NOTICES

PENNSYLVANIA PUBLIC
UTILITY COMMISSION

Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless Letter Request for Relinquishment of Eligible Telecommunications Carrier Designation

[50 Pa.B. 3993]
[Saturday, August 1, 2020]

Public Meeting held
July 16, 2020

Commissioners Present: Gladys Brown Dutrieuille, Chairperson; David W. Sweet, Vice Chairperson; John F. Coleman, Jr.; Ralph V. Yanora

Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless Letter Request for Relinquishment of Eligible Telecommunications Carrier Designation;
Docket Number P-2013-2382739

Order

Before the Commission:

 On June 10, 2020, Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless (Blue Wireless) filed a Notice with this Commission pursuant to 47 U.S.C. § 214(e)(4) seeking relinquishment of its designation as a Lifeline-only eligible telecommunications carrier (ETC) in the Commonwealth of Pennsylvania (Notice of Relinquishment). Blue Wireless served its Notice of Relinquishment on the Office of Consumer Advocate, the Office of Small Business Advocate, the Commission's Bureau of Investigation and Enforcement, the Commission's Law Bureau and the Office of Attorney General as evidenced by its certificate of service. No responses were filed to the Notice. The Commission will be treating Blue Wireless' Notice of Relinquishment as a petition for relief and hereby grants the requested relief in part and denies the requested relief in part.

Background

 Blue Wireless is a Maryland Limited Liability Company (LLC), with its principal place of business at 4915 Auburn Avenue, Suite 200, Bethesda, MD, 20814. Blue Wireless is a ''facilities based'' wireless telecommunications carrier holding a number of CMRS licenses issued by the Federal Communications Commission (FCC) and providing prepaid wireless services within Pennsylvania. Specifically, Blue Wireless provides wireless service coverage in the service areas of the following seventeen incumbent local exchange carriers (ILECs): Verizon North LLC, Verizon Pennsylvania, LLC, Citizens Telecommunications of New York, Inc., Consolidated Communications of Pennsylvania Company LLC, Frontier Communications Commonwealth Telephone Company, Frontier Communications of Canton, LLC, Frontier Communications of Oswayo River, LLC, Frontier Communications of Pennsylvania, LLC, Lackawaxen Telecommunications Services, Inc., The North-Eastern PA Telephone Company, North Penn Telephone Company, Palmerton Telephone Company, South Canaan Telephone Company, The United Telephone Company of Pennsylvania, d/b/a Century Link, Venus Telephone Corporation, Windstream Conestoga, Inc. and Windstream Pennsylvania, LLC.

 On September 10, 2013, at Docket Number P-2013-2382739, Blue Wireless filed a Petition seeking Commission approval to be designated as an ETC in the Commonwealth of Pennsylvania, pursuant to Section 214(e)(2) of the Communications Act of 1934, as amended, in the geographic areas in Pennsylvania where it offered and provided facilities-based wireless services. However, Blue Wireless sought designation as an ETC only for the limited purpose of receiving federal low-income universal service support for prepaid wireless services or what is commonly referred to as a Lifeline-only ETC.

 By an Order entered on November 13, 2014, the Commission designated Blue Wireless as a Lifeline-only ETC in the Commonwealth of Pennsylvania throughout its wireless service coverage area. Blue Wireless was directed to notify its existing customer base and the general public in the geographic service areas where it provides wireless services that it had been designated as a Lifeline-only ETC in Pennsylvania and to publicize the availability of its Lifeline program through general distribution media which may include print, radio and social network media. Additionally, Blue Wireless was advised that if at some point in the future it desired to relinquish its Lifeline-only ETC designation, it would agree to comply with the requirements of 47 CFR § 54.205.

 In its Notice of Relinquishment, Blue Wireless states that it is in the process of winding down and closing its wireless mobile voice telephone service and evaluating a shift of its business towards providing mobile broadband service only.¹ Blue Wireless further stated that it has ceased enrolling new mobile voice wireless subscribers effective April 27, 2020, and will cease the provision of mobile voice wireless telephone service to its existing customers, including its federal Lifeline customers, effective July 30, 2020. Specifically, Blue Wireless stated that it provided advanced notice of its cessation of service to its customers by mail and text messages on April 27 and 28, 2020. Additional text notifications were sent to all Lifeline customers on May 26, 2020 and on June 30, 2020. In addition, on June 1, 2020, Blue Wireless place calls to all Lifeline customers with a pre-recorded message to inform them of the pending end of service.² Lastly, Blue Wireless avers that its Lifeline customers will not be disadvantaged by its abandonment since other ETCs are currently providing Lifeline Service throughout Blue Wireless' designated service area.

Discussion

 In accordance with 47 CFR § 54.205(a), an ETC that seeks to relinquish its ETC status must give advance notice to the state commission of such relinquishment. Additionally, prior to permitting a telecommunications carrier designated as an ETC to cease providing universal service in an area served by more than one ETC, the state commission shall require the remaining ETC(s) to ensure that all customers served by the relinquishing carrier will continue to be served. 47 CFR § 54.205(b).

 In a September 3, 2013 Secretarial Letter that was sent to all Pennsylvania ETCs at Docket No. M-2013-2380576, the Commission basically adopted the same above criteria for relinquishment in its own rules and requirements for a carrier seeking the relinquishing of its ETC status in Pennsylvania. In the letter, the Commission advised all certificated ETCs that before they are allowed to relinquish their ETC designation in Pennsylvania, they must satisfy the criteria under the Telecommunications Act of 1996 (TA-96) and our rules governing petitions for relief. Specifically, we advised them that this Commission may grant a request to relinquish ETC status if the petitioning ETC demonstrates reliable, probative and substantial evidence of the following:

1. More than one ETC serves the service area(s) in question;

2. The ETC seeking to relinquish its ETC designation has provided advance notice to the Commission of such relinquishment;

3. The Commission, prior to authorizing the relinquishment, requires:

a. Remaining ETC(s) to ensure that all customers served by the relinquishing carrier will continue to be served;

b. Sufficient notice to permit the purchase or construction of adequate acilities by any remaining eligible telecommunications carrier.

See generally 47 U.S.C. § 214(e)(4); 47 CFR § 54.205.

 While TA-96 allows an ETC to relinquish its ETC status, and thus forego access to various federal funding sources, we note that the relinquishment process still remains focused on preservation of universal service. To further the federal and state universal service goals, the Commission also requires the following of a carrier that is seeking to relinquish its ETC designation:

1. All Petitions to relinquish ETC status must be accompanied by an affidavit or verification of an authorized individual;

2. The Petition must be served upon the statutory advocates, the Office of Consumer Advocate, Office of Small business Advocate, the Commission's Bureau of Enforcement & Investigation and all carriers referenced in the petition as being alternative ETCs;

3. Notice must be provided to all affected Lifeline customers as follows:

a. Written notice 90 days prior to the discontinuation of Lifeline service in the form of a stand-alone mailing separate from any billing or collections mailing;

b. Telephonic notice 60 days prior to the discontinuation of Lifeline service

c. Written notice 30 days prior to the discontinuation of Lifeline service in the form of a billing insert or stand-alone mailing;

4. The notices should inform affected customers of a date certain that Lifeline service will end, list alternative lifeline providers and offer assistance to those customers who wish to retain Lifeline service;

5. These notices must be attached to the Petition to Relinquish;

6. Petitioners are directed to ensure that the transition to another Lifeline provider is seamless for the Lifeline customer and ensure that the customer is not subject to additional connection fees or deposits. Also, the Petitioner is to assist the Lifeline customer with any lifeline certification occasioned by the petition.

 As mentioned earlier, Blue Wireless states in its Notice of Relinquishment that it will cease its provision of wireless telephone service to its existing customers effective July 30, 2020 and thus, seeks to relinquish its designation as a Lifeline-only ETC in Pennsylvania. The Commission's regulations allow for a party seeking relief to file a petition as set forth in 52 Pa. Code § 5.41 (relating to Petitions). In this proceeding, Blue Wireless has only filed a Notice of Relinquishment and related information with the Commission seeking our approval to relinquish its designation as a Lifeline-only ETC.

 While Blue Wireless' request for relief does not comply with Section 5.41 of our regulations, instead of dismissing the filing, the Commission will exercise its discretion to treat the Notice of Relinquishment as a petition that was rightfully filed in compliance with the Commission's procedural regulations. Generally, we may overlook minor procedural defects in order to secure the just speedy or inexpensive determination of every matter or proceeding to which its regulations apply. 52 Pa. Code § 1.2(a). Additionally, we note that Blue Wireless served its Notice of Relinquishment on the statutory advocates and the Commission's Bureau of Investigation and Enforcement and no party opposed the filing. Thus, in the interest of a just and expeditious resolution of the matter, the Commission will overlook the minor procedural defects of the instant filing and rule on its merits as any procedural defect regarding Blue Wireless' request for relief does not affect the substantive rights of any interested party.

 Blue Wireless advised the Commission that 1,206 Lifeline customers are subject to its decision to relinquish its Lifeline-only ETC designation. In support of its request, Blue Wireless asserts that it has complied with all of the federal and state notice requirements regarding the relinquishment of its ETC designation. In particular, Blue Wireless states that it has provided the required advanced customer notices regarding its plans to cease providing service to its Lifeline customers and also advised them in the customer notice that it is necessary for them to obtain a new cell phone provider.³

 The Commission notes that all of Blue Wireless's Lifeline service plans are offered on a prepaid basis and that its Lifeline customers were to be advised of the billing method prior to establishing Lifeline service with the company. We also note that generally a Lifeline subscriber that chooses a Blue Wireless Lifeline Plan will be billed by text message, but Blue Wireless has stated that it would accommodate individual requests for paper bills as needed. Notwithstanding, Blue Wireless has stated that it provided the requisite ninety-days advance notice of its cessation of service to its customers both by mail and via text messages on April 27 and 28, 2020.

 Additionally, Blue Wireless sent additional customer notifications to its Lifeline customers of the pending cessation of service on May 24, 2020. Further, in a supplement to the Notice of Relinquishment that was filed on July 9, 2020, in response to a staff inquiry, Blue Wireless stated that it also sent its customers text messages on May 26, 2020 and June 3, 2020, reminding them that their service would be ending on July 30, 2020.⁴ Also, in this supplemental filing, Blue Wireless stated that on June 1, 2020, the company placed calls to all Lifeline customers with a pre-recorded message regarding the pending cessation of Lifeline service. Lastly, Blue Wireless asserts that it planned to send another customer notification regarding the pending cessation of service on June 30, 2020. Accordingly, based on this information, we find that Blue Wireless has given appropriate and sufficient advanced notice regarding its planned cessation of Lifeline service to its Lifeline customers.

 Further, in support of its request to relinquish its Lifeline-only ETC designation, Blue Wireless states that several Lifeline service providers including SafeLink and Assurance Wireless operate and serve customers in its wireless coverage area. Blue Wireless also asserts that in addition to these competitive certificated Lifeline providers in its wireless service area, there are also incumbent local exchange carriers in its wireless service coverage area that provide Lifeline service. While it does not appear that Blue Wireless served its Notice of Relinquishment on these other Lifeline service providers as required by our September 3, 2013 Secretarial letter, we note that as recently of July 8, 2020, 88 of Blue Wireless' 1,206 Lifeline customers had migrated to another Lifeline service provider after receiving the customer notices.⁵

 Taking note of this fact, we understand that Blue Wireless is still serving approximately 1,118 Lifeline customers. The Commission requires the relinquishing ETC to make good faith efforts to ensure that its remaining customers are being transferred to other competitive ETCs in its service area. Consequently, it is incumbent for Blue Wireless to ensure that its remaining Lifeline customers are transferred or migrated to another Lifeline service provider in a seamless manner so that the customers are not subject to additional connection fees or deposits by the new Lifeline service provider. Also, Blue Wireless must assist the migrating Lifeline customer with any Lifeline certification that is necessary to obtain service from the new Lifeline provider.

 It is the responsibility of the state commission to ensure that all remaining customers served by the relinquishing carrier will continue to be served prior to permitting a telecommunications carrier designated as an ETC to cease providing service in an area served by more than one ETC. Since not all of Blue Wireless' Lifeline customers have been migrated to a new Lifeline service provider, we are directing Blue Wireless to continue providing Lifeline service to its remaining Lifeline customers until they have all been successfully migrated to one of the remaining ETC(s) in the service areas. Accordingly, Blue Wireless may not discontinue service and abandon customers without our approval and until this condition is fully met.

 To fulfill this condition, Blue Wireless is directed to track the progress of the customer migrations for its remaining Lifeline customers and provide to the Commission's Bureau of Consumer Services a progress report on the number of Lifeline customers that have and have not migrated to a new Lifeline service provider within twenty days of the entry of this Order. Blue Wireless shall continue to provide Lifeline service to its remaining Lifeline customers until such time as those customers have obtained comparable service from an alternate Lifeline service provider.

 Upon full consideration of all matters of record pertaining to this request for relinquishment of an ETC designation, we determine that is in the public interest to grant Blue Wireless' request in part, and deny it in part consistent with the above discussion; Therefore,

 It Is Ordered That:

 1. Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless' request to relinquish its ETC designation is hereby approved in part and denied in part.

 2. Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless shall not be authorized to cease providing Lifeline services in Pennsylvania, but rather shall continue to provide Lifeline service to its remaining Lifeline customers until such time as those Lifeline customers have migrated and obtained comparable service from another Lifeline provider in Blue Wireless' designated service area.

 3. If necessary, Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless shall assist the migrating Lifeline customer with any Lifeline certification that is necessary to obtain service from the new Lifeline provider.

 4. Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless shall track the progress of customer migrations for its remaining Lifeline customers and shall provide the Commission's Bureau of Consumer Services with a progress report on the number of remaining Lifeline customers that have and have not migrated to a new Lifeline service provider within twenty days of the entry of this Order.

 5. Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless shall aver in its twenty-day customer migration progress report that all remaining Lifeline customers have obtained Lifeline service from alternate competitive Lifeline providers in a seamless manner so that the migrating Lifeline customer is not subject to additional connection fees or deposits by the new Lifeline service provider.

 6. Upon successful completion of the directive in Ordering Paragraph No. 4 above, Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless shall continue to file progress reports regarding customer migrations until all remaining Life customers have obtained comparable service from another Lifeline provider in Blue Wireless' designated service area and shall aver in its customer migration progress report that all remaining Lifeline customers have obtained Lifeline service from alternate competitive Lifeline providers in a seamless manner as denoted in Ordering Paragraph No. 5.

 7. The Secretary's Bureau serve a copy of this Order upon the Office of Consumer Advocate, the Office of Small Business Advocate, and the Bureau of Investigation & Enforcement, and also cause a copy of this Order to be published in the Pennsylvania Bulletin.

 8. Upon Buffalo-Lake Erie Wireless Systems Co., LLC, d/b/a Blue Wireless' successful completion of migrating all of its remaining Lifeline customers to other Lifeline providers operating in its designated service area, it shall be authorized to relinquish its Lifeline-only ETC designation in Pennsylvania and the record shall be mark closed.

ROSEMARY CHIAVETTA, 
Secretary

[Pa.B. Doc. No. 20-1057. Filed for public inspection July 31, 2020, 9:00 a.m.]

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¹  The Commission notes that the United States Court of Appeals for the District of Columbia Circuit issued its ruling in the Mozilla Corporation vs Federal Communications Commission (Mozilla) case and largely upheld the FCC's decision in the 2018 Restoring Internet Freedom Order, Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd 311 (2017) (Restoring Internet Freedom Order), reclassifying broadband internet access service (BIAS) as an ''information service'' and repealing network neutrality rules. The implication of the reclassification decision is that broadband-only providers appear to be wholly outside of the jurisdiction of the states. However, the Mozilla Court also remanded aspects of the Restoring Internet Freedom Order to address the implications on this reclassification for public safety, pole attachments, and the Lifeline program. With regards to Lifeline, the Mozilla Court questioned the FCC's authority to continue to direct that Lifeline support be provided to ETCs providing broadband service to qualifying low-income consumers. In particular, the Mozilla Court determined that the BIAS reclassification decision affects the FCC's prior determination that it has the legal ''authority under Section 254(e) of the Act to provide Lifeline support to ETCs that provide broadband service over facilities-based broadband-capable networks that support voice service,'' and that ''[t]his legal authority does not depend on the regulatory classification of broadband Internet access service.'' Mozilla, 940 F.3d at 68—70 (internal citations removed) (citing Restoring Internet Freedom Order, 33 FCC Rcd at 426, para. 193).

²  Corrected Supplemental Notice dated July 13, 2020.

³  See fn. 4 of the Notice of Relinquishment.

⁴  July 9th Supplemental filing.

⁵  July 9th Supplemental filing.

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