas, ComScape contends the Commission must designate it an ETC if it meets the FCC criteria set forth in 47 C.F.R. 54.201(d). ComScape further argues that the FCC has determined that states are precluded from imposing additional requirements for being designated an ETC. Id., at 3. None of the criteria set forth in TA96 or the FCC s rules, ComScape argues, includes a requirement that it have a tariff on file with the Commission. Id., at 3-4. Moreover, if the Commission determines that ComScape is not meeting its obligationsasanetc,thecompanypointsoutthatthecommission can simplyrevoke ComScape s ETC-designation. Id., at 4. Finally, ComScape points out that, with respect to the ETC advertising requirement, the Company claims that, as soon as it receives designation as an ETC, it 4 OF WEST VIRGINIA
will meet the advertising required. Id., at 5. Furthermore, ComScape argues that Staff would put the cart before the horse by requiring the Company to advertise services it will not provide until it has been designated an ETC. Id., at 5-6. DISCUSSION Under TA96 and the FCC s rules, being designated an ETC is an essential requirement in order for common carriers of telecommunications services to be eligible to receive federal universal service support pursuant to 47 U.S.C. 254. In order to be designated an ETC, a carrier must: (1) offer the services² supported by federal universal service support mechanisms under 47 U.S.C. 254(c), either using its own facilities or a combination of its own facilities and resale; and (2) advertise the availability of such services and the charges therefore, using media of general distribution. 47 U.S.C. 214(e)( 1)(A) & (B). Under TA96, [a] State Commission shall upon its own motion or upon request designate a common carrier that meets the requirements of [47 U.S.C. 214(e)(l)] as an eligible ²The nine services that are supported by federal universal service support mechanisms are: (1) voice grade access to the public switch network; (2) local usage i.e., a prescribed amount of minutes of use of exchange service provided free of charge to end users; (3) dual tone multi-frequency (DTMF) signaling or its functional equivalent; (4) single party service, or its functional equivalent; (5) access to emergency services, including access to 91 1 and E91 1 services, to the extent local governments in an eligible carrier s service area have implemented 91 1 or E91 1 systems; (6) access to operator services; (7) access to interexchange service; (8) access to directory assistance service; and (9) toll limitation (i.e.toll blocking) for qualifying low-income consumers. 47 C.F.R. 54.101(a)( 1)-(9). 5 OF WEST
telecommunications carrier for a service area designated by the State Commission. 47 U.S.C. 214(e)(2) (emphasis added). If more than one carrier requests to be designated as an ETC for a service area, the state commission must designate such carrier as an ETC (assuming the carrier meets the requirements of 47 U.S.C. 214(e)( 1)) but, in the case of areas served by a rural telephone company, the state commission (but is not required to) designate more than one ETC per area served. Id. The Commission concludes that ComScape s petition should be denied. ComScape s petition demonstrates that it does not yet meet the eligibility requirements necessary to be designated an ETC in any portion of its service area, whether that area is within an RTC s service area or not. Several provisions in 214(e) of TA96 control ComScape s petition. Those provisions state, in pertinent part: (1) A common carrier designated as an eligible telecommunications carrier... shall be eligible to receive universal service support in accordance with [47 U.S.C. 254] and shall, throughout the service area for which the designation is received -- (A) offer the services that are supported by Federal universal service support mechanisms under [47 U.S.C. 254(c)], either using its own facilities or a combination of its own facilities and resale of another carrier s services (including the services offered by another eligible telecommunications carriers); and (B) advertise the availability of such services and the charges therefor using media of general distribution. (2) A State commission shall upon its own motion or upon request 6 OF WEST VIRGINIA
*** (5) designate a common carrier that meets the requirements of [47 U.S.C. 214(e)(1) as an [ETC] for a service area designated by the State commission. Upon request and consistent with the public interest, convenience, and necessity, the State commission may, in the case of an area served by a [RTC], and shall in the case of all other areas, designate more than one common carrier as an [ETC] for a service area designated by the State commission, so long as each additional requesting carrier meets the requirements of [47 U.S.C. $2 14(e)( l)].... The term service area means a geographic area established by a State commission for the purpose of determining universal service support obligations and support mechanisms. In the case of an area served by a [RTC], service area means such company s study area unless and until the Commission and the States, after taking into account recommendations of a Federal-State Joint Board... establish a different definition of service area for such company. 47 U.S.C. 214(e)( 1)-(2) & (5) (emphasis added). The FCC clarified the statutory requirements for designation as an ETC in its Report and Order, In the Matter of Federal-State Joint Board on Universal Service, CC Docket No. 96-45, FCC 97-157 (Rel. May 8, 1997) (FCC US Order). In its order, the FCC stated that only a common carrier may be designated an ETC further and wrote that each ETC must, throughout its service area: (1) offer the services that are supported by federal universal service support mechanisms... (2) offer such services using its own facilities or a combination of its own facilities and resale of another carriers services...; and (3) advertise the availability of and charges for such services using media of general distribution. 7 OF WEST
FCC US Order, 134 (emphasis added). There is no dispute whether ComScape, as a PCS provider, is a common carrier that is eligible for designation as an ETC -- it is.³ The crucial issue is whether ComScape offers the federally supported services, using its own facilities or a combination of facilities and resale, and advertises such services and the charges therefor, throughout its service area. By its own representations, ComScape does not offer such services throughout its service area and that reason alone is sufficient to warrant denial of its petition. The FCC made it clear that, in order to be designated an ETC, a carrier must offer supported services throughout its entire service area. In its May 8, 1997 order, the FCC wrote that the terms of 47 U.S.C. 214(e) do not allow the agency to alter an ETC s duty to serve an entire service area. FCC US Order, 141. Thus, the FCC concluded that it could not modify the requirements of 47 U.S.C. 2 14(e) for carriers whose technology limited their ability to provide service throughout a state-defined service area. Id. Similarly, the FCC rejected comments suggesting that ETCs should be made subject to the regulatory requirements that govern ILECs in order to avoid cream skimming, noting that ETCsareprevented from attracting only the most desirable customers by the fact that eligibility is limited to common carriers and by the fact that ETCs are required to offer supported services and advertise throughout their service area. Id., 142. That supported services must be offered throughout a carrier s entire service area was made ³The FCC made this clear, noting that any telecommunications carrier, using any technology -- including wireless technology -- is eligible for support of it meets the criteria of 47 U.S.C. 214(e). FCC US Order, 7145. Moreover, CMRS providers clearly may be common carriers. See 47 U.S.C. 332(c)( 1)(A) (1997 Cum. Supp.). 8 OF WEST
even clearer in the FCC s discussion of 47 U.S.C. 52 14(e) s advertising requirement. In the May 8, 1997 order, the FCC refused to set nationwide advertising rules and concluded that, in the first instance, states should establish any guidelines needed to govern such advertising, noting that states are in a better position to monitor the effectiveness of carriers advertising throughout their service areas. FCC US Order, 148. More significantly, the FCC refused to adopt regulations defining the term throughout a carrier s service area, concluding that: [N]o further regulations are necessary to define the term throughout. The dictionary definition -- in or though all parts; everywhere -- requires no further clarification. Id. (emphasis added) Although 47 U.S.C. 214(e) speaks in terms of state commission defined service areas, the Commission is precluded from defining service areas for wireless carriers such as ComScape. It is the FCC, through its licensing authority -- not a state commission -- which establishes service areas for wireless carriers. Although there is no discussion of this precise issue in TA96, TA96 s legislative history, or the FCC s May 8, 1997 order, the Commission believes this conclusion is mandated by other provisions of federal law -- specifically, 47 U.S.C. 332(c). Section 332(c) provides: Notwithstanding [47 U.S.C. 152(b) and 221(b)], no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not 9 PUBLIC SERVICE COMMISSION
prohibit a State from regulating other terms and conditions of commercial mobile services. Nothing in this subparagraph shall exempt providers of commercial mobile services (where such services are a substitute for land line telephone exchange service for a substantial portion of the communications within each State) from requirements imposed by a State commission on all providers of telecommunications services necessary to ensure the universal availability of telecommunications service at affordable rates.... 47 U.S.C. 332(c)(3) (emphasis added). The Commission believes that any effort by it to define the service area of a wireless carrier -- even for purposes of universal service -- would be preempted as state regulation of a wireless carrier s entry into West Virginia pursuant to 47 U.S.C. 332(c)(3). Moreover, the Commission does not believe it that could, as a regulation of other terms and conditions allowed to states under 47 U.S.C. 332(c)(3), define a service area different than that established by the FCC for a wireless carrier -- even for the limited purpose of universal service. As the FCC noted, the statute itself does not provide a definition of other terms and conditions. Memorandum Opinion and Order, In the matter of Petition of Pittencrieff Communications, Inc. for Declaratory Ruling Regarding Preemption of the Texas Public Utility Regulatory Act of 1995, File No. WTB/POL 96-2 (Rel. Oct. 2, 1997), 16. However, the FCC determined that Congress intended the phrase to include such other matters withina as fall state s lawful authority, citing the House Report which explained the meaning of terms and conditions as follows: By terms and conditions, the Committee intends to include such matters as customer billing information and practices and billing disputes and other consumer protection matters; facilities siting issues (e.g. zoning); transfers of control; the bundling of services and equipment; and the requirement that carriers make capacity 10
available on a wholesale basis or such other matters as fall within a state s lawful authority. This list is intended to be illustrative only and not meant to preclude other matters generally understood to fall under terms and conditions. Id. (citation omitted).4 The Commission cannot conclude that defining a wireless carrier s service area -- even for the limited purpose of determining a carrier s eligibility to receive universal service support -- would be considered a matter which falls within a state s jurisdiction or which is generally understood to be terms and conditions of service which states may continue to regulate. The Commission s decision is further supported by a portion of the FCC s discussion, in its May 8, 1997 universal service order, of some of the specific issues that pertain to wireless carriers and their ability to be designated ETCs. In the order, the FCC noted that not all carriers are subject to the jurisdiction of a state commission, and concluded that nothing in 47 U. S.C. 214( e) requires a carrier to be subject to the jurisdiction of a state commission in order to be designated an ETC. FCC US Order, 147. Thus, the FCC concluded, CMRS providers -- among others -- may be ETCs. Id.5 Moreover, the FCC noted that 47 U.S.C. 332(c) generally precludes states from rate and entry regulation of CMRS providers and thus differentiates between such providers and other carriers. 4The FCC upheld Texas statute requiring CMRS providers to pay two fees related to the provision of universal service in the Pittencrief order, it did so on the grounds that: (1) the statute was expressly allowed by TA96; (2) the fee requirement was not an impermissible state regulation of CMRS providers rates and entry; and (3) the fee requirement could be considered other terms and conditions of CMRS provider service, which states could regulate. 5The FCC also refused to adopt a rule that, in order to be designated an ETC, a wireless carrier must be the customer s primary carrier and the customer pays unsubsidized rates for wireline service. FCC US Order, 146. 11
Id.; 1025. Finally, the FCC, in its discussion of the differentiation between CMRS providers and other carriers, noted that Congress believes that CMRS providers services, by their nature, operate without regard to state lines. Id., Fn. 2430.6 Based on the foregoing, the Commission concludes that 47 U.S.C. 332(c)(3) preempts the Commission from designating a service area for wireless carriers, such as ComScape, for purposes of determining whether the carrier should be designated an ETC. The Commission believes that this is the appropriate interpretation of 47 U.S.C. 214(e), despite the provision in subsection (e)(5) that service areas for ETCs will be defined by state commissions. While state commissions may define service areas for local, wireline carriers whose rates and entry is clearly subject to state jurisdiction they may not define service areas for wireless carriers whose rates and entry are clearly not subject to state jurisdiction. Therefore, the Commission should utilize the FCC-defined service area of ComScape for determining whether it meets the requirements of 47 U.S.C. 214(e)( 1) in order to be designated an ETC. Using ComScape s FCC-defined license area -- the C block of the Charleston BTA -- it is clear that ComScape does not offer the federally-supported services throughout its service area. 6Moreover, the FCC s explanation of 47 U.S.C. 214(e)(5) s discussion regarding RTC service areas is analogous to situations involving CMRS providers. Section 214(e)(5) makes it clear that state commissions may not adopt a definition of service areas for RTCs different than the RTCs study areas, except in conjunction with the FCC, and pursuant to recommendations of a State-Federal Joint Board. The FCC therefore concluded that neither the states nor the FCC may act alone to alter the definition of an RTC s service area for purposes of universal service. FCC US Order, 187-89. 12
The C block of the Charleston BTA consists of thirteen (13) counties.7 By its own admission, ComScape only began offering service in the Charleston BTA on October 28, 1997, and then only in portions of Kanawha County. ComScape Petition, 73. By no means is ComScape offering federally-supported services to all customers throughout its service area. Until it does, or demonstrates that it is capable of doing so, the Commission should not make it eligible for federal universal service support by designating it an ETC.8 The Commission believes several points need to be made with respect to Staffs recommendations. Staff recommended that the issue of designating more than (1) one ETC per RTC service area should be addressed in the Commission s universal service proceeding (Case No. 97-0103-T-GI). The Commission dieagrees. Section 214(e) and the designation of ETCs is relevant only to matters involving federal universal support pursuant to 47 U.S.C. 254 -- it is not relevant to issues regarding a state universal service fund. While the Commission may want to address 7These counties are: Boone, Braxton, Clay, Fayette, Jackson, Kanawha, Lincoln, Mason, Nicholas, Pocahontas, Putnam, Roane and Webster. 8Two other points raised in ComScape s petition need to be addressed. First, in its universal service order, the FCC made it clear that carriers must use their own facilities, including unbundled network elements, to provide at least one of the supported services. FCC US Order, 7169. Moreover, these facilities must be physical components of the telecommunications network used in the transmission or routing of the supported services. Id., 15 1. ComScape s petition is silent on both these issues. Secondly, ComScape expresses its intent to seek designation as an ETC in additional areas in the future presumably when it begins providing service in such areas. ComScape Petition, 3. Not only is this piecemeal approach to ETC designation inconsistent with the federal regulatory scheme -- it would also be a highly inefficient use of the Commission s resources to repeatedly define and redefine service areas in which a carrier is designated an ETC. The Commission rejects such an approach outright. 13 PUBLIC COMMISSION
whether more than one carrier should be eligible for state universal service support in an RTC service area in its universal service proceeding, it cannot postpone consideration of such issues with respect to federal universal service support. Secondly, Staff recommended that ComScape should be required to file a non-rate tariff with the Commission in order to allow Staff to monitor ComScape s service offerings and rates. ComScape strongly objected to that recommendation. While it is not pertinent to the Commission s decision in this proceeding, the Commission wishes to make it clear that it believes it can require non-rate tariffs to be filed with it by wireless carriers as other terms and conditions of service in the State -- something permitted under 47 U.S.C. 332(c)(3). Whether the Commission wants to require such informational filings is another matter for consideration some other time. FINDINGS OF FACT 1. On December 1997, 1, ComScape Telecommunications of Charleston, Inc. (ComScape) filed a petition requesting that the Commission designate the Company as an eligible telecommunications carrier (ETC), pursuant to 214(e) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, to be codified at 47 U.S.C. 15 1 et seq. (TA96), in its service area in order to receive federal universal service funding. 2. ComScape s wholly-owned subsidiary -- ComScape Telecommunications of Charleston License, Inc. -- holds an FCC authorization to construct and operate the broadband PCS 14 OF WEST VIRGINIA
C Block license for the Charleston, WV Basic Trading Area (Charleston BTA). ComScape Petition, 3. TheCharlestonBTAcovers13countiesinthe State. Id. These counties are: Boone, Braxton, Clay, Fayette, Jackson, Kanawha, Lincoln, Mason, Nicholas, Pocahontas, Putnam, Roane and Webster. 4. A significant portion of ComScape s service area covers portions of the service areas of four (4) incumbent local exchange carriers (ILECs): Citizens Telecommunications, Citizens Mountain State, Armstrong Telephone Company and Armstrong Telephone Company - Northern Division. Although Staff did not point it out in its memorandum, ComScape s service area also includes areas served by another ILEC -- Bell Atlantic - West Virginia, Inc. (BA-WV). 5 ComScapebeganoperationsonOctober 28, 1997 and is currently providing service in portions of Kanawha County only. ComScape intends to extend customer access within Kanawha County and additional counties in the Charleston BTA in the future, and to seek designation as an ETC in additional areas in the future as well. Id., 73. 6. On January 13, 1998, Commission Staff (Staff) filed its Final Joint Staff Memorandum in this proceeding. Staff recommended that the Commission should deny ComScape s petition for the following reasons: 15
Staff asserted that there is no requirement that more than one carrier is designated an ETC in an area served by a RTC; Without the benefit of an enforceable tariff, Staff claims that it cannot be assured that ComScape s claim that it will be able to offer the services and functionalities required to be offered by an ETC ComScape s and promise that it wil not disconnect Lifeline service for non-payment of toll charges and that it will not collect a service deposit for initiation of Lifeline service if the applicant takes toll blocking should be set forth in an enforceable tariff; ComScape should be advertising such services and charges in media of general distribution at the time it files its petition and, by its own admission, ComScape does not currently meet the ETC advertising requirement; and The issue of designating multiple ETCs in RTC service areas should be dealt with in the Commission s universal service proceeding. On January 22, 1998, ComScape filed a request for a ten (10) day extension of time to file a reply to Staffs memorandum. Thereafter, ComScape filed its reply on January 30, 1998. 8. In its reply, ComScape amended its petition to limit its request for designation as an ETC to those portions of the Charleston BTA not served by a RTC. ComScape Reply, at 2-3. 9. Under TA96 and the FCC s rules, being designated an ETC is an essential requirement in order for common carriers of telecommunications services to be eligible to receive federal universal service support pursuant to 47 U.S.C. 254. 10. In order to be designated an ETC, a carrier must: (1) offer the services supported by federal universal service support mechanisms under 47 U.S.C. 254(c), either using its own facilities 16
or a combination of its own facilities and resale; and (2) advertise the availability of such services and the charges therefore, using media of general distribution. 47 U.S.C. 214(e)( l)(a) & (B). 1 1. The nine services that are supported by federal universal service support mechanisms are: (1) voice grade access to the public switch network; (2) local usage (i.e., a prescribed amount of minutes of use of exchange service provided free of charge to end users; (3) dual tone multi- frequency (DTMF) signaling or its functional equivalent; (4) single party service, or its functional equivalent; (5) access to emergency services, including access to 91 1 and E91 1 services, to the extent local governments in an eligible carrier s service area have implemented 91 1 or E9 1 1 systems; (6) access to operator services; (7) access to interexchange service; (8) access to directory assistance service; and (9) toll limitation (i.e. toll blocking) for qualifying low-income consumers. 47 C.F.R. 54.101(a)( 1)-(9). 12. Under TA96, [a]statecommission shall upon its own motion or upon request designate a common carrier that meets the requirements of [47 U.S.C. 214(e)( l)] as an eligible telecommunications carrier for a service area designated by the State Commission. 47 U.S.C. 214(e)(2) (emphasis added). If more than one carrier requests to be designated as an ETC for a service area, the state commission must designate such carrier as an ETC (assuming the carrier meets the requirements of 47 U.S.C. 214(e)( 1)) but, in the case of areas served by a rural telephone company, the state commission (but is not required to) designate more than one ETC per area served. Id. 17
13. The Commission adopts all recitals of fact otherwise set forth herein. CONCLUSIONS OF LAW 1. ComScape s December 1, 1997 petition requesting that the Commission designate ComScape as an eligible telecommunications carrier, pursuant to pursuant to 214(e) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, to be codified at 47 U.S.C. 15 1 et seq. (TA96), as modified on January 30, 1998, should be denied. ComScape s petition demonstrates that it does not yet meet the eligibility requirements necessary to be designated an ETC in any portion of its service area, whether that area is within an RTC s service area or not. 2. Only a common carrier may be designated an ETC and each ETC: must, throughout its service area: (1) offer the services that are supported by federal universal service support mechanisms... (2) offer such services using its own facilities or a combination of its own facilities and resale of another carriers services...; and (3) advertise the availability of and charges for such services using media of general distribution. FCC US Order, 134 (emphasis added). 3. The FCC refused to adopt regulations defining the term throughout a carrier s service area, concluding that: 18
[N]o further regulations are necessary- to define the term throughout. The dictionary definition -- in or though all parts; everywhere -- requires no further clarification. FCC US Order, 148 (emphasis added). 4. By its own representations, ComScape does not offer the federally supported services, using its own facilities or a combination of facilities and resale, and advertise such services and the charges therefor, throughout its service area and that reason alone is sufficient to warrant denial of its petition. 5. Although 47 U.S.C. 214(e) speaksintermsof state commission defined service areas, the Commission is precluded from defining service areas for wireless carriers such as ComScape. It is the FCC, through its licensing authority -- not a state commission -- which establishes service areas for wireless carriers. See 47 U.S.C. 332(c). 6. Section 332(c) provides, in pertinent part: Notwithstanding [47 U.S.C. 152(b) and 221(b)], no State or local government shall have any authority to regulate the entry of or the rates charged by any commercial mobile service or any private mobile service, except that this paragraph shall not prohibit a State from regulating other terms and conditions of commercial mobile services..... 47 U.S.C. 332(c)(3) (emphasis added). Any effort by the Commission to define the service area of a wireless carrier -- even for purposes of universal service -- would be preempted as state 19 SERVICE COMMISSION
regulation of a wireless carrier s entry into West Virginia pursuant to 47 U.S.C. 332(c)(3). 7. The Commission cannot, as a regulation of other terms and conditions allowed to states under 47 U.S.C. 332(c)(3), define a service area different than that established by the FCC for a wireless carrier -- even for the limited purpose of universal service. 8. The Commission cannot conclude that defining a wireless carrier s service area -- even for the limited purpose of determining a carrier s eligibility to receive universal service support -- would be considered a matter which falls within a state s jurisdiction or which is generally understood to be terms and conditions of service which states may continue to regulate. Congress intended the phrase to include such other matters as fall within a state s lawful authority, citing the House Report which explained the meaning of terms and conditions as follows: By terms and conditions, the Committee intends to include such matters as customer billing information and practices and billing disputes and other consumer protection matters; facilities siting issues (e.g. zoning); transfers of control; the bundling of services and equipment; and the requirement that carriers make capacity available on a wholesale basis or such other matters as fall within a state s lawful authority. This list is intended to be illustrative only and not meant to preclude other matters generally understood to fall under terms and conditions. Memorandum Opinion and Order, In the matter of Petition of Pittencrieff Communications. Inc. for Declaratory Ruling Regarding Preemption of the Texas Public Utility Regulatory Act of 1995, File No. WTB/POL 96-2 (Rel. Oct. 2, 1997), 16 (citation omitted). 20
9. While state commissions may define service areas for local, wireline carriers whose rates and entry is clearly subject to state jurisdiction, they may not define service areas for wireless carriers whose rates and entry are clearly not subject to state jurisdiction. Therefore, the Commission should utilize the FCC-defined service area of ComScape for determining whether it meets the requirements of 47 U.S.C. 214(e)(l) in order to be designated an ETC. This is the appropriate interpretation of 47 U.S.C. 214(e), despite the provision in subsection (e)(5) that service areas for ETCs will be defined by state commissions. 10. Staff s recommendation that the issue of designating more than one (1) ETC per RTC service area should be deferred to the Commission s universal service proceeding (Case No. 97-0103-T-GI) should be rejected. Section 214(e) and the designation of ETCs is relevant only to matters involving federal universal support pursuant to 47 U.S.C. 254 -- it is not relevant to issues regarding a universal service fund. While the Commission may want to address whether more than one carrier should be eligible for state universal service support in an RTC service area in its universal service proceeding, it cannot postpone consideration of such issues with respect to federal universal service support. 1 1. While ComScape strongly objected to Staff s recommendation that ComScape should be required to file a non-rate tariff with the Commission in order to allow Staff to monitor ComScape s service offerings and rates, the Commission require non-rate tariffs to be filed with it by wireless carriers as other terms and conditions of service the in State -- something permitted 21
under 47 U.S.C. 332(c)(3). Whether the Commission wants to require such informational filings is another matter for consideration some other time. 12. The Commission adopts all legal conclusions otherwise set forth herein. ORDER IT IS, THEREFORE, ORDERED that ComScape Telecommunications of Charleston, Inc. s December 1, 1997 petition requesting that the Commission designate ComScape as an eligible telecommunications carrier, pursuant to pursuant to 214(e) of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, to becodified at 47 U.S.C. et seq. (TA96), as modified on January 30, 1998, should be, and hereby is, denied. IT IS FURTHER ORDERED that the Commission s Executive Secretary serve a copy of this Order upon all parties of record by United States First Class Mail and upon Commission Staff by hand delivery. OTIS D. CASTO, COMMISSIONER CHARLOTTE R. LANE, CHAIRMAN 22