Title of Regulation: 20VAC5-430. Rules Governing Designation of Commercial Mobile Radio or Cellular Telephone Service Provider as an Eligible Telecommunications Carrier (adding 20VAC5-430-10 through 20VAC5-430-100).

Statutory Authority: §§ 12.1-13 and 56-479.4 of the Code of Virginia.

Public Hearing Information: A public hearing will be held upon request.

Public Comment Deadline: September 26, 2022.

Agency Contact: Shepelle Watkins-White, Deputy Director, Public Utility Regulation Division, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9050, or email shepelle.watkins-white@scc.virginia.gov.

Summary:

Pursuant to Chapter 436 of the 2022 Acts of Assembly, the proposed new chapter establishes rules to govern the designation of a commercial mobile or cellular telephone service provider as an eligible telecommunications carrier for purposes of providing Lifeline services, including (i) filing requirements for an applicant requesting that the State Corporation Commission designate the applicant as an eligible telecommunications carrier in accordance with § 56-479.4 of the Code of Virginia and applicable federal statutes and regulations; and (ii) ongoing requirements for any entity designated as an eligible telecommunications carrier by the State Corporation Commission.

AT RICHMOND, JULY 27, 2022

CASE NO. PUR-2022-00107

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

Ex Parte: In the matter of establishing rules
governing the designation of a commercial mobile
or cellular telephone service provider as an
eligible telecommunications carrier for purposes
of providing Lifeline services.

ORDER FOR NOTICE AND COMMENT

This order initiates a proceeding to consider establishing rules by the State Corporation Commission ("Commission") to govern the designation of a commercial mobile or cellular telephone service provider as an eligible telecommunications carrier for purposes of providing Lifeline services. During its 2022 Session, the Virginia General Assembly enacted Chapter 436 of the Acts of Assembly, which states:

The State Corporation Commission may designate any commercial mobile radio or cellular telephone service provider as an eligible telecommunications carrier for purposes of providing Lifeline service, in addition to any commercial mobile radio or cellular telephone service providers designated as such pursuant to 47 U.S.C. §§ 214(e) and (e)(2), without requiring any such provider to obtain a certificate pursuant to the provisions of § 56-265.4:4. The Commission is authorized to promulgate all rules and regulations necessary to implement the provisions of this act.

To facilitate a determination of what rules and regulations are necessary to implement the provisions of Chapter 436 of the 2022 Acts of Assembly, the Staff of the Commission ("Staff") has prepared proposed rules ("Proposed Rules"), which are attached hereto.

NOW THE COMMISSION, upon consideration of the foregoing, is of the opinion and finds that notice of the Proposed Rules should be given to the public and that interested persons should be provided an opportunity to file written comments on, propose modifications or supplements to, or request a hearing on the Proposed Rules. We further find that a copy of the Proposed Rules should be sent to the Registrar of Regulations for publication in the Virginia Register of Regulations.

The Commission takes judicial notice of the ongoing public health issues related to the spread of the coronavirus, or COVID-19. The Commission has taken certain actions, and may take additional actions going forward, which could impact the procedures in this proceeding.¹ Consistent with these actions, in regard to the terms of the procedural framework established below, the Commission will, among other things, direct the electronic filing of comments.

Accordingly, IT IS ORDERED THAT:

(1) The matter is docketed and assigned Case No. PUR-2022-00107.

(2) All comments, pleadings, or other documents filed in this matter should be submitted electronically to the extent authorized by 5 VAC 5-20-150, Copies and format, of the Commission's Rules of Practice and Procedure ("Rules of Practice").² Confidential and Extraordinarily Sensitive Information shall not be submitted electronically and should comply with 5 VAC 5-20-170, Confidential information, of the Rules of Practice. Any person seeking to hand deliver and physically file or submit any pleading or other document shall contact the Clerk's Office Document Control Center at (804) 371-9838 to arrange the delivery.³

(3) Pursuant to 5 VAC 5-20-140, Filing and service, of the Rules of Practice, the Commission directs that service on parties and the Staff in this matter shall be accomplished by electronic means. Concerning Confidential or Extraordinarily Sensitive Information, parties and the Staff are instructed to work together to agree upon the manner in which documents containing such information shall be served upon one another, to the extent practicable, in an electronically protected manner, even if such information is unable to be filed in the Office of the Clerk, so that no party or the Staff is impeded from preparing its case.

(4) The Staff shall forward a copy of this Order for Notice and Comment ("Order"), including a copy of the Proposed Rules, to the Registrar of Regulations for publication in the Virginia Register of Regulations.

(5) On or before August 29, 2022, the Commission's Division of Public Utility Regulation shall publish the following notice as classified advertising in newspapers of general circulation throughout the Commonwealth of Virginia:

NOTICE TO THE PUBLIC OF A PROCEEDING TO ESTABLISH RULES OF THE STATE CORPORATION COMMISSION GOVERNING THE DESIGNATION OF A COMMERCIAL MOBILE OR CELLULAR TELEPHONE SERVICE PROVIDER AS AN ELIGIBLE TELECOMMUNICATIONS CARRIER FOR PURPOSES OF PROVIDING LIFELINE SERVICES

The State Corporation Commission ("Commission") has initiated a proceeding to consider establishing rules to govern the designation of a commercial mobile or cellular telephone service provider as an eligible telecommunications carrier for purposes of providing Lifeline services. The Staff of the Commission has prepared proposed rules for review ("Proposed Rules"). The Commission has issued an Order for Notice and Comment that provides that notice be given to the public and that interested persons be given an opportunity to file written comments on, to propose modifications or supplements to, or to request a hearing on these Proposed Rules.

An electronic copy of the Proposed Rules can be found at the Division of Public Utility Regulation's website: scc.virginia.gov/pages/Rulemaking. A downloadable version of this Order, the Proposed Rules, and related filings is available for access by the public on the Commission's website: scc.virginia.gov/pages/Case-Information.

On or before September 26, 2022, any interested person or entity may file comments on the Proposed Rules by following the instructions found on the Commission's website: scc.virginia.gov/casecomments/Submit-Public-Comments. Those unable, as a practical matter, to submit comments electronically may file such comments by U.S. mail to the Clerk of the State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. Such comments may also include proposals and hearing requests. All comments shall refer to Case No. PUR-2022-00107. Any request for hearing shall state with specificity why the issues raised in the request for hearing cannot be adequately addressed in written comments. If a sufficient request for hearing is not received, the Commission may consider the matter and enter an order based upon the papers filed herein.

STATE CORPORATION COMMISSION

(6) An electronic copy of the Proposed Rules may be obtained by submitting a request to Shepelle Watkins-White in the Commission's Division of Public Utility Regulation at the following email address: Shepelle.Watkins-White@scc.virginia.gov. An electronic copy of the Proposed Rules can be found at the Division of Public Utility Regulation's website: scc.virginia.gov/pages/Rulemaking. Interested persons may also download unofficial copies of the Order and the Proposed Rules from the Commission's website: scc.virginia.gov/pages/Case-Information.

(7) The Commission's Division of Public Utility Regulation shall provide copies of this Order by electronic transmission, or when electronic transmission is not possible, by mail, to: individuals, organizations, and companies who have been identified by the Staff as potentially being interested in this proceeding.

(8) On or before September 26, 2022, any interested person may file comments on the Proposed Rules by following the instructions found on the Commission's website: scc.virginia.gov/casecomments/Submit-Public-Comments. Those unable, as a practical matter, to submit comments electronically may file such comments by U.S. mail to the Clerk of the State Corporation Commission, c/o Document Control Center, P.O. Box 2118, Richmond, Virginia 23218-2118. Such comments may also include proposals and hearing requests. All comments shall refer to Case No. PUR-2022-00107. Any request for hearing shall state with specificity why the issues raised in the request for hearing cannot be adequately addressed in written comments. If a sufficient request for hearing is not received, the Commission may consider the matter and enter an order based upon the papers filed herein.

(9) On or before October 24, 2022, the Staff shall file with the Clerk of the Commission a report on or a response to any comments, proposals, or requests for hearing submitted to the Commission on the Proposed Rules.

(10) All documents filed in paper form with the Office of the Clerk of the Commission in this docket may use both sides of the paper. In all other respects, except as modified by this order, all filings shall comply fully with the requirements of 5 VAC 5-20-150, Copies and format, of the Rules of Practice.

(11) This matter is continued.

A COPY hereof shall be sent electronically by the Clerk of the Commission to all local exchange carriers certificated in Virginia as set out in Appendix A; and C. Meade Browder, Jr., Senior Assistant Attorney General, Office of the Attorney General, Division of Consumer Counsel, 202 N. 9th Street, 8th Floor, Richmond, Virginia 23219-3424, mbrowder@oag.state.va.us.

^{____________________________________}

¹See, e.g., Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: Electronic Service of Commission Orders, Case No. CLK-2020-00004, 2020 S.C.C. Ann. Rept. 76, Order Concerning Electronic Service of Commission Orders (Mar. 19, 2020), extended by 2020 S.C.C. Ann. Rept. 77, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (May 11, 2020); Commonwealth of Virginia, ex rel., State Corporation Commission, Ex Parte: Revised Operating Procedures During COVID-19 Emergency, Case No. CLK-2020-00005, 2020 S.C.C. Ann. Rept. 77, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (Mar. 19, 2020) ("Revised Operating Procedures Order"), extended by 2020 S.C.C. Ann. Rept. 78, Order Regarding the State Corporation Commission's Revised Operating Procedures During COVID-19 Emergency (May 11, 2020); Commonwealth of Virginia, ex rel. State Corporation Commission, Ex Parte: Electronic service among parties during COVID-19 emergency, Case No. CLK-2020-00007, 2020 S.C.C. Ann. Rept. 79, Order Requiring Electronic Service (Apr. 1, 2020).

²5 VAC 5-20-10 et seq.

³As noted in the Commission's Revised Operating Procedures Order, submissions to the Commission's Clerk's Office via U.S. mail or commercial mail equivalents may not be processed for an indefinite period of time due to the COVID-19 health issues.

Chapter 430

Rules Governing Designation of Commercial Mobile Radio or Cellular Telephone Service Provider as an Eligible Telecommunications Carrier

20VAC5-430-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Broadband Internet access service" means a mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up service.

"Commission" means the State Corporation Commission.

"Duplicative support" means a Lifeline subscriber is receiving two or more Lifeline services concurrently or two or more subscribers in a household are receiving Lifeline services or Tribal Link Up support concurrently.

"ETC" means eligible telecommunications carrier.

"FCC" means Federal Communications Commission.

"Lifeline" means a nontransferable retail service offering provided directly to qualifying low-income consumers as defined in 47 CFR 54.401.

"Lifeline service" means telephony, broadband Internet access service, and other supported services as provided by the FCC through its universal service fund for qualifying low-income customer support pursuant to 47 USC § 214 and associated regulations pursuant thereto (see 47 CFR Part 54, Subpart E).

"National Lifeline Accountability Database" is an electronic system, with associated functions, processes, policies, and procedures, to facilitate the detection and elimination of duplicative support, as directed by the FCC.

"Qualifying low-income consumer" means a consumer who meets the qualifications for Lifeline, as specified in 47 CFR 54.409.

20VAC5-430-20. Filing of application.

A. Unless filed electronically, an original and 15 copies of an application seeking designation as an ETC shall be filed with the Clerk of the Commission.

1. An applicant shall deliver a copy of the application to the Division of Public Utility Regulation at the same time it is filed with the Clerk of the Commission.

2. A copy of all confidential information filed under seal with the Clerk of the Commission in connection with the application shall be provided by the applicant, at the time of filing, to the Division of Public Utility Regulation and the Office of General Counsel pursuant to 5VAC5-20-170.

3. Any amendment or supplement to the application shall be filed in compliance with this section.

B. Notice of the application shall be given to all certificated local exchange carriers and other interested parties in Virginia in a form to be prescribed by the commission pursuant to an order.

20VAC5-430-30. Notice of application.

Pursuant to a commission procedural order, the applicant shall publish notice in newspapers having general circulation throughout its proposed service territory.

20VAC5-430-40. Application requirements.

A. An applicant shall submit information that identifies the applicant, including (i) its name, address, and telephone number; (ii) its corporate ownership; (iii) the name, address, and telephone number of its corporate parent, if any; (iv) a list of its officers and directors, or if the applicant is not a corporation, a list of its principals and their directors; (v) the names, addresses, and telephone numbers of its legal counsel; and (vi) the name, address, telephone number, fax number, and email address of the primary in-house regulatory contact, designated to receive all official mailings or notices from the commission or staff. An update of any information for the ETC's primary in-house regulatory contact shall be provided to the commission staff within 30 days of any change.

B. An applicant shall attest that it will meet the requirements set forth in 47 USC § 214 (e)(1)(A) and (B) and 47 CFR Part 54, for designation as an ETC to be eligible to receive federal universal service fund support for Lifeline service provided to qualifying low-income customers in Virginia. All ETCs shall comply with federal requirements except to the extent the FCC has granted a waiver of its rules and regulations. All ETCs shall comply with this chapter except to the extent any waiver is granted pursuant to 20VAC5-430-100.

C. An applicant shall attest that it will maintain current terms, conditions, and rates applicable to its Lifeline service in a link to its service guide posted on its website and shall provide to the commission said link with its application. An ETC shall provide the commission staff an update upon a change to an ETC's web address affecting said link.

D. An applicant shall provide a statement that it will query the National Lifeline Accountability Database to determine whether prospective subscribers are currently receiving a Lifeline service from another ETC and whether anyone else living at the prospective subscriber's residential address is currently receiving a Lifeline service.

E. An applicant shall attest that it will satisfy applicable consumer protection and service standards. A commitment by wireless applicants to comply with the Cellular Telecommunications and Internet Association's Consumer Code for Wireless Service will satisfy this requirement. Other commitments will be considered on a case-by-case basis.

F. An applicant shall demonstrate that it is authorized to do business in the Commonwealth of Virginia by providing the following:

1. In the case of an entity formed under the laws of Virginia: (i) a true and correct copy of its articles of organization or incorporation, certificate of limited partnership, or other organizational documents, and all amendments thereto; and (ii) a copy of the certificate and order issued by the commission.

2. In the case of an entity formed under the laws of a jurisdiction other than Virginia: (i) a copy of the certificate or statement of registration to do business in Virginia issued to it by the commission; and (ii) a true and correct copy of its articles of organization, certificate of limited partnership, or other organizational documents, and all amendments thereto.

G. An applicant shall be required to show that it is financially and technically capable of providing the supported Lifeline service.

1. To demonstrate financial ability, an applicant shall, at a minimum, provide the per books balance sheet, income statement, and statement of changes in financial position of an applicant or the entity responsible for the financing of an applicant, for the two most recent annual periods. Audited financial statements shall be provided, if available, including notes to the financial statements and auditor's letter. Published financial information that includes Securities and Exchange Commission forms 10K and 10Q shall be provided, if available.

2. An applicant shall demonstrate that it is technically capable of providing the supported Lifeline service by, at a minimum, providing the following information:

a. A description of the applicant's or the applicant's parent's history and experience of providing wireless telecommunications or other relevant services, if any; and

b. The managerial and technical experience of each principal officer or member and appropriate senior management and technical personnel.

3. An applicant shall provide a list of the states where the applicant, parent, or any affiliate is designated as an ETC, including the date service was commenced for each.

4. An applicant shall also provide a list of any state where an ETC designation was previously held or Lifeline service was provided and subsequently discontinued and the applicable dates.

5. An applicant shall provide a list of the states where the applicant, parent, or any affiliate has had its ETC designation or authorization denied, suspended, terminated, or revoked. The list shall include the reason for such denial, suspension, termination, or revocation and copies of any orders issued by a state commission or regulatory authority addressing such action.

6. A description of whether the applicant intends to offer the Lifeline service over its own facilities, by resale of another carrier's facilities or services, or through a combination of its own facilities and resale of third-party facilities or services.

7. A provider of wireless telecommunication service who seeks designation as an ETC that does not own facilities must affirm in its application that it:

a. Provides qualifying low-income subscribers access to emergency 911 service and enhanced 911 service, regardless of activation status and availability of minutes;

b. Provides qualifying low-income subscribers handsets that are capable of providing access to enhanced 911 service and replaces at no additional charge any handset that is not capable of providing access to enhanced 911 service; and

c. If required, has a plan for compliance which has been approved by the Wireline Competition Bureau of the FCC.

8. An applicant shall attest that it will comply with the requirements set forth in 47 CFR 54.404.

9. An applicant shall affirm its ability to remain functional in emergency situations, including a demonstration that it has a reasonable amount of back-up power to ensure functionality without an external power source, is able to reroute traffic around damaged facilities, and is capable of managing traffic spikes resulting from emergency situations.

H. A copy of the compliance plan submitted to and approved by the requisite FCC bureau shall be included with any application for ETC designation filed by an entity providing wireless service on a purely resale basis.

I. An applicant must comply with the Lifeline minimum service standards detailed at 47 CFR 54.408.

20VAC5-430-50. Complaints.

Each ETC shall designate a point of contact for the handling of customer complaints received by the commission. When contacted by a member of the commission staff regarding a customer complaint received by the commission, the ETC shall provide the commission staff a written response within 24 hours confirming contact with the customer and describing the plan for addressing the customer's complaint. The ETC shall provide commission staff a written confirmation when the customer complaint is resolved.

20VAC5-430-60. Reports to the State Corporation Commission.

A. Each ETC shall retain a listing of all of the service areas within Virginia in which the ETC has provided Lifeline service during the preceding 12 months and shall provide such to the commission staff upon request.

B. Each ETC shall promptly furnish such other information as the commission staff may reasonably request, unless otherwise ordered by the commission.

C. Within 30 days of submission to the FCC, each ETC shall submit a copy of its annual report to commission staff pursuant to 47 CFR 54.422.

D. Each ETC shall provide to the commission the annual notarized affidavit required to be filed to support the commission's designation of the use of federal universal service funds as required by 47 USC § 254(e).

20VAC5-430-70. Customer notice requirements.

An applicant shall include in its application, a copy of the rates, terms, and conditions, or weblink thereto, that describes to current and potential customers how notice of any change to rates, terms, and conditions of any aspect of the supported Lifeline service will be provided, including the amount of prior notice any customer will be entitled to before said change is put into effect. The notice to customers shall afford an adequate amount of time for the customer to select another provider before said change is put into effect.

20VAC5-430-80. Suspension of revocation of ETC designation.

A. No carrier shall unreasonably discriminate among subscribers requesting service. Any finding of discrimination may be grounds for suspension or revocation of the ETC designation of public convenience and necessity granted by the commission.

B. Excessive subscriber complaints against a wireless ETC that the commission has found to be meritorious may be grounds for suspension or revocation of the carrier's ETC designation.

C. In all proceedings pursuant to this section, the commission shall give notice to the carrier of the allegations made against it and provide the ETC with an opportunity to be heard concerning those allegations prior to the suspension or revocation of the ETC designation.

20VAC5-430-90. Abandonment or discontinuation of service.

No wireless ETC shall abandon or discontinue service, or any part of service established, unless it provides advance notice to the commission, which shall include a description of the notice to be provided to customers that ensures adequate time to find another service provider.

20VAC5-430-100. Commission authority.

The commission may, at its discretion, waive or grant exceptions to any provisions of this chapter.