[00:00:01] Speaker 02: Case number 18-1026 at L, National Lifeline Association at L Petitioners versus Federal Communications Commission at L. Mr. Heitman for Petitioners National Lifeline Association at L, Mr. Goyle for Petitioner Pearl Creek Sioux Tribe, and then Sue Davidson for respondents. [00:00:21] Speaker 04: Good morning. [00:00:21] Speaker 03: Good morning, and may it please the court. [00:00:23] Speaker 03: I'm John Heitman, and I represent Petitioners National Lifeline Association. [00:00:28] Speaker 03: Assist, boomerang, and easy wireless. [00:00:31] Speaker 03: The fourth report in order is arbitrary and capricious because the Commission failed to consider the impact of its decisions to ban resellers and to limit Tribal Lifeline service to rural lands on the very low-income consumers the Tribal Lifeline program is designed to help. [00:00:45] Speaker 03: As the Court recognized in its order granting a stay, these rules will result in the mass disconnection of Tribal Lifeline subscribers. [00:00:53] Speaker 03: The Commission simply ignored record evidence that showed that the challenged rules would leave up to two-thirds of all Tribal Lifeline subscribers with no service and no way to call 911 to get a job and talk to a teacher. [00:01:06] Speaker 03: to schedule a doctor's appointment or to simply stay connected to family and community. [00:01:10] Speaker 03: Because the commission failed to account for a lack of affordable alternatives or even alternative service providers for many trouble lifeline customers, it failed to consider important aspects of the problem before it rendering its decision arbitrary and capricious. [00:01:25] Speaker 03: Turning to specific rules, the tribal facilities requirement is arbitrary and capricious because the commission failed to consider the impact of the rule on affordability and subscribership. [00:01:35] Speaker 03: For nearly two decades, the Commission has consistently recognized that affordability and subscribership are not just a goal, but the primary goal of the Tribal Lifeline Program. [00:01:44] Speaker 03: No other FCC program serves this need. [00:01:46] Speaker 03: Instead of performing a meaningful assessment of the impact of its tribal facilities requirement on affordability and subscribership, the Commission speculates, quote, directing enhanced Lifeline funds to facilities-based services makes those services more affordable and competitive for low-income consumers. [00:02:04] Speaker 03: However, the Commission failed to perform any analysis of any kind to identify what services it was talking about, where those services are actually available, whether Tribal Lifeline Services will be made available by facilities-based providers that don't offer them today, [00:02:20] Speaker 03: or whether such services will be affordable and comparable to the services the Tribal Lifeline subscribers already rely on. [00:02:26] Speaker 03: Moreover, the Commission's speculation actually conflicts with record evidence demonstrating that the elimination of services provided by wireless resource in particular would make service less affordable. [00:02:35] Speaker 05: You don't dispute that a policy goal to the Commission to build out last mile infrastructure is a good thing? [00:02:46] Speaker 03: I, Your Honor, I do think that it's a good policy to build that last mile infrastructure, and the Commission has several... And consistent with the statutes, right? [00:02:54] Speaker 03: Yes. [00:02:55] Speaker 03: Yeah. [00:02:55] Speaker 03: Consistent with the statutes that mandate for universal service. [00:02:58] Speaker 03: But the lifeline program is not about necessarily where facilities don't exist. [00:03:03] Speaker 03: By its very nature, providing a discount on services that are available, it's about where facilities already are in place. [00:03:09] Speaker 05: So in 2000, when the Commission established the total lifeline... But can't the Commission make the judgment that in the long term, [00:03:15] Speaker 05: the needs of the tribal members we best met if you build out the last mile infrastructure? [00:03:24] Speaker 03: I think the Commission could make that decision, and I think it has made that decision in other dockets, right? [00:03:30] Speaker 03: But in this case, in the history of the Tribal Lifeline Program, it has always been about affordability and where networks already exist. [00:03:38] Speaker 03: And yes, I think it was a secondary goal of the program to incent more deployment of Tribal lands, and the idea [00:03:45] Speaker 05: Is the problem here simply that the Commission hasn't adequately explained its emphasis on infrastructure? [00:03:56] Speaker 03: I think that is one problem. [00:03:57] Speaker 03: Or is there something more basic going on? [00:03:59] Speaker 03: I think that's one problem. [00:04:00] Speaker 03: I think under the Encino Motorcars case, for example, if the Commission wants to repurpose this program, [00:04:06] Speaker 03: and change it from an affordability program to primarily an infrastructure program. [00:04:10] Speaker 03: It needs to explain that and acknowledge that change and then square it with the history and the precedents that brought it to this day and understand what it's doing. [00:04:19] Speaker 03: It has to explain to the people and address serious reliance interests of tribal people who are on this program that it's doing something else with these funds. [00:04:28] Speaker 06: In order to have a reseller, there has to be infrastructure in place. [00:04:34] Speaker 06: That's correct. [00:04:36] Speaker 06: And if you withdraw the reseller, then the facility owner will not take up the slack? [00:04:42] Speaker 03: I think that's right, Your Honor. [00:04:44] Speaker 03: I think the facts are in the record. [00:04:47] Speaker 03: Not one major wireless network owner in the United States, not Sprint, not Verizon, not AT&T, not T-Mobile, provides lifeline service in any meaningful way, and certainly not tribal lifeline service. [00:04:59] Speaker 03: They have chosen voluntarily to resell, to partner with resellers and wholesale their networks. [00:05:04] Speaker 03: Why? [00:05:05] Speaker 03: Because resellers are more efficient at reaching this population. [00:05:08] Speaker 03: and they don't have to incur all the burdens that it takes to serve this population. [00:05:13] Speaker 03: It is a high-cost population to serve, and the Lifeline program has significant compliance requirements that AT&T in particular called out as something it wanted to avoid. [00:05:22] Speaker 06: As a result... Why isn't it just as probable that the facility owners, like Sprint and so on and so forth, are not in the market because the resellers are able to undercut them? [00:05:36] Speaker 06: and price the service lower than they could. [00:05:40] Speaker 06: But if you withdraw the resellers, then maybe they will. [00:05:47] Speaker 06: What's the logic in saying that the facility owners won't fill the vacuum? [00:05:56] Speaker 03: Your Honor, the facility owners haven't filled the vacuum. [00:05:58] Speaker 03: The facility owners, this rule does, it doesn't change one thing, right? [00:06:02] Speaker 03: The facility owners already have access to the Tribal Lifeline Program. [00:06:05] Speaker 03: They already have access to the subsidy. [00:06:07] Speaker 03: They have chosen uniformly not to take advantage of it. [00:06:10] Speaker 03: And in terms of the resale and the argument that the resellers undercut the facilities-based providers on price, [00:06:17] Speaker 03: This is unlike wireline, where wireline resale is compelled by the Act. [00:06:21] Speaker 03: Wireless resale is not compelled by the Act. [00:06:23] Speaker 03: It's completely voluntary. [00:06:25] Speaker 03: Sprint and T-Mobile and Verizon, for example, voluntarily wholesale their networks and partner with companies like Boomerang, like Assist and EZ, because these companies are more efficient at serving this population. [00:06:39] Speaker 03: and they don't want to incur the expenses of serving this population or complying with the thiccative Commission rules that govern this program. [00:06:48] Speaker 06: Was part of your argument that the last, it's not only that you're cutting out the resource, but also the last mile [00:06:56] Speaker 06: requirement is arbitrary and capricious in itself because even a facility-based provider doesn't necessarily all the time have the last mile. [00:07:08] Speaker 06: It may be somebody else's [00:07:10] Speaker 03: I think that's correct, particularly acknowledging that 90 percent of the Lifeline program is wireless at this point. [00:07:17] Speaker 03: And so the mobile nature of that service means the last mile moves. [00:07:21] Speaker 03: It moves with me. [00:07:22] Speaker 03: It moves with you. [00:07:23] Speaker 03: And so you can't always tell when the consumer is being served by that company's spectrum. [00:07:29] Speaker 03: And that's why these companies have roaming agreements. [00:07:31] Speaker 03: And that's why they have resale agreements and other partnerships to serve customers wherever they might go. [00:07:36] Speaker 03: And so in this case, the last mile facility is something that's really hard to get. [00:07:42] Speaker 03: These Spectrum licenses cost millions, if not billions of dollars. [00:07:46] Speaker 03: They're not auctioned every day. [00:07:48] Speaker 03: And so it is not like a wireless reseller today could buy Spectrum to serve their customers and provide the mobile service that they do, because they need mobile service that follows them wherever they go. [00:08:01] Speaker 04: Do you want to save your time for rebuttal? [00:08:04] Speaker 01: Yes. [00:08:04] Speaker 01: Thank you. [00:08:22] Speaker 01: Good morning. [00:08:23] Speaker 01: May it please the court? [00:08:24] Speaker 01: Shiva Goyal representing petitioner Crow Creek Sioux Tribe. [00:08:28] Speaker 04: There's a button on the side if you want to raise the podium. [00:08:40] Speaker 01: Thank you. [00:08:41] Speaker 01: Thank you, Your Honor. [00:08:43] Speaker 01: Crow Creek is here because the FCC's order would drastically reduce the ability of Crow Creek and similarly situated tribes to access affordable communications. [00:08:53] Speaker 01: Now that outcome is flatly contrary to the order's own statement of the commission's objective, which was to, quote, increase availability and affordability on tribal lands. [00:09:05] Speaker 01: Now the disconnect between what the commission's stated objective was on the one hand and what would actually happen on the other is the product of two fundamental errors in decision making that I'd like to talk about today. [00:09:18] Speaker 01: The first, as Mr. Heitman suggested, and as a panel of this Court already concluded, the Commission neglected to consider that for many tribes there is no facilities-based wireless carrier willing to provide lifeline service. [00:09:34] Speaker 01: And what that means is targeting support [00:09:38] Speaker 01: to facilities-based providers doesn't shift funds from one type of provider to another type of provider. [00:09:44] Speaker 01: It often shifts funds from one type of provider to nobody at all at a tremendous cost to the access the order sought to promote. [00:09:54] Speaker 01: Second, the commission unreasonably assumed that by limiting the tribal subsidy to facilities-based carriers, more lifeline dollars would go to investment, when the record actually suggested that the investment the commission was trying to promote would dry up. [00:10:12] Speaker 01: Now on the first point, the practical problem facing Crow Creek and other tribes like it is this. [00:10:18] Speaker 04: So following up on Judge Randolph's question, [00:10:21] Speaker 04: Would your point be that some sort of transition period would have a minimum been required in the sense that maybe down the road the majors would fill in the gap? [00:10:41] Speaker 01: Your Honor, I think the problem is more fundamental than that. [00:10:43] Speaker 04: No, I understand that. [00:10:44] Speaker 04: I mean, I understand that's your position in your brief, but I just wanted to follow up on the judge's question. [00:10:51] Speaker 01: Sure. [00:10:52] Speaker 01: So Judge Randolph had asked a question about... What's the logic? [00:10:56] Speaker 01: What's the logic? [00:10:58] Speaker 01: Will facilities-based providers pick up the slack, I think he asked. [00:11:02] Speaker 01: And the answer to that question is no, and there's certainly no evidence of it on the record. [00:11:07] Speaker 01: Now, the single facilities-based wireless provider that has left Lifeline [00:11:11] Speaker 01: said they would rejoin if resellers are eliminated. [00:11:15] Speaker 01: And in fact, the record showed that these large facilities-based providers, the largest ones in the country with the largest networks in the country, have been relinquishing their very right to participate in the Lifeline program. [00:11:27] Speaker 01: They haven't been keeping the door open. [00:11:29] Speaker 04: I don't want to get in the weeds here, but I thought there was some reference to Sprint providing something. [00:11:36] Speaker 01: Sure, and Your Honor, Sprint is [00:11:38] Speaker 01: the only among the four biggest carriers that participates meaningfully in Lifeline, but they do not participate in Tribal Lifeline. [00:11:53] Speaker 01: Now, again, to the point of Judge Rogers and Judge Randolph, in addition to relinquishing their right to participate in the program, these large carriers were clear about why they didn't want to participate. [00:12:08] Speaker 01: AT&T said, quote, the administrative burdens were too significant for the amount of support available. [00:12:15] Speaker 01: And that amount of support isn't changing from this order. [00:12:19] Speaker 06: Now, the other reason you can't really expect facilities-based providers to pick up the slack, so to speak, is that... So the rule doesn't... Well, does the rule prohibit any kind of subsidy? [00:12:34] Speaker 06: It's only the extra subsidy for the tribes, right? [00:12:39] Speaker 06: That's right, Your Honor, but... Do these have to be federally recognized tribes? [00:12:46] Speaker 06: Yes. [00:12:47] Speaker 01: I believe so, but I'm not sure. [00:12:49] Speaker 01: Crow Creek is a federally recognized tribe. [00:12:53] Speaker 01: And I would add that the enhanced tribal subsidy is, I think, about roughly two-thirds, if the math works out, certainly over 60 percent of the subsidy that a tribal lifeline provider would get. [00:13:08] Speaker 06: So I guess my question is, would the resellers' withdrawal [00:13:14] Speaker 06: Because instead of getting $25 or $29, they're only getting $9? [00:13:20] Speaker 01: We certainly saw some evidence of that at the state stage and in the state papers and on the record before the commission. [00:13:28] Speaker 01: If resellers fell short of complete withdrawal, certainly there would be a reduction in service. [00:13:34] Speaker 01: If they're getting almost $35 in a subsidy now, which is what the commission determined would be needed given the affordability crisis in tribes with concentrated poverty, dropping that down to $9.25 is going to result in a loss of service. [00:13:53] Speaker 06: So to take the Navajo reservation, the checkerboard reservation, [00:13:58] Speaker 06: which I'm sure you're familiar with. [00:14:01] Speaker 06: If you have one parcel in this checkerboard that is non-Indian, that is owned in fee simple by non-Indian individuals, and then the adjacent checkerboard square is Navajo, [00:14:19] Speaker 06: The Navajos, and it's remote, the people in the non-Indian section only get $9, and the people in the Navajo section get $35. [00:14:30] Speaker 06: Is that the situation? [00:14:33] Speaker 01: Your Honor, I think that might depend on how tribal land is defined by the FCC, and I know it's not limited to reservations alone, but I [00:14:41] Speaker 01: I frankly don't know exactly the answer to that question. [00:14:47] Speaker 06: Isn't that one of the questions that is now under consideration in the new rulemaking? [00:14:55] Speaker 06: about whether there should be a division between, you know, if you're remote, you're remote, right? [00:15:01] Speaker 06: Whether you're a Native American or whether you're a, you know, whatever. [00:15:08] Speaker 01: Sure, Your Honor. [00:15:08] Speaker 01: That is an issue that the Commission has considered, but when it adopted the Tribal Lifeline Subsidy, [00:15:17] Speaker 01: It did so because of an affordability crisis, not just because of the difficulty of serving rural areas with infrastructure, but because of an affordability crisis and because of specific statistics showing that the adoption of basic communications was so low in tribal areas as compared to the rest of the country that they had to do something. [00:15:38] Speaker 05: Should we make anything of the fact that you all haven't raised your procedural arguments here? [00:15:45] Speaker 01: No, Your Honor, and we're happy to argue them. [00:15:49] Speaker 01: Frankly, these substantive issues that we're raising, the consumer harm, the lack of access to a facilities-based wireless care, these are issues that we think we could have shown the magnitude to the Commission had it observed proper procedure. [00:16:07] Speaker 01: But in 2016, March of 2016, the commission said, we're declining to adopt the rule. [00:16:12] Speaker 01: We're not prejudging it in a future where we'll examine tribal issues, not just with Lifeline, but with other universal service programs. [00:16:20] Speaker 01: They stopped the record. [00:16:21] Speaker 01: There was no reason at that point to continue filing and predict that this order might come through and talk to some of the tribes that have come out of the woodwork [00:16:31] Speaker 01: Since the order was adopted, tribes like Leech Lake in Minnesota that participated with declarations at the stage before this court and said, we've got the exact same problem. [00:16:41] Speaker 01: And for an analytic issue that goes to the heart of the order's core justification for what it was doing, showing the commission [00:16:53] Speaker 01: by coordinating with other tribes that this is a real issue and it's a big issue was clear prejudice. [00:17:00] Speaker 04: Let me press a little bit here. [00:17:02] Speaker 04: One of the arguments being made, it seems to me, by the commission is that the record has all this data in the sense that the history of this whole lifeline [00:17:19] Speaker 04: program, et cetera, establishes that there's a need, that there's a problem. [00:17:26] Speaker 04: And the commission says, essentially, my words, not its words. [00:17:35] Speaker 04: Even the dissenting opinions show that the commission was aware of some of the key facts that you're arguing. [00:17:44] Speaker 04: So my question is, [00:17:47] Speaker 04: What specifically would a notice and comment period that was adequate in your view have allowed the tribes to do? [00:18:00] Speaker 04: One of the points you make in your brief is that they could have talked about alternatives to some of the things that the commission adopted. [00:18:10] Speaker 04: And there was a comment I think in the next party letter that in order [00:18:16] Speaker 04: provide meaningful comment on the definitional change, the Commission had to make the maps available. [00:18:26] Speaker 04: Are there other specific things that would have come up? [00:18:31] Speaker 04: where tribes, you mentioned one tribe didn't even know about it, and I gather even the draft was not available from the Federal Register. [00:18:42] Speaker 01: That's right, Your Honor. [00:18:43] Speaker 01: The draft was not available in the Federal Register, and it only gave you two weeks to say anything about it. [00:18:48] Speaker 01: But to your question about what specifically we could have said, one, as I mentioned before, [00:18:53] Speaker 01: the size of the problem, the size of the problem that the commission did not even bother to acknowledge, let alone defend the order against in the order. [00:19:00] Speaker 01: Another thing we could have discussed to the same point is, look, a lot of time passed since the first comment cycle in late 2017 when the order was adopted. [00:19:10] Speaker 01: What happened during that time? [00:19:12] Speaker 01: The problem that we're talking about got bigger. [00:19:15] Speaker 01: the largest facilities based carriers continue to pull out. [00:19:18] Speaker 01: They continue to apply for relinquishment of their license, their authorization to provide lifeline in states around the country. [00:19:26] Speaker 06: Well, the original comment period was 30 days, right? [00:19:32] Speaker 01: I believe it was longer than that, Your Honor, including the reply phase. [00:19:37] Speaker 06: Well, I'm not including the reply. [00:19:38] Speaker 06: Just the original comment period was 30 days in the 2015 notice of proposed rulemaking. [00:19:47] Speaker 06: And here it was 14 days, you say? [00:19:49] Speaker 06: From the notice to the final... So from the draft order, which we don't believe is a substitute... But the point you just made, I understand it, but did you ever, on behalf of your clients, did you ever ask... [00:20:07] Speaker 06: that the original comment period, the 30 days plus the 60 days for reply, be reopened in light of additional evidence? [00:20:17] Speaker 01: Sure, Your Honor. [00:20:18] Speaker 01: So after the draft order was released, that's when? [00:20:20] Speaker 06: No, not the draft order. [00:20:22] Speaker 06: I mean, between the period when the 2015 notice of proposed rulemaking came out and before the fourth order. [00:20:32] Speaker 06: And you say there were developments. [00:20:34] Speaker 06: Did you ever ask to reopen the comment period? [00:20:38] Speaker 01: So, Your Honor, if we're talking about the period between the end of the comment cycle in 2015 and the release of the draft order, is that the right time frame? [00:20:47] Speaker 01: Intervening events gave us every reason not to expect that this order would come out without the Commission on its own seeking further comment. [00:20:57] Speaker 01: What were the intervening events? [00:20:59] Speaker 01: The intervening event was the Commission's adoption of its 2016 Lifeline Modernization Order, where in paragraph 211 of the order the Commission said, [00:21:09] Speaker 01: Without prejudging rules like the tribal facilities requirement and the tribal rural limitation, without prejudging those issues, we're not adopting them today. [00:21:19] Speaker 01: We'll hold them open in a, quote, future proceeding that is more comprehensively focused on tribal broadband deployment. [00:21:28] Speaker 01: No reasonable person could have understood those words to mean what the Commission has said it means in its brief, which is an order adopted in a Lifeline-specific proceeding. [00:21:42] Speaker 01: There are two problems. [00:21:42] Speaker 01: An order is not a proceeding under the APA or the Commission's own rules. [00:21:46] Speaker 01: And second, an order in a Lifeline proceeding necessarily does not consider matters outside Lifeline, and therefore it's not more comprehensive [00:21:55] Speaker 01: than the proceeding as it exists today. [00:21:58] Speaker 06: So by the commission's statement in the 2016 that was a future or further consideration in a future proceeding, are you suggesting that because of that there was no incentive for you on behalf of your clients to ask for the original 2015 comment period to be reopened in light of additional evidence? [00:22:21] Speaker 01: That's correct, Your Honor. [00:22:22] Speaker 01: We thought the matter had been effectively closed until further notice from the Commission. [00:22:30] Speaker 04: Anything further? [00:22:32] Speaker 01: No, Your Honor. [00:22:32] Speaker 04: All right. [00:22:33] Speaker 04: Thank you. [00:22:42] Speaker 00: Good morning. [00:22:43] Speaker 00: Good morning. [00:22:46] Speaker 00: Good morning, may it please the court? [00:22:47] Speaker 00: My name is Kaila Sundrason and I represent the Federal Communications Commission and the United States. [00:22:53] Speaker 00: There have been a number of issues discussed this morning. [00:22:55] Speaker 00: I'm happy to address them. [00:22:56] Speaker 00: I'd like to begin by touching briefly on the order's rural limitation. [00:23:01] Speaker 00: The commission recently determined to target Lifeline's limited resources toward the areas that had the lowest rates of connectivity, the most costly communication services, and overall the greatest need. [00:23:14] Speaker 00: and those are rural areas. [00:23:16] Speaker 00: As the order explains, only 37% of residents of rural areas have access to high-speed service as compared to 98% of residents in urban areas. [00:23:27] Speaker 05: What effect was that going to have on overall subscriptions? [00:23:32] Speaker 00: Your Honor, with respect to the subscribership issue, what is important to remember here, and Judge Randolph, you had highlighted this, wireless resellers can continue to participate in the Lifeline program. [00:23:45] Speaker 00: They can also continue to offer service in tribal lands. [00:23:50] Speaker 05: But did the Commission take a look at what the likely effect was going to be on overall subscription? [00:23:56] Speaker 00: Well, Your Honor, in the order, we do acknowledge that currently two-thirds of the enhanced support is going toward wireless resellers. [00:24:05] Speaker 00: Implicit in that is that only one-third is going to carriers, and we recognize there are not enough carriers currently on reservations to service tribal lands. [00:24:13] Speaker 00: In paragraph 27, we say that ultimately, over time, we believe that targeting the [00:24:20] Speaker 00: funds, the enhanced support toward the only carriers that are capable of deploying, building, and maintaining infrastructure on tribal lands will long-term lead to more robust networks and ultimately will help drive subscribership. [00:24:35] Speaker 00: But in the interim, wireless resellers can continue to offer service. [00:24:40] Speaker 00: There are wireless resellers across this country, Your Honor, that service rural non-tribal lands [00:24:46] Speaker 00: who only get the $9.25 basic subsidy. [00:24:50] Speaker 05: I think you understand your opponent's argument. [00:24:52] Speaker 05: That is that the policy had been, the position had been that we're interested in affordability so that more disadvantaged folks can get subscriptions, right? [00:25:05] Speaker 05: And that the commission seems to have turned that on its head and said, no, our interest is in building out [00:25:11] Speaker 05: infrastructure. [00:25:13] Speaker 05: And in doing so, that the commission has overlooked, has neglected the primary purpose, at least as established in the 2000 order, of affordability for tribal members. [00:25:29] Speaker 00: How do you respond to that? [00:25:30] Speaker 00: Sure. [00:25:30] Speaker 00: The 2000 tribal order, which adopted the enhanced support, [00:25:34] Speaker 00: There were dual goals. [00:25:35] Speaker 00: Certainly affordability was a goal. [00:25:37] Speaker 00: But so was telecommunications deployment on tribal lands. [00:25:41] Speaker 00: The 2000 order makes repeated references to the fact that deployment on tribal lands. [00:25:46] Speaker 05: I think I'm looking at the 2000 order. [00:25:48] Speaker 05: It says, our primary goal [00:25:51] Speaker 05: is to reduce the monthly cost of telecommunication services. [00:25:56] Speaker 05: It doesn't sound like it's a dual goal. [00:25:58] Speaker 05: It sounds like the primary goal is affordability, so the tribal members who qualify would be able to have subscriptions at a lower rate. [00:26:09] Speaker 00: And later in that same order, we also say that one of the key impediments that prevents service on tribal lands is the fact that deployment is languishing on tribal lands. [00:26:21] Speaker 00: This is not a decision that we made in a vacuum. [00:26:24] Speaker 00: In footnote 67 of the order under review, we have comments from over a dozen tribes who endorsed the facilities-based requirement here. [00:26:34] Speaker 00: because they recognized that the tribal infrastructure on tribal lands was woefully inadequate. [00:26:40] Speaker 00: We also received [00:26:42] Speaker 00: comments from I thought I thought we were talking about the rural limitation and that's what you started yes your honor I am and the point of the rural limitation was to direct the funds where the needs are the greatest and those are indisputably on rural tribal lands but but is the effect of that going to be reduced number of subscribers aren't you leading the urban tribal members behind is the argument [00:27:08] Speaker 05: Your honor, we're not because for so one reason suggested that you thought maybe you were at least for a period of time. [00:27:15] Speaker 00: Well, I think we have to acknowledge that in the short term, there could be some loss in subscribership, although it's not necessarily so. [00:27:22] Speaker 00: So for a couple of reasons, one, as I mentioned, because [00:27:25] Speaker 00: The wireless resellers can offer a basic lifeline plan. [00:27:30] Speaker 00: As we mentioned in pages 52 and 53 of our brief, assist in easy wireless. [00:27:35] Speaker 00: On their websites, they currently offer basic lifeline plans. [00:27:41] Speaker 00: where they offer 750 minutes of voice, unlimited text, a certain amount of data. [00:27:46] Speaker 00: That's a pretty good phone plan. [00:27:48] Speaker 00: And they haven't presented any evidence that their tribal subscribers are using more than what is offered under a basic Lifeline plan. [00:27:55] Speaker 00: How much do they cost? [00:27:57] Speaker 00: I'm sorry? [00:27:57] Speaker 00: How much do they cost? [00:27:58] Speaker 00: They're free. [00:27:59] Speaker 00: They're free, Your Honor. [00:28:00] Speaker 00: Lifeline, I would say the vast majority, if not upwards of 90%, if not more, they receive their phones and their plans for free. [00:28:09] Speaker 04: So let me be clear. [00:28:11] Speaker 04: They're going to put Verizon and AT&T and Sprint out of business? [00:28:16] Speaker 00: Your Honor, no, Your Honor. [00:28:19] Speaker 00: Well, they're offering free service. [00:28:22] Speaker 00: Well, that's the purpose of the enhanced subsidy and the basic subsidy, to help offset costs. [00:28:27] Speaker 00: But for the consumer, the Lifeline plan has always been free. [00:28:32] Speaker 00: That's part of the problem, Your Honor, that Lifeline is an incredibly expensive program. [00:28:37] Speaker 00: In the order we talk about the need to prudently manage our fund expenditures, in paragraph 28 of the order, last year disbursements were over $1.2 billion. [00:28:48] Speaker 04: But don't you agree, won't you, that the record shows that the budget anticipated such growth? [00:29:00] Speaker 00: The budget did anticipate growth, certainly. [00:29:04] Speaker 00: However, we believe that the expenditures have skyrocketed since 2005. [00:29:11] Speaker 04: But my point is, didn't the budget anticipate that? [00:29:15] Speaker 00: To this extent, no, Your Honor, no, Your Honor. [00:29:18] Speaker 04: Let me ask you, in the record, are there any statements under oath by any of the major carriers that they intend to pick up the slack? [00:29:27] Speaker 00: Your Honor, the commission does not necessarily envision that the large carriers will be participants in the Lifeline Program. [00:29:34] Speaker 04: But can you just answer my question? [00:29:36] Speaker 00: No, Your Honor. [00:29:37] Speaker 00: There is no comments from large facilities-based carriers. [00:29:40] Speaker 00: However, there are comments from smaller facilities-based carriers, Smith Bagley being one of them, also in footnote 67 of the order, Gila River Telecom. [00:29:50] Speaker 04: But you acknowledge that they opposed the rule, the 2017 rule. [00:29:56] Speaker 00: No, Your Honor, they did not. [00:29:59] Speaker 00: That's a misstatement. [00:30:02] Speaker 04: They originally supported it, but then they came out against it because of some of the changes that were made. [00:30:10] Speaker 00: Your honor, no, that is incorrect. [00:30:12] Speaker 00: So in the February 2018 comments Smith Bagley submitted, they oppose a proposal raised in the NPRM. [00:30:21] Speaker 00: And we know that because they cite to paragraph 67 of the NPRM and not the order. [00:30:27] Speaker 00: Three weeks subsequent to that, they filed an opposition to petitions for reconsideration of the order in which they gave an unqualified across the board endorsement of the order's facilities based requirement. [00:30:39] Speaker 00: and I'll find that where? [00:30:42] Speaker 00: The excerpt of the February 2018 comments is in the Joint Appendix. [00:30:49] Speaker 00: We filed a supplemental letter on October 12th in which we attached the full set of February 2018 comments as well as the opposition that Smith Bagley filed in March. [00:30:59] Speaker 04: So I'm going to find that in the supplemental [00:31:01] Speaker 00: Yes, Your Honor, as this Court has consistently held, you review the agency's decision based upon the record that was before it at the time. [00:31:12] Speaker 00: Petitioners included in the joint appendix post-order comments, which are typically, they're not part of the record. [00:31:19] Speaker 00: We felt an obligation to the court to correct this inaccurate statement. [00:31:23] Speaker 04: Thank you. [00:31:23] Speaker 04: So just one other quick question. [00:31:27] Speaker 04: Some of the statistics you gave about tribal support in footnote 67, at least one of the tribes operates its own facilities. [00:31:38] Speaker 04: Isn't that correct? [00:31:39] Speaker 04: That is true. [00:31:41] Speaker 04: Are they among the tribes that you're relying on? [00:31:47] Speaker 00: So footnote 67 references comments from tribal carriers, like Gila River Telecom, Mescalero Apache Telecom, San Carlos Apache Telecom, as well as tribal governments as well. [00:32:01] Speaker 00: So the footnote 67 references both. [00:32:05] Speaker 04: So what I'm trying to focus on are these providers [00:32:12] Speaker 04: Well, what volume of service is provided by these providers? [00:32:22] Speaker 04: In other words, is there no need for AT&T, Sprint, et cetera, Verizon? [00:32:28] Speaker 00: Your Honor, I think that is an important point. [00:32:32] Speaker 00: So I don't know specifically with respect to the tribal carriers referenced in footnote 67. [00:32:38] Speaker 00: I do know that Smith Bagley, whose comments are referenced in footnote 56, serves 100,000 tribal customers. [00:32:46] Speaker 04: Right, but the question I asked, I didn't see that fact [00:32:51] Speaker 04: anywhere in the commission's order. [00:32:57] Speaker 00: So it's in footnote 56 of the order we talk about... No, no, no. [00:33:02] Speaker 04: That because of these other carrier sources that the tribes themselves own and operate, that will ameliorate [00:33:15] Speaker 04: any decrease in subscribership, much less affordability issues. [00:33:22] Speaker 00: Your Honor, it's not explicitly set out in the order. [00:33:25] Speaker 04: Is it implicitly in the order? [00:33:27] Speaker 00: Yes, I do believe it's implicit, because we say in paragraph 27 that ultimately funneling these funds to facilities-based cares will lead ultimately to more robust networks. [00:33:37] Speaker 04: I know, but there's nothing to back that up. [00:33:39] Speaker 04: I'm looking for the backup. [00:33:41] Speaker 04: That's why I asked you about the declarations [00:33:45] Speaker 04: and I'm exploring this tribal, because what I was left with was no indication that these tribal owners and operators were going to be able to fill the gap. [00:33:59] Speaker 04: It's not explicitly set out in the order. [00:34:00] Speaker 04: I do believe that it's... Well, what I'm trying to get at is the commission order says it expects the majors, AT&T, Verizon, to fill the gap. [00:34:12] Speaker 04: That's what the order is premised on. [00:34:14] Speaker 04: It's not this tribal community. [00:34:18] Speaker 00: So, Your Honor, we made a predictive judgment that funneling these funds. [00:34:23] Speaker 04: I understand that, Counsel, and all I'm trying to find out is what is the predictive judgment based on? [00:34:29] Speaker 04: And you don't have any statements from the majors, all right? [00:34:33] Speaker 04: And you don't reference the tribal ownership carriers. [00:34:38] Speaker 04: So what is the basis for this? [00:34:41] Speaker 00: So the basis is footnote 56 of the order, which says Smith Bagley's comments said that one carrier. [00:34:51] Speaker 00: Yes, your honor, that is that is that is one carrier that's referenced. [00:34:54] Speaker 00: But however, we this is this was a this was this facility's based requirement was endorsed not by one [00:35:03] Speaker 00: not by even a dozen, by over nearly 20 tribes and tribal carriers and tribal organizations. [00:35:10] Speaker 04: Right, and I don't want to go around in circles, but my point is, if those are the tribes that already own the facilities, of course they're going to support this. [00:35:18] Speaker 04: I'm talking about people who are unable to afford service, who live in remote areas, and who live in urban areas and can't afford this service. [00:35:33] Speaker 04: who are not being served by these tribal-owned operators. [00:35:40] Speaker 04: Do you see what I'm getting at? [00:35:45] Speaker 00: Yes, Your Honor, I do understand where you're getting at. [00:35:49] Speaker 04: I'm happy to assume that you're a lot more familiar with the record than I am. [00:35:55] Speaker 04: And that's what I'm trying to flesh out, is if I dig deeper, what am I going to find to support the commission's, what? [00:36:07] Speaker 04: judgment about what's going to happen sometime in the future, sometime in the unidentified future. [00:36:14] Speaker 00: So a couple of other points. [00:36:15] Speaker 00: So in addition to the fact that the wireless resellers can still continue to offer the basic subsidy, the other point is that even though there might not be a facilities-based wireless carrier on a tribal reservation, there could be a facilities-based [00:36:31] Speaker 00: wire line carrier, having a phone in one's home is an important way of staying connected. [00:36:38] Speaker 00: Also in footnote 70 of the order, it's not as though wireless resellers can just turn off service. [00:36:46] Speaker 00: If they are planning to relinquish their ETC designation, they have to obtain approval from the State Commission. [00:36:52] Speaker 00: The State Commission will evaluate whether those customers will be served by another carrier in the area. [00:37:00] Speaker 00: So it's not as though subscribership is simply going to plummet, but however the Commission made a predictive judgment to which we are entitled great deference that limiting the funds to the only carriers that are capable of deploying on tribal lands will ultimately lead [00:37:17] Speaker 00: to higher quality service. [00:37:19] Speaker 00: Since 2005, well over a decade, wireless resellers have been in this arena and have obtained the enhanced support. [00:37:27] Speaker 00: So we've tried this out for well over a decade and what the Commission has realized is there hasn't been any appreciable advancement in deployment on tribal lands. [00:37:36] Speaker 00: So the Commission, as we say in paragraph one, we're taking a fresh [00:37:40] Speaker 00: look at this issue. [00:37:41] Speaker 04: So you're knocking out the resellers. [00:37:44] Speaker 00: We're not knocking them out, Your Honor. [00:37:45] Speaker 04: We're not knocking them out from the enhanced subsidy. [00:37:48] Speaker 00: Yes, from the enhanced subsidy. [00:37:50] Speaker 04: And that's why they're in there. [00:37:51] Speaker 00: I'm sorry? [00:37:52] Speaker 04: That's why they're in there. [00:37:55] Speaker 00: Well, Your Honor, Lifeline was never intended to be a program that was going to offer profits. [00:38:03] Speaker 00: We say that in the original. [00:38:05] Speaker 04: It was going to offer affordable service. [00:38:07] Speaker 00: Yes, it was intended to offer affordable service. [00:38:10] Speaker 00: That is true. [00:38:11] Speaker 00: But again, under the basic program, these phones and these plans will continue to be free for the customers. [00:38:17] Speaker 00: There are wireless resellers across the country that are providing service to rural, rugged, non-tribal lands that are doing it with only the basic subsidy. [00:38:28] Speaker 00: And what we have realized in this last decade, since we have allowed resellers to come in, there has been a bloating of fund expenditures, [00:38:36] Speaker 00: combined with wastefront abuse and collectively not any appreciable advancement on tribal lands. [00:38:44] Speaker 06: Therefore... I want to take you back to the language used in the 2016 order. [00:38:52] Speaker 06: What is the Commission's interpretation of the phrase to remain open, that the issues we've been discussing here today would remain open [00:39:01] Speaker 06: in a future proceeding more comprehensively focused on advancing broadband deployment on tribal lands. [00:39:09] Speaker 00: So if we parse that sentence phrase by phrase, the issues remained open for consideration in that the docket remained open, people could continue to file comments and ex-party submissions. [00:39:21] Speaker 06: I'll parse it for you, at least one reading. [00:39:25] Speaker 06: is that when you talk about a future proceeding, you're distinguishing between the proceeding that was ongoing at the time and one that would be initiated later. [00:39:35] Speaker 06: And that's totally consistent with the APA. [00:39:39] Speaker 06: Your opponents say that the APA definition of proceeding means gathering a process for gathering information. [00:39:46] Speaker 06: That's not correct. [00:39:47] Speaker 06: The APA defines proceeding as a rulemaking proceeding, an adjudication, or a licensing proceeding. [00:39:57] Speaker 06: So when I, if I plug in that definition, a future proceeding, a future rulemaking proceeding seems the most likely. [00:40:06] Speaker 06: But that's not what happened here. [00:40:08] Speaker 06: Because you say it was a continuation of the one proceeding that was already open. [00:40:14] Speaker 00: Yes, Your Honor. [00:40:15] Speaker 00: So proceeding, our opponents have defined it as an agency process. [00:40:21] Speaker 00: In this context, it doesn't have to refer to an agency process of more information gathering. [00:40:26] Speaker 00: It can refer to the agency's decision-making process. [00:40:29] Speaker 06: No, I agree with you. [00:40:31] Speaker 06: But what it does refer to is a, forget about adjudication, forget about licensing. [00:40:36] Speaker 06: There's three kinds of proceedings under the APA. [00:40:39] Speaker 06: And the one that fits here is a rule-making proceeding. [00:40:43] Speaker 06: consideration in a future rulemaking proceeding, but that's not what happened. [00:40:49] Speaker 00: That's not what happened, Your Honor, because the 2015 NPRM provided ample notice and opportunity for comment. [00:40:57] Speaker 00: The wireless reseller petitioners here filed over 100 pages of comments, all of which are available in the Joint Appendix in which they oppose these proposals, as did and hundreds of other interested parties submitted comments in which they either supported or [00:41:12] Speaker 00: oppose the proposals. [00:41:14] Speaker 00: And if you read the petitioner's comments, they make perfectly clear they understood the parameters of the facilities-based requirement and what the impact would be on wireless resellers. [00:41:25] Speaker 00: In those comments, they say, if this order is adopted, wireless resellers are going to lose two-thirds of their support. [00:41:30] Speaker 06: I suppose they would reply that [00:41:33] Speaker 06: Yes, but you told us there was going to be another rulemaking. [00:41:37] Speaker 06: And there was evidence that was developing, as there always is, during the comment period and later while the rule was being considered by the Commission. [00:41:48] Speaker 06: And we would have sought to reopen the comment period in light of the additional evidence. [00:41:53] Speaker 06: But what you lulled us into not doing that by saying there's going to be a new rulemaking. [00:41:58] Speaker 06: What's your answer to that? [00:42:00] Speaker 00: We never said that. [00:42:01] Speaker 00: The 2016 order never said that we were going to provide another opportunity for notice and comment. [00:42:09] Speaker 00: And the 2015 NPRM provided ample notice and comment. [00:42:13] Speaker 06: Had we simply adopted the order in 2016... Well, you say it never said that we have another notice and comment period. [00:42:21] Speaker 06: But their reply would be, I suppose, that when you said future proceeding, the only thing that comes to mind is a future rulemaking. [00:42:31] Speaker 06: And if it's a future rulemaking, it necessarily entails notice and comment. [00:42:36] Speaker 06: What's your answer to that? [00:42:37] Speaker 00: My answer is that perhaps that was inartfully drafted. [00:42:41] Speaker 00: Maybe we shouldn't have said the word proceeding, but we never explicitly said we were going to open up for notice and comment. [00:42:46] Speaker 00: Petitioners had ample opportunity to file comments before and in response to the 2015 NPRM and did, in fact, file voluminous comments. [00:42:57] Speaker 00: And at the least, you'd say it's harmless error, because they already had the opportunity to provide [00:43:03] Speaker 00: that we already provided notice and comment. [00:43:06] Speaker 00: The APA requires notice and comment, not multiple rounds of notice and comment. [00:43:12] Speaker 04: Anything further? [00:43:14] Speaker 00: No, Your Honor. [00:43:16] Speaker 00: We ask that the commission's order be affirmed. [00:43:17] Speaker 00: Thank you. [00:43:18] Speaker 04: Thank you. [00:43:22] Speaker 04: All right. [00:43:22] Speaker 04: Council for National Lifeline. [00:43:29] Speaker 03: Thank you, Your Honors. [00:43:30] Speaker 03: Just a few quick points in response to counsel's arguments. [00:43:33] Speaker 03: First, with respect to the tribal rural limitation. [00:43:36] Speaker 03: The commission asserts that it's more costly to serve rural areas, and it provides a bunch of data about fixed service on rural lands. [00:43:45] Speaker 03: The Tribal Lifeline Program is over 90% a mobile wireless program. [00:43:49] Speaker 03: It's a mobile wireless program using networks that are in place. [00:43:54] Speaker 03: This is a program, and for these consumers affected in the crosshairs today, they have the network. [00:44:00] Speaker 03: It's not about networks that aren't there. [00:44:01] Speaker 03: The networks are there. [00:44:02] Speaker 03: They're getting mobile wireless broadband, and the Commission's statistics about fixed broadband in tribal lands is not particularly relevant. [00:44:09] Speaker 03: What would be relevant is statistics about mobile wireless service on tribal lands, and we are providing that service today. [00:44:16] Speaker 06: Facility owners maintain the towers and [00:44:19] Speaker 06: all the other requirements to allow phones to be wireless. [00:44:29] Speaker 03: Excuse me, sir? [00:44:29] Speaker 06: The resellers don't maintain the infrastructure. [00:44:35] Speaker 03: Your Honor, no, we don't maintain the infrastructure we sell, but we pay Verizon, we pay Sprint, we pay T-Mobile, and they maintain the infrastructure. [00:44:43] Speaker 03: We have wholesale agreements with them. [00:44:45] Speaker 03: The revenue that we get and we give to them goes to building out and maintaining networks in tribal lands. [00:44:53] Speaker 03: Putting revenue and putting customers on those networks in thinly populated tribal lands or even in those tribal lands or in urban areas [00:45:02] Speaker 03: they augment the case to build facilities, and the record reflects that. [00:45:06] Speaker 03: Second point, with regards to the consumers could get basic lifeline plans, isn't that enough? [00:45:11] Speaker 03: That's exactly what the commission said wasn't enough in 2000. [00:45:15] Speaker 03: That's the reason why we have the tribal lifeline program. [00:45:17] Speaker 03: The commission had a lifeline program before it, and it said because of poverty on tribal lands and the adoption problem and affordability problem in tribal lands, it needed to do more. [00:45:26] Speaker 03: The basic lifeline subsidy was not enough. [00:45:28] Speaker 03: Moreover, the record reflects, and particularly in the petition for stay and materials filed there, that many resellers will not stay to provide 925 service. [00:45:37] Speaker 03: They cannot stay in business. [00:45:38] Speaker 06: Why is it more expensive for the resellers to provide service [00:45:45] Speaker 06: on tribal lands as opposed to on other rural areas that are non-tribal lands? [00:45:52] Speaker 03: Your Honor, it's typically not more expensive for resellers to provide service in tribal lands. [00:45:57] Speaker 03: It's typically the same. [00:45:58] Speaker 03: The network is the same. [00:46:00] Speaker 03: What happens with the tribal subsidy is that tribal residents get a lot more service. [00:46:05] Speaker 03: They get much more robust service packages that they use. [00:46:08] Speaker 03: These service packages commonly include [00:46:10] Speaker 03: allocations of voice, text, and data, broadband data. [00:46:16] Speaker 03: And so these consumers are getting fairly robust packages as opposed to the consumers in the basic Lifeline program, which get fairly minimalist packages. [00:46:25] Speaker 03: A final point on notice. [00:46:28] Speaker 03: The tribal facilities requirement that was adopted and the rural tribal limitation that was adopted could not have been reasonably anticipated prior to release of the draft order. [00:46:37] Speaker 03: The tribal facilities requirement is something that cannot be squared with over 10 years of forbearance from section 10. [00:46:43] Speaker 03: And the commission's definition of facilities, which if you look at paragraph 30 in the order, they still intend to use for other lifeline purposes. [00:46:51] Speaker 03: The commission has an obligation to explain how all those things fit together. [00:46:54] Speaker 03: not to mention Section 214, which allows resale. [00:46:58] Speaker 03: The Commission's last-mile requirement effectively outrules any resale. [00:47:02] Speaker 04: Could I just ask you on the definitional point? [00:47:06] Speaker 04: In the 2015 second further notice of proposed rulemaking, the Commission does discuss at some detail [00:47:20] Speaker 04: that it's considering a different type of definition and it refers to, I think it's an agricultural program and some other programs that are very narrowly focused and based and ultimately what the commission adopts is something along the same lines. [00:47:42] Speaker 04: Is that not correct? [00:47:43] Speaker 03: That's the rural tribal limitation, Your Honor. [00:47:48] Speaker 03: And yes, the commission adopts the definition from its e-rate program, something it didn't propose and nobody actually commented on. [00:47:56] Speaker 03: And while the commission did propose population density-based restrictions, what I think goes off the rails here is that the definition it picked includes things like urban clusters. [00:48:07] Speaker 03: And urban clusters include places like McCord, Oklahoma. [00:48:10] Speaker 03: a town of 1,500 people. [00:48:13] Speaker 03: And when the commission released that draft order in November, nobody in McCord, Oklahoma, could know that they were part of an urban cluster. [00:48:20] Speaker 03: The commission knew, but it kept that data to itself. [00:48:22] Speaker 03: So at that time, nobody could comment that small towns were swept into this definition, which the commission says is about 25,000 people. [00:48:30] Speaker 03: And I think the commission has an obligation to put that definition out and let people understand how it impacts them. [00:48:38] Speaker 03: The commission released a tool allowing people to under summer over six months after the order. [00:48:44] Speaker 03: And thankfully this court stayed that these rules so they did not go into effect. [00:48:49] Speaker 03: Thank you. [00:49:00] Speaker 04: Council, some of the tribes. [00:49:08] Speaker 01: Your Honor, I'd just like to pick up on a few points made in the FCC's presentation. [00:49:12] Speaker 01: One is back to this point of filling in the gap, of picking up the slack. [00:49:20] Speaker 01: Verizon withdrew from Crow Creek several years ago. [00:49:23] Speaker 01: They relinquished their license to provide Lifeline. [00:49:27] Speaker 01: They're not coming back. [00:49:29] Speaker 01: We're looking for other options, and our only option is resale. [00:49:33] Speaker 01: Now, the SEC also mentioned the smaller carriers. [00:49:35] Speaker 01: Well, what about that? [00:49:37] Speaker 01: Well, none of them said in the record. [00:49:40] Speaker 01: They talked about incremental expansion. [00:49:43] Speaker 01: Maybe I'll build another tower in my existing spectrum license area and cover some more tribes. [00:49:49] Speaker 01: That's all well and good, but it's not much help to tribes like Crow Creek in the Dakotas or Leech Lake in Minnesota or the Mississippi Band of Choctaw. [00:49:59] Speaker 01: Neither Smith Bagley nor Gila that serves a tribe, they didn't say they were going to expand from the few states they serve or the single tribe they serve [00:50:08] Speaker 01: and go out, make a hundred, several hundred million, maybe billion dollar business decision to buy Spectrum, an entirely new state, to build a ground game to get the service out there, to build towers out there and connect the towers without an existing network. [00:50:23] Speaker 01: And there's a reason they didn't do it. [00:50:26] Speaker 01: That's an enormous business decision and it isn't driven by the chance to get a little more of that tribal lifeline pie. [00:50:36] Speaker 01: I also want to briefly mention the dual goals from the 2000 order. [00:50:41] Speaker 01: As Judge Griffith mentioned, I thought the order was very clear about what the primary goal was, but it was also clear about what the mechanism for investment was. [00:50:51] Speaker 01: And that was investment through affordability. [00:50:54] Speaker 01: You make service more affordable in concentrated, in areas with concentrated poverty, and folks can afford your service. [00:51:00] Speaker 01: And that gives you a reason to serve them that you wouldn't have if there wasn't an addressing of affordability. [00:51:07] Speaker 01: What the commission's chosen here, if we even buy the investment argument, is investment at the expense of affordability. [00:51:14] Speaker 01: And that is a fundamental repurposing of the Lifeline program that has not been explained or defended in the order. [00:51:25] Speaker 01: I also wanted to briefly mention the 2016 lifeline orders discussion about future proceeding. [00:51:32] Speaker 01: The respondents say perhaps it was inartfully drafted. [00:51:35] Speaker 01: It seemed to me to be very carefully drafted. [00:51:37] Speaker 01: In fact, there's a footnote dropped in that paragraph that says we're going to consider high-cost policies too. [00:51:45] Speaker 01: And if you're going to consider an entirely separate universal service program while you consider these other rules, you've got to expand the scope of the proceeding, and the only way to do that is with a new notice of proposed rulemaking that seeks comment. [00:52:02] Speaker 04: Thank you. [00:52:03] Speaker 04: We will take the case under advisement.