200402132nd Mott Motion to Take Official Notice.pdf

Morgan W. Richards, ISB No. 1913
MOFFATT, THOMAS, BARRETT, ROCK &
FIELDS , CHARTERED
101 S. Capitol Boulevard, 10th Floor
Post Office Box 829
Boise, Idaho 83701
Telephone: [phone]
Facsimile: [phone]
mwr(illmoffattcom
Attorneys for Citizens Telecommunications
Company of Idaho
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Conley E. Ward, ISB No. 1683
GIVENS PURSLEY LLP
601 W. Bannock Street
O. Box 2720
Boise, Idaho 83701-2720
Telephone: [phone]
Facsimile: [phone]
Attorneys for Idaho Telephone Association
15-881.19
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE PETITION OF
IAT COMMUNICATIONS , INc., d.
NTCH-IDAHO, INC. OR CLEAR TALK
FOR DESIGNATION AS AN ELIGIBLE
TELECOMMUNICATIONS CARRIER
Case No. GNR-03-
IN THE MATTER OF THE APPLICATION
OF NPCR, INC. d.a. NEXTEL PARTNERS
SEEKING DESIGNATION AS AN
ELIGIBLE TELECOMMUNICATIONS
CARRIER
Case No. GNR-03-
SECOND JOINT MOTION TO TAKE
OFFICIAL NOTICE
The Idaho Telephone Association ("IT A") and Citizens Telecommunications
Company ofIdaho ("Citizens ) request that the Commission take official notice of the attached
Order issued by the Nebraska Public Service Commission ("NPSC") in Case No. C-2932
, "
In the
SECOND JOINT MOTION TO TAKE OFFICIAL NOTICE - 1 BOI MT2:537750.
Matter of the Application of Amended NPSC, Inc. dba Nexte1 Partners . In support of this
Motion, Petitioners state as follows:
Rule 263.01(a)(2) of the Commission s Rules of Procedure provides that
the Commission may take official notice of the orders of "any other
regulatory agency, state or federa1."
Evidentiary hearings in this matter concluded on December 11 2003, and
the parties ' Briefs were submitted on January 23 2004. The NPSC did
not release its Order until February 10, 2004, too late to be included in the
parties ' Briefs.
The NPSC Order is very relevant to the Commission s deliberations
because it ruled upon an application by Nexte1 Partners for ETC status.
No party will be prejudiced by the granting of this Motion.
WHEREFORE, IT A and Citizens respectfully request that the Commission enter
its order:
Taking official notice of the NPSC Order; and
Directing that the NPSC Order be marked as an exhibit and included in the
record as a late-file exhibit.
Oral argument is not requested on this Motion.
SECOND JOINT MOTION TO TAKE OFFICIAL NOTICE - 2 BOI MT2:537750.
J:', IL.Respectlully submItted thIS -1.-Ci.- day of February, 2004.~W.Q,),
Morgan W. chards
MOFFATT, THOMAS, BARRETT, ROCK & FIELDS
CHTD.
Attorneys for Citizens
Telecommunications Company of Idaho
~~
c/ ~-'\. Conley . Ward
GIVENS PURSLEY LLP
Attorneys for Idaho Telephone Company
SECOND JOINT MOTION TO TAKE OFFICIAL NOTICE - 3 BOI MT2:537750.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of February, 2004, I caused a true and
correct copy of the foregoing SECOND JOINT MOTION TO TAKE OFFICIAL NOTICE
to be served by the method indicated below, and addressed to the following:
John Hammond, Deputy AG
IDAHO PUBLIC UTILITIES COMMISSION
472 West Washington Street
Post Office Box 83720
Boise, Idaho 83720-0074
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Electronic Mail
Molly O'Leary
RICHARDSON & O'LEARY, P.LLC.
99 East State Street, Suite 200
Eagle, Idaho 83616
Dean J. Miller
420 West Bannock
Post Office Box 2564-83701
Boise, Idaho 83702
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Philip R. Schenkenberg
BRIGGS AND MORGAN, P.
2200 First National Bank Building
332 Minnesota Street
St. Paul, Minnesota 55101
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Conley Ward
GIVENS PURSLEY, LLP
277 North 6th Street, Suite 200
Post Office Box 2720
Boise, Idaho 83701
Lance A. Tade, Manager
State Government Affairs
CITIZENS TELECOMMUNICATIONS
COMP ANY OF IDAHO
4 Triad Center, Suite 200
Salt Lake City, UT 84180
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Overnight Mail
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SECOND JOINT MOTION TO TAKE OFFICIAL NOTICE - 4 BOI MT2:537750.
Robert M. Nielsen
548 E Street
Post Office Box 706
Rupert, Idaho 83350
Charles H. Creason, Jr.
President and General Manager
PROJECT MUTUAL TELEPHONE COOPERATIVE
ASSOCIATION, INC.
507 G Street
Post Office Box 366
Rupert, Idaho 83350
Mary S. Hobson
STOEL RIVES, LLP.
101 South Capitol Boulevard, Suite 1900
Boise, Idaho 83702
Eric Steinmann
Corporate Counsel
CLEAR TALK
Post Office Box 1976
Wrightwood, California 92397
Clay Sturgis
Senior Manager
Moss ADAMS, LLP.
601 Riverside, Suite 1800
Spokane, Washington 99201-0063
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W'acsimi1e( ) Electronic Mail
()(U.S. Mail, Postage Prepaid
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fu 0.Mo gan ti1Richards
SECOND JOINT MOTION TO TAKE OFFICIAL NOTICE - 5 BOI MT2:537750.
ATTACHMENT
BEFORE THE NEBRASKA PUBLIC SERVICE COMMISSION
In the Matter of the Application
of Amended NPCR , Inc., d/b/a
Nextel Partners, Eden Prairie,
Minnesota seeking designation as
an eligible telecommunications
carrier that may receive
universal service support.
Application No.2932
DENIED
Entered: February 10, 2004
APPEARANCES:
For the Appl icant
Loel Brooks
Brooks, Pansing, Brooks , PC
Suite 984
Wells Fargo Center
Lincoln , Nebraska
Philip R. Schenkenberg
2200 First National Bank Building
St. Paul, Minnesota
For the Commission:
Shana Knutson
300 The Atrium
1200 N Street
Lincoln , Nebraska
BY THE COMMISSION:
By application filed April 24 2003, NPCR d/b/a NextelPartners (NPCR or Applicant) of Eden Prairie, Minnesota , seeks adesignation as an eligible telecommunications carrier(hereinafter ETC) so that it may receive federal universalservice fund support. The application was amended by NPCR onApril 28, 2003. Notice of the application was published in The
Daily Record , Omaha , Nebraska, on April 30, 2003. No protests
or interventions were filed. A hearing on the application washeld on July 17 2003, in the Commission Hearing Room , with
appearances as shown above.
The application provides that NPCR seeks designation in
several of Qwest' s wire centers and in the rural study areas of
Application No. C-2932 PAGE 2
Arlington Telephone Company, Blair Telephone Company, ClarksTelephone Company, Diller Telephone Company, Eastern NebraskaTelephone Company, Hamilton Telephone Company, HartingtonTelephone Company, Henderson Cooperative, Hooper Telephone,
Sodtown Telephone Company, Southeast Nebraska Telephone Companyand Stanton Telecom Inc. (See Attachment to Exhibit
hereinafter "Attachment 1"
In support of the application, NPCR presented one witnessMr. Scott Peabody, director of engineering for NPCR.
addition to the application and amended application , which were
offered and received into evidence as Exhibits 3 and 3 (a), NPCR
offered the pre-filed testimony of Mr. Peabody into the record.In summary of his written testimony, Mr. Peabody stated that
NPCR meets all of the requisite criteria for a grant of ETCstatus.
NPCR is a Delaware corporation with a principal place of
business located in Eden Prairie, Minnesota. NPCR was formed in
1998 to build out and operate a digital mobile network in mid-size, small and rural markets using the Nextel Communicationsbrand name. NPCR launched service in Nebraska in 2000. NPCR
has obtained licenses from the Federal Communications Commission
(FCC) to operate in territories where 53 million people live andwork. NPCR built a self-site network covering over 36 million
people in 31 states. Nextel Communications and NPCR areseparate companies, though they are working together throughstrategic agreements. The partnership arrangement has allowed
NPCR to offer the same services to rural consumers as those
offered to urban consumers by Nextel Communications at the sameor similar rates.
The application and pre-filed testimony state generallythat NPCR is common carrier and provides the supportedservices including voice-grade access to the public switched
network local usage, dual tone, a functional equivalent to
dual-tone, multi-frequency signaling, single-party service,
access to emergency services, access to operator services,
access to interexchange service, access to directory service,and will , upon designation , provide toll limitation for low-
income consumers. NPCR's application also states that NPCR willoffer and advertise the availability of supported serVlces
wi thin the designated areas.
Mr. Peabody further testified that with an ETC designation
NPCR will be eligible to compete on a level playing field withits competitors. According to Mr. Peabody, in rural areas,public interest is served by bringing consumer choice,innovative services and new technologies to the designated
Application No. C-2932 PAGE 3
areas. Specifically, the application avers that the public
interest test is or will be met because: 1) NPCR'request
covers enough territory to prevent cherry-picking, 2) that NPCRwill be able to provide universal service on more
competitively neutral basis, 3) that NPCR will provide supported
services to Nebraska consumers with service offerings that willbe different from landline offerings, 4) that deployment and
wireless network expansion will continue with universal servicesupport, 5) that incumbent local exchange carriers (LECs) willbe given the incentive to improve their existing networks in
order to remain competitive, 6) that NPCR will provide all of
the supported services required by the Commission and will allow
NPCR to compete on a level playing field, and 7) to promote the
extensive role NPCR plays in the provision of communications
services to Nebraska public schools, libraries and local, state
and federal government agencies.
In reviewing an application for eligible telecommunications
carrier designation , the Commission looks to Sections 254 (b) and
214 (e) of the Telecommunications Act of 1996 (the Act),
conjunction with applicable FCC rules and regulations.
Section 254 (b) of the
outlining six principles:
Act defines uni versal service
1. Quality services should be available at just, reasonableand affordable rates.
2. Access to advanced services should be provided in all
regions of the nation.
3. Consumers in all regions of the nation should have
access to services (including advanced services) at
rates that are reasonably comparable to those in urbanareas.4. All telecommunications providers should make equitable and nondiscriminatory contribution to the
preservation and advancement of universal service.
5. There should be specific, predictable and sufficientFederal and State mechanisms to preserve and advanceuniversal service.
6. Schools and libraries should have access to advancedservices.
In 1997, the FCC released its Universal Service Report and
Order in CC Docket 96-45, FCC 97-157 (Universal Service Order),which implemented several sections of the Act. The FCC'Universal Service Order provides that only eligible
Application No. C-2932 PAGE 4
telecommunications carriers designated by state commission
shall receive federal universal service support. Section 214 (e)
of the Act delegates to the states the ability to designate a
common carrier as an ETC for a service area designated by thestate commission. A service area is the geographic area
established for the purpose of determining the universal service
obligation and support eligibility of the carrier. The FCC also
provided that "competitive neutrality should be an addeduniversal service principle.
Section 214 (e) (1) provides that an ETC Applicant shall:
(B)
Throughout the service area for which such
designation is received-offer the services that are supported byfederal universal service support mechanisms
under section 254
. .
; andadvertise the availability of suchservices and the charges therefore using mediaof general distribution.
(A)
The FCC'supported services
54.101 (a) and are as follows:
are found
a. voice grade access to the public switched
network;
b. local usage;
c. dual tone multi-frequency signaling or its
functional equivalent;
d. single-party service or its functional
equivalent;
e. access to emergency services;
f. access to operator services;
g. access to interexchange services;
h. access to directory assistance; and
i. toll limitation for qualifying low-income
consumers.
Upon review of the application and testimony presented, the
Commission finds that Applicant offered only generalized
statements that it has the ability to provide the supportedservices listed in a- i, above.
Federal law further provides that:
In the area served by a rural telephone company
service area " means such company s "study area
unless and until the Commission and the States
after taking into account recommendations of a
Application No. C-2932 PAGE 5
Federal-State Joint Board instituted under
section 410 (c), establish a different definition
of service area for such company.
Section 214 (e) (2) generally provides,
A State commission shall upon its own motion orupon request designate a common carrier that
meets the requirements of paragraph (1) as aneligible telecommunications carrier for
service area designated by the State commission.
Upon request and consistent wi th the publicinterest, convenience, and necessity, the State
commission may, in the case of an area served byrural telephone company, and shall, in the
case of all other areas, designate more than one
common carrier as an eligible telecommunicationscarrier for a service area designated by theState commission, so long as each additional
requesting carrier meets the requirements of
paragraph (1). (Emphasis Added) .
In an area served by rural carriers Section 214 (e) (2) further
requires ETC Applicants to demonstrate to the state Commissionthat the designation of an additional ETC is in the publicinterest. (Emphasis Added) .
The Commission previously found in its Western Wireless
Order that it was not necessary for an ETC to be offering the
supported services and advertising the availability and chargesof the services prior to ETC designation. However , in thatruling the Commission also found that Western Wireless had
presented sufficient and credible evidence that it was willing
and capable of meeting the requirements of Section 214 (e) (2) andhad every intention of carrying out its plan to provide the
supported telecommunications services throughout the designated
area. Western Wireless provided detailed evidence as to how its
basic universal service offering (BUS) was to be provided over a
wireless access unit and antenna combination that was capable
reaching even the most insular rural areas of the state.
Unlike the case in Western Wireless, the evidence presentedin this case does not convince the Commission that the
Applicant is likewise capable of meeting the requirements ofSection 214 (e) (2) . Nor does the evidence indicate to the
Commission that the Applicant is willing to meet the basic
requirements of Section 214 (e) (2) .
Application No. C-2932 PAGE 6
The Commission further finds that the Applicant has not
presented a clear plan and timetable for providing the supported
services throughout the designated territory. Upon questioning,
the Applicant stated that it would be difficult to follow any
parameters set by the Commission in relation to the provisioningof service. (Transcript at 53: 8-20) . Applicant claims the
Commission does not have the ability to set any reasonable
parameters to ensure that the requirements of Section 214 (e) (2)are fulfilled. This testimony creates concerns in relation to
NPCR's willingness to serve the entirety of the study areas for
which NPCR has requested designation.
In sum , the Commission finds that NPCR has not provided
sufficient evidence that it is willing and capable of meetingthe core eligibility requirements of section 214 (e) . NPCR
failed to provide sufficient evidence that it can provide the
supported services listed in 47 C.R. ~ 54.101 et seq. and
failed to demonstrate to the Commission that it is willing to
serve the entire designated area.
We also interpret the language in Section 214 (e) (2) to mean
that the Commission is only obligated to designate more than one
ETC in given territory served by non-rural carriers.
Specifically, Section 214 (e) (2) reads that upon a finding thatit is consistent with public interest and necessity, the
Commission shall designate more than one ETC in an area served
by a non-rural company. The plain construction of the phrase
more than one in the Commission opinion means the
designation of a second ETC is required upon a finding that said
ETC Applicant has satisfied the requirements of the Act and FCCregulations. However, the Commission finds that the literal
reading of Section 214 (e) (2) stops there. The Commission
believes that the designation of a third or fourth ETC in a
given territory served by a non-rural carrier is purelydiscretionary. In light of this interpretation, the Commission
finds that it has already satisfied the requirement in Section
214 (e) (2) by designating more than one ETC in all of the
proposed non-rural territory described by NPCR in Attachment
to its application.
In addition, with respect to the request to be designatedas an additional ETC in the rural areas outlined in Attachment
, the Commission finds that the Applicant has not sufficiently
proven that designation is in the public interest.
To demonstrate public interest, the Applicant'witnesstestified that the addition of it as a competitor and the
introduction of new technologies in the rural market satisfy thepublic interest test. To further support its argument that a
Application No. C-2932 PAGE 7
designation is in the public interest, the Applicant states thatthe Commission should review its application against this
Commission Western Wireless Order. If we would do so, NPCR'
application would fall short of the standards set by the
Commission. First, as stated above, we do not believe Applicant
has shown that it is willing to provide the supported services
throughout the designated territory. We do not believe that
Applicant'proposed service territory lS large enough toproperly address our concerns relating to "cherry picking.
Moreover there is no indication that a designation in thepresent case would lead to "increased" competition. Finally,
while the Commission did provide an analysis of public interestin the Western Wireless case, the Commission believes that apublic interest analysis requires a case-specific finding.
review of public interest requires the Commission to carefully
balance the public benefits and public harms of approving an ETCapplication. This requires the Commission to look at the
environment at the time designation is sought. In the presentcase, Applicant is already providing the wireless service
throughout its licensed territory in Nebraska. Applicant
offered no evidence that it will, in fact, extend its service or
provide better service than presently being offered. Instead,
Applicant has made generalized statements with respect to public
interest, which even if true, would not distinguish itself from
any other wireline or wireless provider.
Nonetheless, we will address NPCR'claims individually.
First, NPCR claims that its proposed territory is large enough
to prevent cherry-picking. We do not believe that it is. NPCR
does not give any other information to back this claim with the
exception of a map, which outlines its licensed territory and
signal strength. (See Exhibit 8). Exhibit 8 demonstrates that
large regions of territory served by Eastern Nebraska Telephoneand Stanton will go unserved while the higher populated areaswill continue to receive NPCR' s service. In response to
Commission questions, Applicant could not give the Commission a
time frame in which to expect all proposed designated areas to
be served. Further , unlike Western Wireless , NPCR' s application
covers only a part of the eastern portion of the state, leaving
the western half of the state unserved. We do not think the
proposed territory is large enough to prevent cherry-picking.
Next, NPCR states that with federal support, it will beable to provide universal service on a more competitivelyneutral basis. Competitive neutrality was added by the FCC to
the Section 254 list of universal service principles. Contrary
to the position of NPCR , we find that the goal of competitive
neutrality is not automatically met with the designation of an
addi tional ETC in the areas served by rural companies. As NPCR
Application No. C-2932 PAGE 8
is already successfully providing a wireless service in that
area, there is no reason to believe that NPCR needs a subsidy to
level the competitive playing field. Federal subsidies flowingto NPCR may result in just the opposite, a windfall to
Applicant, particularly when this Applicant is unwilling to
submit to some basic state-imposed requirements such as equal
access, the filing of tariffs and service quality benchmarks.
Third, NPCR states that it will provide supported servicesto Nebraska consumers with service offerings that will
different from landline offerings. NPCR is providing service in
the proposed territory now. There was no evidence produced which
would indicate that this ETC designation would produce better or
more valuable services than those currently available to ruralconsumers. Although NPCR claims that it will expand deploymentof its wireless network as it receives universal service
support, it brought forth no specific evidence of where and when
it plans to do so. In fact, the NPCR witness stated in the
hearing that NPCR could not give any timetable for any such
expansion.
Further , NPCR claims that incumbent local exchange carriers
(ILECs) will be given the incentive to improve their existing
networks in order to remain competi ti ve. We do not believe this
to be true. Because NPCR does not directly compete with the
service of the rural incumbent carrier, there would be
incentive for the incumbent LECs to make any improvements.Moreover, we note that current state universal service
mechanisms already give incumbent LECs incentives to lmprove
their existing networks.
Finally, NPCR states that public interest is met because
designation will promote the extensive role NPCR plays in the
provision of communications services to Nebraska public schools,
libraries and local state and federal government agencies.
NPCR offered no specific evidence of how this would come about
or where universal service support would be invested.
In today marketplace, we find that the question to be
answered is whether subsidizing NPCR's service offering in theproposed Nebraska rural territories is good public policy.Looking back to its 2000 Western Wireless decision the
Commission finds that perhaps its public interest analysis
wasn rigorous enough and tailored enough to the goals ofuniversal service. To be sure, the Commission was more
concerned at that time with bringing competition to the rural
areas of Nebraska. Since then the environment and the
Commission focus has changed. The Commission believes thatuniversal service is not a vehicle by which competition should
Application No. C-2932 PAGE 9
be artificially created. The purpose of universal service is
not to promote competition. Rather , the purpose of universal
service is found in section 254 of the Act. To this end, the
Commission role is to ensure that the universal service
principles continue to be served in a competitive environment.
As we noted in our Western Wireless Order,
The mere provision of additional competition bythe entry of another ETC into a rural area isnot sufficient in and of itself as
demonstration of the public interest. We acceptthe argument made by the Intervenors that,
Competition is not tantamount to publicinterest.If that were the case, no public
interest test review would be necessary sinceany and all new competitors would represent
additional benefit to the public.
In light of the current environment , we find that the real
issue to consider is whether Applicant's competitive efforts in
the proposed territory should be subsidized by payments from thefederal USF. We find they should not. As the Applicant's casedemonstrates, no federal subsidy is necessary to bring
Applicant'service to the rural areas. Applicant is already
serving the rural areas and bringing new technologies to these
areas without the assistance of a federal subsidy. We further
believe an ETC designation would not place Applicant on a level
playing field with the incumbent carriers. Rather , a grant of
the application would grant to the Applicant distinct advantages
over the incumbent carriers, jeopardizing their ability to serveall of their subscribers adequately and jeopardizing the
principles set forth in section 254. In addition , Applicant is
virtually unregulated in terms of service quality, and Applicanthas no equal access obligations that the incumbent carriers
have. Unlike Western Wireless , Applicant was unwilling to submit
its service to some service quality benchmarks, file tariffs, or
consent to the Commission s general jurisdiction over consumercomplaints. Consumers in the proposed territory are already
receiving telecommunications services from the Applicant withoutadditional costs. If this application is granted, consumers
would be required to bear the additional costs necessary to
subsidize the service provided by the Applicant. Accordingly, we
find that the public costs in granting an ETC designation in theterri tory served by the rural carriers outweighs any supposed
benefits offered by Applicant.
the
In sum, we find NPCR's application for ETC designation inproposed territories described in Attachment to the
Application No. C-2932 PAGE 10
application served by non-rural carriers and by rural carriers
should be denied.
IT IS THEREFORE ORDERED by the Nebraska Public Service
Commission that the application of NPCR d/b/a Nextel Partners
should be and it is denied.
MADE AND ENTERED at Lincoln
February, 2004.
Nebraska,this 10th day of
NEBRASKA PUBLIC SERVICE COMMISSION
COMMISSIONERS CONCURRING:
Chairman
ATTEST:
Executive Director
Application No. C-2932 PAGE 11
Commissioners Anne Boyle and Lowell Johnson dissenting:
We respectfully dissent. NPCR, d/b/a Nextel Partners
(NPCR) filed this application seeking eligible
telecommunications carrier (ETC) designation in areas served by
Qwest and number of rural independent companies. The
Commission duly published notice of the application and placed
all carriers on notice of NPCR's intentions. Even though therehas been great controversy at the state and national levelregarding designation of ETC status, no party opposed or
intervened. It is well established that the "failure to timely
file a protest shall be construed as a waiver of opposition and
participation in the proceeding.See Neb. Admin. Code Title
291, Chapter 1, Section 014.01.
Nevertheless, in order to ensure that NPCR' s offering
satisfied all criteria outlined in the federal Tele-
communications Act of 1996 (the Act), the Nebraska PublicService Commission (NPSC) chose to hold a hearing. NPCR
through its witness, offered into the record evidence on each
element of proof necessary. The Commission accepted the
evidence and did not dispute NPCR's claim that they had met allcri teria required by the Act.
We are very concerned about the Federal Universal ServiceFund (USF) from which ETCs draw funding. As the FCC has
recognized, designation of additional ETCs draws more from the
USF which is suffering from ever- increasing demands anddiminishing sources of revenue. Some rural associations havecriticized states for cursorily granting ETC designation.
However , we do not believe that the states should be to blame asthe term "public interest" has been an ill-defined and ever
changing test. At the time of the hearing on this application,
the FCC hadn t offered clear guidelines to states to determinepublic interest. It was only recently, that the FCC, by
Memorandum Opinion and Order involving Virginia Cellular , Inc.,gave states a specific framework for making their public
interest judgments.1 However, the FCC explained that its public
interest analysis may again be altered due to the Joint Board'
deliberations and any other public interest framework that the
FCC may adopt.
In reviewing this application we question whether
designation of ETC status in rural areas where competition may
harm existing carriers of last resort. At the same time we
consider whether customers are well served without the benefitof choice. A competitive ETC does not draw until it begins to
provide service. Therefore, the only tests states can consider
Application No. C-2932 PAGE 12
are the obj ect i veinterest.cri teria set the Act and the public
We are hopeful that the FCC will give states more authority
to look to a number of relevant factors prior to designation.
If states are to consider the size of the fund, the FCC should
compute a formula to determine the amount each state should
receive. A federal/state partnership would allow each state to
administer their portion of the fund. Currently carriers simplycertify they are properly using provided funds. State
administration would allow closer scrutiny to ensure proper useof funds. Currently, states have no control over the size or
disbursements from the federal USF.
Based on the record in this case, it is our opinion that
the NPSC is legally unable to make a decision to deny an ETC
application simply because of the aforementioned concerns. With
no protests, no dispute that necessary criteria had not been met
and no provision in the Act for state discretion to deny anapplication other than those previously mentioned, the
application should be granted.
Anne C. Boyle
Lowell C. Johnson