Title of Regulation: 20VAC5-430. Rules Governing Designation of a 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.

Effective Date: May 22, 2023.

Agency Contact: Mike Cizenski, Deputy Director, Public Utilities Regulation Division, State Corporation Commission, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9441, or email mike.cizenski@scc.virginia.gov.

Summary:

Pursuant to Chapter 436 of the 2022 Acts of Assembly, the 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 (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 commission. Changes to the proposed regulation are clarifying of provisions.

AT RICHMOND, APRIL 27, 2023

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. PUR-2022-00107

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 ADOPTING RULES

On July 27, 2022, the State Corporation Commission ("Commission") 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. 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 the determination of what rules and regulations would be necessary to implement the provisions of Chapter 436 of the 2022 Acts of Assembly, the Commission ordered that proposed rules ("Proposed Rules") prepared by the Staff of the Commission ("Staff") be published for public review, 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.

Staff filed proof of the newspaper publication ordered by the Commission on August 23, 2022. The Proposed Rules were published in the Virginia Register of Regulations on August 29, 2022.¹ Comments on the Proposed Rules were filed on September 26, 2022, by Assurance Wireless USA, L.P. ("Assurance"), and Virginia Cable Telecommunications Association ("VCTA"). On September 27, 2022, the comments of the National Lifeline Association ("NLA") were filed.² No one requested that a hearing be held on the Proposed Rules.

On October 24, 2022, Staff filed a Staff Report reviewing the comments received from Assurance, VCTA, and NLA. The Staff Report also described the extent to which these comments led to any recommendations from Staff for modifying the Proposed Rules. Staff's proposed revisions were attached to the Staff Report as Revised Proposed Rules.

NOW THE COMMISSION, upon consideration of the foregoing and of the applicable law, is of the opinion and finds that the Rules Governing Designation of a Commercial Mobile Radio or Cellular Telephone Service Provider as an Eligible Telecommunications Carrier ("ETC Lifeline Wireless Rules"), 20VAC5-430-10 et seq., as set forth in the Appendix to this Order, should be adopted.

Accordingly, IT IS ORDERED THAT:

(1) The Commission's Rules Governing Designation of a Commercial Mobile Radio or Cellular Telephone Service Provider as an Eligible Telecommunications Carrier, 20 VAC 5-430-10 et seq., as set forth in the Appendix to this Order, are hereby adopted and shall become effective May 22, 2023.

(2) A copy of this Order and the ETC Lifeline Wireless Rules as set forth in the Appendix thereto shall be forwarded to the Registrar of Regulations for publication in the Virginia Register of Regulations.

(3) An electronic copy of this Order shall be made available on the Division of Public Utility Regulation's section of the Commission's website: scc.virginia.gov/pages/Rulemaking.

(4) This case is dismissed.

Commissioner Patricia L. West participated in this matter.

A COPY hereof shall be sent electronically by the Clerk of the Commission to:

Eric M. Page, Esquire, and Cody T. Murphey, Esquire, Eckert Seamans Cherin & Mellott, LLC, 919 East Main Street, Suite 1300, Richmond, Virginia 23219, epage@eckertseamans.com, cmurphey@eckertseamans.com; Peter E. Broadbent, Jr., Esquire, Timothy G. McCormick, Esquire, and Dannieka N. McLean, Esquire, Christian & Barton, LLP, 901 East Cary Street, Suite 1800, Richmond, Virginia 23219; pbroadbent@cblaw.com, tmccormick@cblaw.com, dmclean@cblaw.com; John J. Heitmann, Esquire, Joshua Guyan, Esquire, Debra McGuire Mercer, Esquire, and Alex Espinoza, Esquire, Nelson Mullins Riley & Scarborough LLP, 101 Constitution Avenue N.W., Suite 900, Washington, DC 20001, john.heitmann@nelsonmullins.com, joshua.guyan@nelsonmullins.com, debra.mercer@nelsonmullins.com, alex.espinoza@nelsonmullins.com; 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.

______________________

Chapter 430

Rules Governing Designation of a 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:

[ "Applicant" means a provider of commercial mobile radio or cellular telephone services seeking ETC designation for purposes of providing Lifeline service pursuant to § 56-479.4 of the Code of Virginia. ]

"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 [ that is, a common carrier so designated by the commission in accordance with 47 USC § 214; associated regulations pursuant thereto (see 47 CFR 54.5 and Part 54, Subpart C); and § 56-479.4 of the Code of Virginia ].

"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 [ pursuant to § 56-479.4 of the Code of Virginia ] 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 certify ] 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 certify ] 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 within 30 days of ] 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 service provider ] and whether anyone else living at the prospective subscriber's residential address is currently receiving a Lifeline service.

E. An applicant shall [ attest demonstrate ] 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 conduct or transact ] 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 conduct or transact ] 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 the ] applicant or the entity responsible for the financing of [ an the ] applicant, for the two most recent annual periods. Audited financial statements shall be provided, if available, including notes to the financial statements and [ an ] 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 jurisdictions ] where the applicant, parent, or any affiliate is designated as an [ ETC eligible telecommunications carrier ], including the date service was commenced for each.

4. An applicant shall [ also ] provide a list of any [ state jurisdictions ] where an [ ETC eligible telecommunications carrier ] 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 jurisdictions ] where the applicant, parent, or any affiliate has had its [ ETC eligible telecommunications carrier ] 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 An applicant shall state ] whether the applicant intends to offer the Lifeline service [ over using ] 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 seeking ] designation as an ETC that does not own facilities must [ affirm certify ] 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 [ in accordance with the FCC's grant of forbearance from enforcement of the 47 USC § 214 facilities requirement to carriers seeking Lifeline-only ETC designation ].

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

9. An applicant shall [ affirm certify ] 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 [ , or as set or waived by the FCC, or the FCC's bureaus, by designated authority ].

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 an ETC's annual reporting of information ] to the FCC [ required pursuant to 47 CFR 54.422, ] each ETC shall submit [ a copy of its annual report to ] to the commission staff [ a copy of said report ].

[ 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 [ service ] provider before said change is put into effect [ but shall not be less than 14 days ].

20VAC5-430-80. Suspension [ of or ] 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 not have been addressed and resolved satisfactorily ] 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 any ] suspension or revocation of the ETC designation.

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

[ No To the extent not otherwise governed by 47 USC 214(e)(4) and 47 CFR 54.505, no ] wireless ETC shall [ otherwise ] abandon or discontinue [ Lifeline ] service, or any part of [ service services ] established, unless it provides [ at least seven days' ] 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 [ , or at least 30 days' notice ].

20VAC5-430-100. Commission authority.

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

[ B. This chapter shall be enforced by the commission pursuant to the authority provided under §§ 12.1-13 and 12.1-33 of the Code of Virginia. ]