1 STATUTORY OR OTHER AUTHORITY: The Washington utilities and transportation commission takes action under Notice No. WSR 06-08-056, filed with the code reviser on March 31, 2006. The commission brings this proceeding pursuant to RCW 80.01.040, 80.04.160, 80.36.600, and 80.36.610.

     2 STATEMENT OF COMPLIANCE: This proceeding complies with the Administrative Procedure Act (chapter 34.05 RCW), the State Register Act (chapter 34.08 RCW), the State Environmental Policy Act of 1971 (chapter 43.21C RCW), and the Regulatory Fairness Act (chapter 19.85 RCW).

     3 DATE OF ADOPTION: The commission adopts this rule on the date this order is entered.

     4 CONCISE STATEMENT OF PURPOSE AND EFFECT OF THE RULE: RCW 34.05.325(6) requires the commission to prepare and provide to commenters a concise explanatory statement about an adopted rule. The statement must identify the commission's reasons for adopting the rule, a description of the differences between the version of the proposed rules published in the register and the rules adopted (other than editing changes), a summary of the comments received regarding the proposed rule changes, and the commission's responses to the comments reflecting the commission's consideration of them.

     5 In this docket, to avoid unnecessary duplication, the commission designates the discussion in this order, including appendices, as its concise explanatory statement, supplemented where not inconsistent by the staff memoranda preceding the filing of the CR-102 proposal and the adoption hearing. Together, the documents provide a complete by concise explanation of the agency actions and its reasons for taking those actions.

     6 REFERENCE TO AFFECTED RULES: This rule amends or adopts the following sections of the Washington Administrative Code:

Amend	WAC 480-120-399	Access charge and universal service reporting.
Adopt	WAC 480-123-020	Definitions.
Adopt	WAC 480-123-030	Contents of petition for eligible telecommunications carriers.
Adopt	WAC 480-123-040	Approval of petitions for eligible telecommunications carriers.
Adopt	WAC 480-123-050	Revocation of eligible telecommunications carrier designation.
Adopt	WAC 480-123-060	Annual certification of eligible telecommunications carriers.
Adopt	WAC 480-123-070	Annual certifications and reports.
Adopt	WAC 480-123-080	Annual plan for universal service support expenditures.
Adopt	WAC 480-123-999	Adoption by reference.

     7 PREPROPOSAL STATEMENT OF INQUIRY AND ACTIONS THEREUNDER: The commission filed a preproposal statement of inquiry (CR-101) on May 4, 2005, at WSR 05-10-100. The statement advised interested persons that the commission was considering entering a rule making to consider whether to adopt rules concerning commission designation of eligible telecommunications carriers (ETCs) pursuant to 47 U.S.C. § 214(e) and RCW 80.36.610, and annual certification concerning the use of federal universal support funds pursuant to 47 C.F.R. §§ 54.313 and .314 and WAC 480-120-311.¹

     8 ADDITIONAL NOTICE AND ACTIVITY PURSUANT TO PREPROPOSAL STATEMENT: The commission also informed persons of the inquiry into this matter by providing notice of the subject and the CR-101 to all persons on the commission's list of persons requesting such information pursuant to RCW 34.05.320(3). The commission gave notice to all local exchange companies, to the commission's list of persons interested in telecommunications and other agency rule makings, to the commission's list of telecommunication attorneys, and posted all information related to this inquiry on the commission's web site.

     9 NOTICE OF PROPOSED RULE MAKING: The commission filed a notice of proposed rule making (CR-102) on March 31, 2006, at WSR 06-08-056. By notice published at WSR 06-08-056, the commission scheduled this matter for oral comment and adoption at 1:30 p.m., Thursday, May 18, 2006, in the Commission's Hearing Room, Second Floor, Chandler Plaza Building, 1300 South Evergreen Park Drive S.W., Olympia, WA. The notice provided interested persons an opportunity to submit written comments to the commission.

     10 COMMENTERS (WRITTEN COMMENTS): The commission received written comments on the proposed rules from New Cingular Wireless PCS, LLC, Bellingham Cellular Partnership, Bremerton Cellular Telephone Company, Hood River Cellular Telephone Company, and Olympia Cellular Telephone Company (collectively Cingular), Public Counsel, Rural Cellular Corporation-United States Cellular Corporation (RCC-USCC), United Telephone Company of the Northwest (United), Washington Independent Telephone Association (WITA), and Verizon Northwest Inc. (Verizon). Summaries of written comments and commission responses are contained in Appendix A, shown below, and made part of, this order.

     11 RULE-MAKING HEARING: The commission considered the proposed rules for adoption at a rule-making hearing on Thursday, May 18, 2006, before Chairman Mark H. Sidran, Commissioner Patrick J. Oshie, and Commissioner Philip B. Jones, as previously noticed at WSR 06-08-056. The commission received oral comments from Cingular, Public Counsel, RCC-USCC, and Verizon. The oral comments tracked very closely the written comments previously provided to the commission. The commission's responses are contained in Appendix A.

     12 SUGGESTIONS FOR CHANGE REJECTED/ACCEPTED: Filed comments and oral comments suggested changes to the proposed rules. Each of those suggested changes and the commission's reason for rejecting or accepting the suggested changes are included in Appendix A.

     13 COMMISSION ACTION: After considering all of the information regarding this proposal, the commission finds and concludes that it should amend and adopt the rules as proposed in the CR-102 at WSR 06-08-056 with the changes described below.

     14 CHANGES FROM PROPOSAL: The commission adopts the proposal with the following changes from the text noticed at WSR 06-08-056:

     WAC 480-123-020 Definitions. The definition of "Service outage" is revised by removing the last sentence in the proposed definition that is unnecessary because the standard for reporting is addressed in WAC 480-123-070(2). The change does not impact the reporting requirements in WAC 480-123-070(2).

     In the definition of "Substantive," the word "specific" is removed as a modifier to "benefits" because some benefits will be general in nature. The change will improve the ability of the commission to evaluate all the benefits of the use of federal support so that the commission can reach conclusions for certification. Two other changes in the last sentence remove a redundancy from the definition.

     WAC 480-123-030 Contents of petition for eligible telecommunications carriers. Subsection (1)(e) is revised to reflect more accurately federal and state law requirements for advertisement of all applicable telephone assistance programs.

     Subsection (1)(f) - The revision is made so that subsection (1)(f) is consistent with subsection (1)(d).

     WAC 480-123-050 Revocation of eligible telecommunications carrier designation. The revision corrects a citation to a federal statute by adding the subsection number.

     WAC 480-123-060 Annual certification of eligible telecommunications carriers. Redundant phrases are removed from subsection (1).

     WAC 480-123-070 Annual certifications and reports. Subsection (1)(a) is revised to include the title of a particular federal form used by telephone companies as an example of one method of complying with the obligation to provide substantive information.

     Subsection (4) is revised to clarify an ambiguity concerning what information the commission wants to receive insofar as complaints are concerned.

     Subsection (7) is modified to be consistent with WAC 480-123-030 (1)(e).

     WAC 480-123-999 Adoption by reference. The revision corrects an internal reference to WAC 480-123-020.

     15 STATEMENT OF ACTION; STATEMENT OF EFFECTIVE DATE: After reviewing the entire record, the commission determines that WAC 480-120-399 should be amended and WAC 480-123-020, 480-123-030, 480-123-040, 480-123-050, 480-123-060, 480-123-070, 480-123-080, and 480-123-999 should be adopted to read as set forth in Appendix B, as rules of the Washington utilities and transportation commission, to take effect pursuant to RCW 34.05.380(2) on the thirty-first day after filing with the code reviser.

Comment 1: WAC 480-123-020

     WITA - The definition of "service outage" in WAC 480-123-020 contains an exception for planned service interruptions of less than five minutes between the hours of 12:00 midnight and 5:00 a.m. This implies that a planned outage of more than five minutes must be reported as a "service outage." As a practical matter, it may take more than five minutes to do a network cut over.

     Cingular - Proposed Rules defines "service outage" to exclude a planned outage with a duration of less than five minutes...Yet, the Proposed 070(2) requires an ETC to report "information on every local service outage thirty minutes or longer in duration experienced by the ETC"...the two sections appear to be inconsistent as no reporting is required for any outage lasting less than thirty minutes.

     Response - Cingular identifies an inconsistency that makes the last sentence of this definition unnecessary. Deleting this sentence does not impact reporting requirements established in WAC 480-123-070(2), and addresses WITA's comment as well.

Comment 2: WAC 480-123-020

     WITA - WITA suggests that the definition of "substantive" be amended to delete the word "specific." In many instances, only general benefits can be described.

     Response - WITA is correct that some expenditures will have only general benefits, and the Commission has made the change WITA suggests. Overall, a significant purpose of these rules is to permit an evaluation by the Commission of the use of federal support so that that the Commission can reach conclusions for certification. That purpose remains even after the change in this definition. Benefits to customers must still be described as required under WAC 480-123-070 (1)(b) and 080(2). When benefits are general, nothing specific can be said; however, some expenditures result in specific benefits and both the expenditure and its benefit(s) should be described. For example, installation of a DSL-capable switch to replace a non-DSL capable switch provides a specific benefit, even if it is a benefit that may be enjoyed by rate payers generally. Replacement of copper cable with fiber optic cable in one part of the ETCs network is another example of a specific investment with specific benefits, even though the benefit is shared by many customers. Such an investment and benefit should be described.

     The two additional changes to this definition are clarifications that do not alter the effect of the proposed rule.

Comment 3: WAC 480-123-030 (1)(e)

     Public Counsel - Public Counsel is concerned that the reference to the "Lifeline" program only and no other telephone assistance programs, in subsection (e) of this draft rule, is unduly narrow. For example, there is no mention of the Link-Up program, Tribal programs (Tribal Lifeline and Tribal Link-Up), or the Washington Telephone Assistance Program (WTAP). In Washington, the federal Lifeline discount is offered through WTAP, and thus WTAP is essentially the Lifeline program in our state. All ETCs in the state, including wireless ETCs, must offer WTAP, pursuant to WAC 480-122-020. Public Counsel recommends that this subsection be clarified to refer to all assistance programs, including WTAP and federal assistance programs.

     Response - ETCs are required to advertise the availability of all applicable federal telephone assistance discounts. 47 C.F.R. 54.400-417. While the proposed rule does not exclude any obligations of ETCs simply by stating only one example of the advertising obligations (Lifeline), the Commission has modified this rule to remove the possibility that it would be misread as limiting the obligation to only one program.

Comment 4: WAC 480-123-030 (1)(f)

     WITA - Wireless petitioners are asked to provide a map of the proposed service areas with "shading to indicate where the carrier provides commercial mobile radio service signals." WITA comments that the standard contained in Subsection (1)(f) is vague. WITA suggests that the standard would be more definite if it read as follows: "shading to indicate where the carrier provides commercial mobile radio service signals sufficient to provide reliable voice services." As an alternative, WITA suggests that the rule could incorporate a signal strength criterion. For example, it is fairly well agreed within the wireless industry that a signal strength of -87 dBm will provide sufficient reliability for voice-grade service, although there will still be a number of dropped calls. A more reliable standard is -79 dBm. Thus the rule could read: "shading to indicate where the carrier provides commercial mobile radio service signals of at least -87 dBm (-79 dBm)."

     Response - The modifications the Commission has made to the proposed rule are consistent with subsection (d) of this section that requires "a substantive plan of the investments to be made with initial federal support during the first two years in which support is received..." Without this change a petitioner could erroneously conclude that it should not place on the required map the locations of planned cell sites as part of the petition.

     In response to WITA's suggestion the Commission's modification to the proposed rule requires electronic maps that show where wireless ETCs provide, and plan to provide, a signal. Proposed rule 480-123-080(3) requires wireless ETCs to up-date maps. The combination of the proposed rules will result in the UTC receiving maps that demonstrate changes in signal coverage sufficient to determine if a wireless ETC's network is expanding or contracting. We decline to require the more detailed information suggested by WITA. We have the authority to seek more detail if needed to evaluate the reports and certifications made under these rules.

Comment 5: WAC 480-120-030 (1)(g)

     Cingular - The Commission applies rigid requirements to ETCs when the FCC specifically rejected this requirement in its recent decision...the prescriptive battery back-up requirements for cell sites and switch generators are unnecessary and unwarranted. Instead of adopting the requirements in the Proposed Rule, if the Commission believes that a rule is necessary in this area it should mirror the federal requirements. (Cingular made an essentially similar statement at the adoption hearing.)

     Response - The substantive requirements were developed from comments made by wireless carriers in this rulemaking proceeding. The requirements are minimal and reflect industry practices as described to the Commission during a rulemaking workshop.

     At the adoption hearing, in response to a question, Cingular acknowledged that Cingular has not developed a company standard for the minimum number of hours of battery back up. We decline to make the change recommended by Cingular because we are concerned that on this topic a "reasonable" standard could result in no standard at all.

Comment 6: WAC 480-123-030 (1)(h)

     Cingular - The Proposed Rules require wireless ETCs to demonstrate that they will comply with the CTIA Consumer Code for Wireless Service ("CTIA Code"). (480-123-030 (1)(h)) Proposed Rule 480-123-999(2) adopts the version of the CTIA Code in effect on September 9, 2003. The CTIA Code was intended to be a living document that can be revised and updated as necessary to address changing consumer issues and needs. To ensure that the Proposed Rules reflect the current version of the CTIA Code, it is recommended that subsection (2) of this proposed rule be deleted or the words "as may be amended" be added to this section.

     Public Counsel - Petitioners should be required to provide service quality data as part of the petition. Carriers, including wireless carriers, gather data on the quality of their service and they should provide it with their petition.

     Response - Washington's jurisprudence concerning non-delegation prevents the Commission from adopting a standard that can be changed by the action of a private organization. The Commission can change, through rulemaking, the version of the CTIA code to which ETCs must adhere. The Commission makes changes every year to rules that refer to international and organizational standards, such as ISO and IEEE standards. For the foregoing reasons, we decline to make the change requested by Cingular.

     In response to Public Counsel, service quality is not an issue for designation; it is an issue for certification. Upon designation, ETCs must provide service consistent with the Commission's rules or the CTIA code.

Comment 7: WAC 480-123-040

     WITA - There is no substance to describe what constitutes the public interest. In the FCC's "ETC Designation Order," the FCC described in detail what it meant by the public interest for ETC designation purposes...WITA suggests..."...and the designation is in the public interest as required by 47 U.S.C. §214 (e)(2)."

     It is also important to keep in mind that the FCC found that a public interest test applies both for designation as an ETC in non-rural incumbent areas and in rural incumbent areas. However, the FCC determined that the application of the public interest test is more rigorous in rural incumbent service areas. It is not clear how draft WAC 480-123-040 treats this distinction.

     Response - The Commission determines the public interest when a petition is before the Commission at an open meeting. The public interest often depends on facts and circumstances associated with each petition. Because the federal statute does not define the public interest, and because the Federal Communications Commission's (FCC) interpretation of the public interest is not binding on state commissions, we prefer to approach public interest determinations on a case-by-case basis. Accordingly, we decline to make any change to the rule.

Comment 8: WAC 480-123-050

     United - Appreciates change from draft rule; but believes the rule should be more specific about what behavior could result in revocation, suspension, or modification.

     WITA - ...the only standards that can be interpreted as a requirement in Section 214(e) are found in Subsection (e)(1). Thus, WITA suggests the language read as follows: "...if it determines that the ETC has failed to comply with the requirements of 47 U.S.C. §214 (e)(1)...."

     The ...Commission may revoke, suspend or modify a designation based upon a determination that the ETC has failed to comply with "any other condition imposed by the Commission." There are significant due process problems inherent in such a vague standard. Is this reference meant to incorporate conditions imposed by the Commission in the order granting designation? Is it meant to refer to the standards contained in Sections .070 and .080? As written, the rule is subject to challenge as vague and unenforceable.

     Response - The Commission accepts WITA's suggestion and adds "(1)" to the citation of the statute because it is only in subsection (1) that requirements are placed on ETCs.

     We disagree that the standard is vague. The "any other condition imposed by the Commission" language encompasses the requirements of these rules and the designation order. The requirements of these rules are not vague, nor will conditions imposed by the designation order be vague. We decline to make additional changes to the section.

Comment 9: WAC 480-123-060(1)

     WITA - It is WITA's understanding ...the Commission acknowledges that it has no role in the certification process for IAS and ICLS.

     WITA also notes that there is at least facially a conflict between this section and proposed WAC 480-123-050 as to where the burden of proof lies. WAC 480-123-060(2) seems to place the burden of proof on the ETC. However, for purposes of modification or revocation of an ETC designation, the burden of proof seems to lie with the Commission under WAC 480-123-050. Perhaps the best way to reconcile these two sections is that under WAC 480-123-060(2), the ETC has the obligation to present the prima facia case, but the burden of proof for any action by the Commission under WAC 480-123-050 lies with the Commission.

     Response - The Commission does not certify the use of IAS or ICLS to the FCC.

     We decline to make changes to the rules related to this topic because burden of proof does not need to be addressed in these rules.

Comment 10: WAC 480-123-070

     RCC & USCC - The Commission will be in a much better position to ensure that all ETCs will be held accountable for their use of funds by requiring all ETCs to report on all types of support... carefully crafted rules that strike an appropriate balance between the need for accountability versus creating undue and unnecessary burdens on ETCs.

     Verizon - The admittedly unnecessary requirements for IAS-only carriers conflict with at least two of the directives of Executive Order 97-02. "Need. Is the rule necessary to comply with the statutes that authorize it?" EO 97-02, § I(1). On its face, a rule that is designed for an admittedly unneeded certification cannot be "necessary to comply" with the federal USF program involved in this docket. Second, the rule conflicts with an additional directive, that of "coordination." Washington regulatory agencies are directed to "consult with and coordinate with other jurisdictions that have similar regulatory requirements when it is likely that coordination can reduce duplication and inconsistency." EO 97-02, § I(5). Here, any certification by the Washington Commission concerning IAS usage is inherently duplicative, because carriers must make appropriate certifications directly to the FCC and FCC regulations have no requirement for the state to make such a certification.

     Moreover, the Commission lacks the fundamental authority to adopt rules for unnecessary certifications. This Commission has the authority to "take actions" as "permitted or contemplated for a state commission" under the federal Telecommunications Act. RCW 80.36.610(1). However, that statute is emphatic on the limitation placed on the Commission: The "Commission's authority to either establish a new state program or adopt new rules to preserve and advance universal service under Section 254 of the federal act is limited to actions expressly authorized by RCW 80.36.600." Id. RCW 80.36.600 does not impliedly, much less "expressly," authorize this Commission to require reports to support a certification that is not necessary under federal law. While the Commission might find information it proposes to have reported interesting, Washington law is explicit: this Commission has only that authority granted to it by the legislature, and mere interest unaccompanied by regulatory duty does not supplement that authority. WITA v. TRACER, 75 Wn. App. 356, 880 P.2d 50 (1994).

     WITA - WITA expresses its review of the rule as follows: the only certification requirements that must be submitted under penalty of perjury relate to proposed WAC 480-123-070 (5), (6) and (7), but not to the reports required in other subsections of the rule. If WITA is incorrect in its interpretation, WITA requests clarification as to specific other certification requirements.

     Response - Verizon misquotes RCW 80.36.610(1) with an effect that is misleading. The statute refers to "section 254(f)," not to all of 47 U.S.C. § 254. The FCC order that resulted in these proposed rules does not reference in its body or its notes 254(f). The Commission is taking an action "contemplated" for a state commission and the statutory limitation cited by Verizon does not apply.

     Non-rural incumbents, rural incumbents, and wireless carriers are all eligible to receive a substantial amount of federal support for which the FCC requires ETC rather than state commission certification. The majority of federal support does not require state certification, although state commissions are responsible for designating ETCs with regard to all types of universal service support. Consistent with the comments of RCC-USCC, we require reporting from all ETCs on all federal support so that we will have a complete understanding of the use of federal support in Washington. We consider it necessary to collect this information in order to fulfill our oversight role. In its Report and Order In the Matter of Federal-State Joint Board on Universal Service, CC Docket No. 96-45, FCC 05-06 (March 17, 2005), the FCC stated at paragraph 71 that it "urge[d] state commissions to apply the reporting requirements to all ETCs, not just competitive ETCs. In addition, state commissions may require the submission of any other information that they believe is necessary to ensure that ETCs are operating in accordance with applicable state and federal requirements."

     Executive Order (EO) 97-02 does not preclude adoption of the rule. Section I of EO 97-02 contains a list of criteria that were to be used to review rules in existence when the order was adopted. In addition to "need," the rule is also concerned with effectiveness and efficiency, clarity, intent and statutory authority, coordination, cost, and fairness. EO-97-02 does not prohibit adoption of a rule even if the rule is at odds with one or another factor. The FCC encouraged states to adopt rules in coordination with the FCC to promote the efficient and effective use of universal service funds. The proposed rule is consistent with the FCC's intent, with state law and complies with EO 97-02.

     The proposed rule does not duplicate the FCC's certification requirement for IAS. The FCC's certification requirement does not require recipients of IAS to submit information about the effective use of federal support or the planned use of federal support. The FCC requires only that a recipient of IAS certify that the funds are used for the purposes intended under law. In contrast, the proposed rule requires information the Commission can use to determine how federal support is used to benefit customers in Washington.

     RCW 80.36.600 does not limit our authority granted in 80.36.610(1). The legislature enacted 80.36.600 in 1998 in anticipation of receiving a proposed plan from the Commission for the collection and distribution of state universal service support with the purpose of "minimizing implicit sources of support and maximizing explicit sources of support that are specific, sufficient, competitively neutral, and technologically neutral to support basic telecommunications services for customers of telecommunications companies in high-cost locations." The adopted rules do not establish a state universal service fund and RCW 80.36.600 does not apply.

     WITA is correct that certifications and reports are submitted differently.

Comment 11: WAC 48-123-070(1)

     Verizon - The IAS that Verizon receives is simply interstate revenue...used by Verizon to cover its operational costs in Washington... That is all the company could report to the Commission, and the Commission is already aware of this fact; it does not need a new report.

     WITA - The draft rule appears to require incumbent ETCs to provide a description of the investment and expenses from the immediately prior year

A substantial amount of work by a rural telephone company goes into preparation of what is known as the NECA-1 Report. For 2006, this report is due July 31, 2006. It will contain a report of investment made and expenses incurred in 2005. Rather than having to prepare two separate reports (one to NECA and one to the Commission), WITA proposes that the second paragraph of WAC 480-123-070 (1)(a) be amended to add the following language at the end of the paragraph: "Provided, however, submission of the ETC's NECA-1 Report shall be deemed to satisfy the requirement of this paragraph."

     Response - IAS is not interstate revenue; it is explicit support from the high-cost fund of the federal universal service fund. Because it is universal service support, Verizon must spend $17 million in IAS for the purposes stated in 47 U.S.C. 254 and certify to the FCC that it spends the funds only for the intended purposes.

     Verizon's statement of benefits for customers may include maintenance of service quality and network capacity, and may not include plant investment. If, however, the funds should be spent in a different manner in the future, the required report will permit the Commission to know how the funds are spent, as anticipated by the FCC.

     We have modified subsection (1)(a) of this section to acknowledge the NECA-1 report provides a substantive description of investment and expenses. We also note that subsection (1)(b) of this section requires a substantive description of benefits to consumers.

Comment 12: WAC 480-123-070(2)

     Cingular - The reporting requirements in the Proposed Rules are now inconsistent with the requirements in both the FCC's ETC Order and the FCC's Outage Reporting Order as they do not set forth any threshold for the number of people affected and conceivably require a report on any degradation in service that lasts over thirty (30) minutes in duration even if it were to affect only one customer…... The Commission may obtain access to all carriers' outage reports filed with the FCC through the federal Department of Homeland Security

     Response - This rule uses the list of factors found in ¶ 69 of the FCC's ETC order. Wireless carriers have stated elsewhere that with mobile customers one can never know how many customers are affected. For that reason, the proposed rule does not include a minimum threshold of customers affected before a report is required; thirty minutes is a threshold that will reduce the number of outages that must be reported. Cingular is correct that currently outage reports may be obtained from other agencies. However, the purpose of requiring an annual report is to permit easy year-to-year comparisons. Reporting by companies to the Commission ensures we receive the information in a preferred format without depending upon whether the information is available from the FCC or other agencies.

Comment 13: WAC 480-123-070(4)

     Public Counsel - strongly supports subsection (4); however... limiting the scope of the inquiry only to complaints related to "local service" in an industry with many complex service options and varied descriptions of these options could too easily exclude complaints that are nevertheless related to local service or the Commission's service quality standards. For example, a customer may have DSL billing complaint, and...is passed around from person to person ...the complaint may be categorized as a DSL complaint, even though it is a dual complaint that also addresses customer service. We therefore recommend that all of the complaint information from the FCC and the Attorney General's office be provided to the Commission, and the Commission can then determine what data is relevant.

     WITA - In WAC 480-123-070(4), WITA suggests that the word "known" be inserted in front of the word "complaints" in the third line of the rule. This is offered for clarification purposes.

     Response - Public Counsel's comment makes apparent that the addition of the clause "concerning local service related issues" to the language originally suggested during the CR-101 inquiry phase created an unintended ambiguity concerning what information the Commission wants to receive insofar as complaints are concerned. By deleting that clause, we remove the ambiguity and clarify that the report must reflect all complaints by the ETC's customers made to the FCC or the AG.

     The clarification suggested by WITA is unnecessary; the proposed rule's requirements are clear in this respect and consist of all complaints made by customers to the FCC or the Attorney General.

Comment 14: WAC 480-123-070(5)

     Verizon - This draft rule would require certification of substantial compliance with the service quality standards set forth in draft WAC 480-123-030... Verizon already reports monthly to the Commission under those rules, so there would be no point in having it re-submit an additional annual certification.

     WITA - It is WITA's interpretation that the certification requirement under WAC 480-123-070(5) for wireline carriers relates to WAC 480-120-401, 402, 411, 412, 414, 438, 439, 440 and 450. Again, if WITA's interpretation is incorrect, then further discussion is warranted.

     Response - Verizon confuses reporting with certification. The certification is a guarantee of compliance. The required certification is one sentence long. Verizon's monthly reporting will satisfy the certification requirement if each of twelve monthly reports is accompanied by a certification. In the alternative, Verizon may comply through one annual certification.

     WITA provides a short list of service quality rules from WAC 480-120. The requirement in the proposed rule is to comply with the "applicable consumer protection and service quality standards" of Chapter 480-120 WAC, not only the list provided in the comments on the rule.

Comment 15: WAC 480-123-070(6)

     Verizon - This draft rule would require Verizon to "certify" that it has the ability to function in emergencies ...As the Commission staff is well aware, Verizon switching facilities are equipped with extensive back-up generation and battery equipment...There is no need for an additional report.

     WITA - The requirement is redundant since WAC 480-120-411 is included within the certification requirements of WAC 480-123-070(5) and...it is over-broad in that the only emergency standard in the rule is contained in WAC 480-120-411(3)....other subsections of WAC 480-120-411 do not directly relate to emergency performance...For clarification and because the phrase "continued adherence to" in proposed WAC 480-123-070(6) causes confusion and does not appear to add substance to the rule, WITA suggests the deletion of that language.

     Response - Verizon again confuses reporting with certification. The certification works as a guarantee of on-going compliance with the existing rule.

     The certification relates back to WAC 480-123-030 (1)(g) and its reference to WAC 480-120-411. WITA concludes WAC 480-120-411 is included as a service quality rule and that the certification under 070(5) (compliance with service quality standards), above, includes a certification that ETCs comply with 480-120-411. WAC 480-120-411 does not refer to quality of service; it concerns maintaining equipment and facilities in good order to provide service (presumably good quality service), and has a requirement for emergency power facilities. Because WAC 480-120-411 concerns the ability to provide service, not the quality of service or a lack of service altogether, the separate certification is neither overbroad nor redundant.

Comment 16: WAC 480-123-070(7)

     Verizon - The Commission should not adopt any particular requirement for advertising relating to Lifeline and Link-Up programs at this time. The FCC has already initiated a public inquiry ...one item that will be considered by the FCC is whether avenues other than advertising are more effective ways of informing potential Lifeline and Link-Up customers about the availability of those programs...In the absence of any showing that the advertising or outreach is somehow a problem, this Commission should not impose a certification requirement that the FCC did not. The FCC made no suggestion that certification of advertising should be required, FCC Order 05-46, ¶ 69, and in doing so expressly weighed the benefits of reporting against the administrative burdens of reporting. Id., ¶ 70.

     Public Counsel - ...Carriers resoundingly indicated that they already take part in intensive outreach efforts, yet these efforts still only garner a fraction of the eligible participants…...This rulemaking process has begun an important conversation...about...the issues that complicate outreach to eligible consumers. We believe that this underserved population would benefit significantly if the Commission were to continue this conversation formally in the form of an advisory group...

     WITA - WITA also offers two clarifications to the language in WAC 480-123-070(7). First, WITA suggests inserting the word "its" in front of "Lifeline service" in the third line of the proposed rule. Second, WITA suggests adding "within its ETC service area" at the very end of the rule. These two minor changes help the rule make a more definitive statement of the proposed requirements.

     Response - The proposed rule is modified to be consistent with proposed rule 480-123-030 (1)(e) and WITA's recommended clarifications are accepted. That subsection incorporates the federal standard for ETCs with respect to advertising and the rule and standard are therefore consistent with the federal standard. The FCC order on ETC designation did not address this topic because the FCC did not need to duplicate its existing advertising standard. Incorporating the 030 (1)(e) standard in this certification requirement applies the standard for new ETCs to existing ETCs.

Comment 17: WAC 480-123-080(1)

     Verizon - Just as the proposed report of how Verizon's IAS revenues were spent, discussed above, is unjustified, requiring Verizon to also submit a year's forecast of such expenditures would make no sense. The Commission recently recognized this fact when it repealed its former rule requiring Verizon, Qwest, Century Tel and United Tel to file annual budgets. See General Order No. R-525 in Docket UT-051261 (12/7/05). As Commission Staff noted in that docket, the requirement to file budget reports may be obsolete "and the agency can fulfill its responsibility to ensure fair, just and reasonable rates without this reporting requirement." Staff Memo August 31, 2005.

     WITA - A company does not know in July where additional plant may be needed...One exception where information can be provided is when the company is in the midst of a planned RUS financed project....Another practical issue to be considered is that for small rural telephone companies investment is often a cyclical process....If the company is not making any substantial investments in 2007, is it in violation of the Commission's standards for ETC certification? What useful information will be provided to the Commission under the draft rule for an evaluation of cyclical investment for a rural telephone company? ...WITA proposes that the filing of the NECA-1 form on an annual basis will provide a database for the Commission to track how a company is performing over time in terms of its investment and expenses.

     Response - The issue here is not the same as the issue with annual budgets. Rate setting was the issue in the annual budget rulemaking, while these rules concern the use of federal support. The FCC has expressed concerns to states about the sustainability of the federal universal service fund and how support funds are used. This proposed rule is consistent with the FCC's recommendations to state commissions.

     WITA states that many companies will not have information in July about planned expenditures for the following year. While ETCs may forecast on different schedules, each ETC will be in a position to state what it reasonably can about anticipated expenditures.

Comment 18: WAC 480-123-080(2)

     WITA - There is no reason to require a "substantive description of how those investments and expenditures will benefit customers," when there is another clause in the sentence that requires submission of a "substantive" plan ...suggested revision:

     WAC 480-123-080(2): The report must include a substantive plan and description of investments and expenditures to be made with the federal high cost fund support; provided, however, this reporting requirement shall be deemed satisfied for rural telephone companies by filing of the NECA-1 reports as set forth above.

     Response - "Substantive" is defined in WAC 480-123-020. This subsection of the proposed rule requires a report on two topics and it requires that each topic be described substantively. While the NECA-1 report provides a record of past expenditures, it does not provide even a limited statement about planned investment and expenditure. We have acknowledged, immediately above, that some very small companies will have less to report than those with more planning capability.

Comment 19: WAC 480-123-080(3)

     Cingular - Proposed Rule 480-123-080(3) requires ETCs to file maps in .shp format as defined in 480-123-020. While the Commission may very well want to require ETCs to file maps, the Commission should not require that the maps be filed utilizing a certain type of software...the proposed rule unnecessarily locks the Commission and carriers into a particular technology that may or may not continue to be used in the future...the .shp mapping format requirement in the Proposed Rules should be deleted.

     Response - The .shp is the file extension used by the dominant GIS software provider and most all other GIS software permits users to export files in .shp format. The Commission must be able to read the electronic maps and uses software that reads .shp maps. We decline to make the requested change.

¹ The CR-101 contained the reference to WAC 480-120-311 along with a complete description of the topic as indicated in this paragraph. WAC 480-120-311 was recodified as WAC 480-120-399 on March 31, 2005. Subsequent notices, requests for comments, and the CR-102 referred to WAC 480-120-399.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 8, Amended 0, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     17 (1) The commission amends and adopts WAC 480-120-399, 480-123-020, 480-123-030, 480-123-040, 480-123-050, 480-123-060, 480-123-070, 480-123-080, and 480-123-999 to read as set forth in Appendix B, as rules of the Washington utilities and transportation commission, to take effect on the thirty-first day after the date of filing with the code reviser pursuant to RCW 34.05.380(2).

     18 (2) This order and the rules set out below, after being recorded in the register of the Washington utilities and transportation commission, shall be forwarded to the code reviser for filing pursuant to chapters 80.01 and 34.05 RCW and chapter 1-21 WAC.

     DATED at Olympia, Washington, June 27, 2006.

Washington state utilities and transportation commission

Mark H. Sidran, Chairman

Patrick J. Oshie, Commissioner

OTS-8726.1

AMENDATORY SECTION(Amending Docket No. A-021178 and TO-030288, General Order No. R-518, filed 2/28/05, effective 3/31/05)

WAC 480-120-399   Access charge and universal service reporting.   (((1))) Intrastate mechanism reporting.

     (((a))) (1) Until legislation creating a new universal service fund is adopted and effective and commission rules to implement the legislation are adopted and effective, each Class A company in the state of Washington and the Washington Exchange Carrier Association, must provide annually:

     (((i))) (a) The actual demand units for the previous calendar year for each switched access tariff rate element (or category of switched access tariff rate elements, both originating and terminating) it has on file with the commission.

     (((ii))) (b) Primary toll carriers (PTCs) must file, in addition to the information required in (a)(((i))) of this subsection, the annual imputed demand units for the previous calendar year that the company would have had to purchase from itself if it had been an unaffiliated toll carrier using feature group D switched access service (including intraLATA and interLATA, both originating and terminating demand units). For purposes of this subsection, a PTC means a local exchange company offering interexchange service(s) to retail customers using feature group C switched access service for the origination or termination of any such service(s).

     (((b))) (2) The report containing the information required in (((a) of this)) subsection (1) of this section must be filed by July 1 of each year.

     (((c))) (3) Each company providing information required by this section must include complete work papers and sufficient data for the commission to review the accuracy of the report.

     (((2) Annual state certification requirements for interstate (federal) mechanism. Each eligible telecommunications carrier (ETC) in Washington receiving federal high-cost universal service support funds must provide the following to the commission not later than August 31 of each year:

     (a) A certification that, during the calendar year preceding the year in which certification is made, the ETC provided the supported services required by 47 U.S.C. § 214(e) and described in the commission order granting it ETC status;

     (b) A certification that, during the calendar year preceding the year in which certification is made, the ETC advertised the availability of supported services and the charges for them as required by 47 U.S.C. § 214(e) and as described in the commission order granting it ETC status;

     (c) A certification that funds received by it from the federal high-cost universal service support fund will be used only for the provision, maintenance, and upgrading of the facilities and services for which the support is intended;

     (d) The amount of all federal high-cost universal service fund support received for the calendar year preceding the year in which the filing must be made (this includes, but is not limited to, high cost loop support or "HCL," local switching support or "LSS," long term support or "LTS," interstate access support or "IAS," and interstate common line support or "ICLS");

     (e) The loop counts on which federal high-cost universal service support was based for support received during the calendar year preceding the year in which the filing must be made;

     (f) The certifications required in (a) through (e) of this subsection must be made in the same manner as required by RCW 9A.72.085.))

[Statutory Authority: RCW 80.01.040, 80.04.160, 81.04.160 and 34.05.353. 05-06-051 (Docket No. A-021178 and TO-030288, General Order No. R-518), § 480-120-399, filed 2/28/05, effective 3/31/05.]

OTS-8727.2

     "Applicant" means any person applying to an ETC for new service or reconnection of discontinued service.

     "Eligible telecommunications carrier" and "ETC" mean a carrier designated by the commission as eligible to receive support from federal universal service mechanisms in exchange for providing services supported by federal universal service mechanisms.

     "Facilities" means for the purpose of WAC 480-123-030 (1)(b) any physical components of the telecommunications network that are used in the transmission or routing of the services that are supported by federal universal service mechanisms.

     ".shp format" means the format used for creating and storing digital maps composed of shape files capable of being opened by the computer application ArcGIS™.

     "Service outage" means a significant degradation in the ability of an end user to establish and maintain a channel of voice communications as a result of failure or degradation in the performance of a communications provider's network.

     "Substantive" means sufficiently detailed and technically specific to permit the commission to evaluate whether federal universal service support has had, or will have, benefits for customers. For example, information about investments and expenses that will provide, increase, or maintain service quality, signal coverage, or network capacity, and information about the number of customers that benefit, and how they will benefit is sufficient to enable evaluation.

[]

     (a) A description of the area or areas for which designation is sought;

     (b) A statement that the carrier will offer the services supported by federal universal service support mechanisms throughout the area for which it seeks designation, 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 ETC);

     (c) A description of how it will provide each supported service;

     (d) A substantive plan of the investments to be made with initial federal support during the first two years in which support is received and a substantive description of how those expenditures will benefit customers;

     (e) A statement that the carrier will advertise the availability of services supported by federal universal service mechanisms, including advertisement of applicable telephone assistance programs, such as Lifeline, that is reasonably calculated to reach low-income consumers not receiving discounts;

     (f) For wireless petitioners, a map in .shp format of proposed service areas (exchanges) with existing and planned locations of cell sites and shading to indicate where the carrier provides and plans to provide commercial mobile radio service signals;

     (g) Information that demonstrates its ability to remain functional in emergency situations including a description of how it complies with WAC 480-120-411 or, for a wireless carrier, information that demonstrates it has at least four hours of back up battery power at each cell site, back up generators at each microwave hub, and at least five hours back up battery power and back up generators at each switch; and

     (h) Information that demonstrates that it will comply with the applicable consumer protection and service quality standards of chapter 480-120 WAC or, for a wireless carrier, a commitment to comply with the Cellular Telecommunications and Internet Association's (CTIA) Consumer Code for Wireless Service. Information regarding the version of the CTIA code adopted and where to obtain it is set forth in WAC 480-123-999.

     (2) A company officer must submit the petition in the manner required by RCW 9A.72.085.

[]

[]

[]

     (2) The commission will certify an ETC's use of federal high-cost universal service fund support, pursuant to 47 C.F.R. §§ 54.307, 54.313, or 54.314 only if the ETC complies with the requirements in WAC 480-123-070, and the ETC demonstrates that it will use federal high-cost funds only for the provision, maintenance, and upgrading of facilities and services for which the support is intended through the requirements of WAC 480-123-080.

[]

     (1) Report on use of federal funds and benefits to customers.

     (a) For an ETC that receives support based only on factors other than the ETC's investment and expenses, the report must provide a substantive description of investments made and expenses paid with support from the federal high-cost fund.

     For ETCs that receive any support based on the ETC's investment and expenses, the report must provide a substantive description of investment and expenses, such as the NECA-1 report, the ETC will report as the basis for support from the federal high-cost fund.

     (b) Every ETC must provide a substantive description of the benefits to consumers that resulted from the investments and expenses reported pursuant to (a) of this subsection.

     (2) Local service outage report. ETCs not subject to WAC 480-120-412 and 480-120-439(5) are required to report local service outages pursuant to this subsection. The report must include detailed information on every local service outage thirty minutes or longer in duration experienced by the ETC. The report must include:

     (a) The date and time of onset and duration of the outage;

     (b) A brief description of the outage and its resolution;

     (c) The particular services affected, including whether a public safety answering point (PSAP) was affected;

     (d) The geographic areas affected by the outage;

     (e) Steps taken to prevent a similar situation in the future; and

     (f) The estimated number of customers affected.

     (3) Report on failure to provide service. ETCs not subject to WAC 480-120-439 are required to report failures to provide service pursuant to this subsection. The report must include detailed information on the number of requests for service from applicants within its designated service areas that were unfulfilled for the reporting period. The ETC must also describe in detail how it attempted to provide service to those applicants.

     (4) Report on complaints per one thousand handsets or lines. The report must provide separate totals for the number of complaints that the ETC's customers made to the Federal Communications Commission, or the consumer protection division of the office of the attorney general of Washington. The report must also generally describe the nature of the complaints and outcome of the carrier's efforts to resolve the complaints.

     (5) Certification of compliance with applicable service quality standards. Certify that it met substantially the applicable service quality standard found in WAC 480-123-030 (1)(h).

     (6) Certification of ability to function in emergency situations. Certify that it had the ability to function in emergency situations based on continued adherence to the standards found in WAC 480-123-030 (1)(g).

     (7) Advertising certification, including advertisement on Indian reservations. Certify it has publicized the availability of its applicable telephone assistance programs, such as Lifeline, in a manner reasonably designed to reach those likely to qualify for service, including residents of federally recognized Indian reservations within the ETC's designated service area. Such publicity should include advertisements likely to reach those who are not current customers of the ETC within its designated service area.

[]

     (a) The planned use of federal support related to Washington state that will be received during the period October 1 of the current year through the following September; or

     (b) The planned investment and expenses related to Washington state which the ETC expects to use as the basis to request federal support from any category in the federal high-cost fund.

     (2) The report must include a substantive plan of the investments and expenditures to be made with federal support and a substantive description of how those investments and expenditures will benefit customers.

     (3) As part of the filing required by this section to be submitted in 2007, and at least once every three years thereafter, a wireless ETC must submit a map in .shp format that shows the general location where it provides commercial mobile radio service signals.

[]

     (1) The Cellular Telecommunications and Internet Association's (CTIA) Consumer Code for Wireless Service.

     (2) The commission adopts the version in effect on September 9, 2003.

     (3) This publication is referenced in WAC 480-123-020 (contents of petition for eligible telecommunications carriers).

     (4) Copies of the CTIA Consumer Code for Wireless Service are available at http://www.ctia.org/wireless_consumers/consumer_code/.

[]

© Washington State Code Reviser's Office