Federal Communications Commission DA 10-2424 Before the Federal Communications Commission Washington, DC 20554 In the Matter of ) ) Requests for Waiver and Review of Decisions ) of the Universal Service Administrator by ) ) Al-Ishan Academy ) File Nos. SLD-535827, et al. South Ozone Park, New York, et al. ) ) Schools and Libraries Universal Service ) CC Docket No. 02-6 Support Mechanism ) ORDER Adopted: December 29, 2010 Released: December 29, 2010 By the Deputy Chief, Telecommunications Access Policy Division, Wireline Competition Bureau: 1. In this order, we grant 50 appeals from petitioners seeking to reverse the decisions of the Universal Service Administrative Company (USAC), which found that technology plan rules for the E- rate program1 had been violated for various funding years.2 Consistent with the Commission’s Brownsville Order,3 and based on our review of the record, we find that these petitioners have demonstrated that special circumstances exist to justify a waiver of the E-rate program’s technology plan rules.4 We grant these appeals and remand the underlying applications to USAC for further action consistent with this order.5 2. The Commission requires an applicant applying for services other than basic telecommunications services to first develop a technology plan.6 The technology plan must include five 1 The Commission’s E-rate program is more formally known as the schools and libraries universal service support program. 2 The requests for waiver and review are listed in the Appendix. Section 54.719(c) of the Commission’s rules provides that any person aggrieved by an action taken by a division of USAC may seek review from the Commission. 47 C.F.R. § 54.719(c). Although some petitioners did not explicitly request a waiver, we treat their requests for review as requests for waiver because, in each case, their funding requests were denied because USAC found that technology plan rules had been violated. Several of the petitioners in the appendix are appealing the commitment adjustment letters they received from USAC. When USAC determines that funds were committed or disbursed in error, it will adjust those funding commitments or recover such disbursements to ensure that no funds are used in violation of program rules. See USAC website, Commitment Adjustment (COMAD), http://www.universalservice.org/sl/about/commitments-adjustments.aspx (last visited Dec. 7, 2010). 3 See Request for Review of the Decision of the Universal Service Administrator by Brownsville Independent School District, et al., File Nos. SLD-482620, et al., CC Docket No. 02-6, Order, 22 FCC Rcd 6045 (2007) (Brownsville Order). 4 See 47 C.F.R. §§ 54.504(b)(2)(iii)-(iv); 54.504(c)(1)(iv)-(v); and 54.508. 5 See appendix. 6 See 47 C.F.R. §§ 54.504(b)(2)(iii)-(iv); 54.504(c)(1)(iv)-(v); and 54.508; Universal Service First Report and Order, 12 FCC Rcd at 9077-78, para. 573. Technology plans have not been required for “basic (continued….) Federal Communications Commission DA 10-2424 2 elements, including a strategy for using telecommunications and information technology to improve education or library services.7 To ensure that the technology plan is based on the reasonable needs and resources of the applicant and is consistent with the goals of the E-rate program, the Commission requires technology plans to be approved by either the applicant’s state or another USAC-certified technology plan approver.8 An applicant whose technology plan has not been approved when it files the FCC Form 470 must certify that it understands that its technology plan must be approved prior to the commencement of service.9 3. In the Brownsville Order, the Commission waived the technology plan rules for petitioners that, among other things, (1) did not develop a technology plan because they sought discounts only for telecommunications or because they believed that a technology plan was not required for what they believed to be basic voice service; (2) failed to show, in response to inquiries by USAC, that they had an approved technology plan in place for the relevant funding year, or that the plan was in the process of being approved; or (3) based their funding applications on approved technology plans from prior years while they updated those plans.10 4. We apply the standards of the Brownsville Order and waive the technology plan rules for 50 petitioners.11 First, we waive the technology plan rules and grant the appeals for 44 petitioners that made the same errors as addressed in the Brownsville Order.12 In addition, we also grant waivers to four (Continued from previous page) telecommunications” services (e.g., local telephone service, long distance telephone service, and interconnected voice over Internet protocol). See Eligible Services List, Schools and Libraries Support Mechanism for Funding Year 2010 (dated Dec. 2, 2009) at 4, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-105A2.pdf (last visited Dec. 14, 2010). In the Commission’s Sixth Report and Order, however, the Commission amended sections 54.504 and 54.508 of its rules to eliminate the E-rate technology plan requirements for all priority one funding requests. See Schools and Libraries Universal Service Support Mechanism, A National Broadband Plan for Our Future, CC Docket No. 02-6, GN Docket No. 09-51, Sixth Report and Order, FCC 10-175 (rel. September 28, 2010) (Sixth Report and Order) at paras. 58-65. The amended technology plan rules will be codified at 47 C.F.R. §§ 54.503(c)(2)(iii), 54.504(a)(1)(iv)-(v), and 54.508. 7 47 C.F.R. § 54.508(a). 8 47 C.F.R. § 54.508(d); Universal Service First Report and Order, 12 FCC at 9077-78, para. 574; see also USAC website, Schools and Libraries, Technology Plans, http://www.universalservice.org/sl/applicants/step02/ (last visited Dec. 28, 2010). 9 47 C.F.R. §§ 54.504(b)(2)(iii)-(iv), 54.508(c); see also Schools and Libraries Universal Service Support Mechanism, CC Docket No. 02-6, Fifth Report and Order and Order, 19 FCC Rcd 15808, 15830, para. 56 (2004). An applicant whose technology plan has not been approved when it files the FCC Form 471 must, once again, certify that it understands its technology plans must be approved prior to the commencement of service. 47 C.F.R. § 54.504(c)(1)(iv)-(v). 10 Brownsville Order, 22 FCC Rcd at 6047-6049. 11 The Commission may waive any provision of its rules on its own motion for good cause shown. 47 C.F.R. § 1.3. A rule may be waived where the particular facts make strict compliance inconsistent with the public interest. Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990) (Northeast Cellular). In addition, the Commission may take into account considerations of hardship, equity, or more effective implementation of overall policy on an individual basis. WAIT Radio v. FCC, 418 F.2d 1153, 1157, (D.C. Cir. 1969), affirmed by WAIT Radio v. FCC, 459 F.2d 1203 (D.C. Cir. 1972). In sum, waiver is appropriate if special circumstances warrant a deviation from the general rule, and such deviation would better serve the public interest than strict adherence to the general rule. Northeast Cellular, 897 F.2d at 1166. 12 See Request for Review of Baldwin County Library Cooperative, Inc; Request for Review of Cleveland Heights – University Heights Public Library; Request for Review of Al-Ishan Academy; Request for Review of Broken Bow Public Schools; Request for Review of Dickson County School District at 1-2 Request for Review of Henderson (continued….) Federal Communications Commission DA 10-2424 3 petitioners that did not create technology plans in accordance with E-rate program rules yet in good faith planned for the implementation of new technology in their schools in accordance with state, local, or other internal requirements.13 We also grant waivers to two other applicants that were denied funding because it was determined that their technology plans did not include a budget demonstrating other funding sufficient to acquire other services necessary to use the E-rate services they were requesting.14 In remanding these two applications, however, we instruct USAC to verify that these applicants did indeed have the funds to acquire the services that would be necessary to use the requested E-rate services. As the Commission determined in the Brownsville Order, we find that these appellants, even if not technically complying with technology plan rules, have satisfied the policy behind the requirements. We further find that requiring technical compliance with these specific technology plan rules does not further the purposes of section 254(h) or serve the public interest in these instances.15 5. Therefore, we find that good cause exists to grant the 50 petitioners’ requests for review. We waive the E-rate technology plan requirements for these petitioners and remand the applications listed in the appendix to USAC for further action consistent with this order. 6. ACCORDINGLY, IT IS ORDERED, pursuant to the authority contained in sections 1-4 and 254 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154 and 254, and sections 0.91, 0.291, 1.3 and 54.722(a) of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, 1.3 and 54.722(a), that the requests for review or requests for waiver filed by the petitioners listed in appendix ARE GRANTED and their applications ARE REMANDED to USAC for further action consistent with this order no later than 90 calendar days from the release date of this order. 7. IT IS FURTHER ORDERED, pursuant to the authority contained in sections 1-4 and 254 (Continued from previous page) County Public School District; Request for Review of Lewis-Palmer School District 38; Request for Review of Casa Grande Elementary Schools; Request for Review of Lake Erie Educational Computer Association; Request for Review of St. Barnabas High School; Request for Review of St. Raymond; Request for Review of Municipal Telephone Exchange; Request for Review of Oklahoma School for the Deaf; Request for Review of Greater Homewood Community Corporation, Inc.; Request for Review of South Baltimore Learning Center; Request for Review of TRG Networking, Inc.; Request for Review of Gobles Public Schools; Request for Review of Maricopa County Regional School District; Request for Review of Pharr Memorial Library; Request for Review of American Samoa SEA Department of Education; Request for Review of West Contra Costa Unified School; Request for Review of Trotwood Preparatory and Fitness Academy; Request for Review of Selah School District No. 119; Request for Review of Information Referral Resource Assistance, Inc. (Integrity Communications, Inc.); Request for Review of Nuestros Valores Charter School; Request for Review of Cardinal Hayes High School; Request for Review of Wissahickon Charter School; Request for Review of Westside Holistic Family Services; Request for Review of Bridgeton Public Schools; Request for Review of Wagoner Public Schools; Request for Review of Westside Montessori Center; Request for Review of Columbus Public School; Request for Review of New Direction Academy; Request for Review of Magen David Yeshiva; Request for Review of Good Shepherd School; Request for Review of Kipp Tech Valley Charter School; Request for Review of Yeshiva Torah Vodaath & Mesivta School; Request for Review of Omega Schools; Request for Review of Providence School District; Request for Review of Coleman Independent School District 35; Request for Review of Thomasville City Public School; Request for Review of New Covenant Christian School; Request for Review of Southern California Tribal Chairmen’s Libraries Association; and Request for Review of Native Vocational District. 13 See Request for Review of City of Pembroke Pines Charter School; Request for Review of Arts and Technology Academy; Request for Review of Boys Village Youth and Family Services; Request for Review of Saint Andrew’s – Sewanee School. 14 See Request for Review of Glacier County Library; Request for Review of Lotus Academy. See 54.508(a)(4). This requirement was eliminated by the Sixth Report and Order. Sixth Report and Order, at para. 68. 15 Brownsville Order, 22 FCC Rcd at 6049. Federal Communications Commission DA 10-2424 4 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154 and 254, and sections 0.91, 0.291, 1.3 and 54.722(a) of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, 1.3 and 54.722(a), that former sections that sections 54.504(b)(2)(iii)-(iv), (c)(1)(iv)-(v) and 54.508(a)(4) and (c)-(d) of the Commission’s rules, 47 C.F.R. §§ 54.504(b)(2)(iii)-(iv), (c)(1)(iv)-(v) and 54.508(a)(4) and (c)-(d), ARE WAIVED to the extent provided herein. 8. IT IS FURTHER ORDERED, pursuant to the authority contained in sections 1-4 and 254 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154 and 254, and pursuant to authority in sections 0.91, 0.291, and 54.722(a) of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, 54.722(a), that USAC SHALL DISCONTINUE its recovery action against the applicants listed in the appendix that are appealing commitment adjustment letters received from USAC. FEDERAL COMMUNICATIONS COMMISSION Gina Spade Deputy Chief Telecommunications Access Policy Division Wireline Competition Bureau Federal Communications Commission DA 10-2424 5 APPENDIX Applicant Application Number Funding Year Date Request for Review Filed Al-Ishan Academy South Ozone Park, New York 535827 2006 April 19, 2007 Arts and Technology Academy Wilmington, Delaware 429320 2005 September 16, 2008 American Samoa SEA Department of Education Pago Pago, American Samoa 306344 2002 July 27, 2007 Baldwin County Library Cooperative, Inc. (Orange Beach Public Library) Robertsdale, Alabama 528564 2006 March 7, 2007 Boys Village Youth and Family Services Milford, Connecticut 257286 2001 January 4, 2007 Bridgeton Public Schools Bridgeton, New Jersey 580993, 581867, 582031, 581141, 581766, 578428 2007 February 5, 2008 Broken Bow Public Schools Broken Bow, Oklahoma 536258 535775 2006 March 23, 2007 Cardinal Hayes High School (filed by E- rate Central) Bronx, New York 483059 2005 June 19, 2009 Casa Grande Elementary Schools Casa Grande, Arizona 512170, 514172 2006 September 19, 2006 Cleveland Heights – University Heights Public Library Cleveland, Ohio 554693 2007 June 24, 2008 Coleman Independent Public School District 35 Coleman, Oklahoma 483448 2005 December 5, 2008 Columbus Public Schools Columbus, Ohio 376510, 365588 2003 January 25, 2008 Dickson County School District Dickson, Tennessee 527252 2006 March 29, 2007 Glacier County Library Cut Bank, Montana 508699 2006 January 30, 2007 Gobles Public Schools Gobles, Michigan 428693 2004 May 20, 2009 Good Shepherd School Baltimore, Maryland 608408 2008 December 28, 2009 Greater Homewood Community Corporation, Inc. Baltimore, Maryland 193903 2000 March 16, 2005 Henderson County Public School District Hendersonville, North Carolina 512090 2006 March 14, 2007 Federal Communications Commission DA 10-2424 6 Information Referral Resource Assistance, Inc. (Integrity Communications, Inc.) McAllen, Texas 249067 2001 December 26, 2007 Kipp Tech Valley Charter School Albany, New York 458735, 457066 2005 September 15, 2009 Lake Erie Educational Computer Association Elyria, Ohio 444012 2005 April 16, 2007 Lewis Palmer School District 38 Monument, Colorado 507363 2006 March 9, 2007 Lotus Academy (Youth Empowerment Services) Philadelphia, Pennsylvania 538116 2006 March 12, 2007 Magen David Yeshiva Brooklyn, NY 431454 2004 January, 12, 2010 Maricopa County Regional School District (filed by FundEd, L.L.C.) Phoenix, Arizona 530784 2006 June 2, 2009 Municipal Telephone Exchange Baltimore, Maryland 323349 2002 November 7, 2008 Native Vocational District Kayenta, Arizona 570160 2007 November 10, 2010 New Covenant Christian School Bronx, New York 523146, 523340 2006 September 10, 2009 New Direction Academy Chicago, Illinois 396775 2004 January 8, 2010 Nuestros Valores Charter School Albuquerque, New Mexico 383807 2003 January 22, 2007 Oklahoma School for the Deaf Sulpher, Oklahoma 410590 2004 March 14, 2009 Omega Schools Phoenix, Arizona 477884 2005 October 3, 2006 City of Pembroke Pines Charter School Pembroke Pines, Florida 449104 2005 May 8, 2007 Pharr Memorial Library Pharr, Texas 485708 2005 October 1, 2008 Providence School District Providence, Rhode Island 492539, 518847, 522263 2006 August 7, 2009 Saint Andrew’s – Sewanee School Sewanee, Tennessee 444413 2005 October 23, 2007 Selah School District No. 119 Selah, Washington 507409 2006 March 19, 2007 South Baltimore Learning Center Baltimore, Maryland 125549192919 245858 314139 1999 2000 2001 2002 February 17, 2005 Federal Communications Commission DA 10-2424 7 Southern California Tribal Chairmen’s Libraries Association Valley Center, California 476681 2005 September 20, 2010 St. Barnabas High School Bronx, New York 562892 2007 August 26, 2008 St. Raymond School Bronx, New York 514640 2006 August 5, 2007 TRG Networking, Inc. (TRG) (service provider for Greater Homewood and South Baltimore) Towson, Maryland 193903 and 125549 192919 245858 314139 See above Thomasville City Public School Thomasville, Georgia 469401 2005 November 16, 2009 Trotwood Preparatory and Fitness Academy Bexley, Ohio 419208, 466681 466699 2004 2005 2005 December 26, 2006 Wagoner Public Schools Wagoner, Oklahoma 504422 2006 May 14, 2007 West Contra Costa Unified School Richmond, California 306939 2002 July 26, 2007 Westside Montessori Center Toledo, Ohio 500106 2006 May 11, 2007 Westside Holistic Family Services Chicago, Illinois 396979 2004 June 3, 2009 Wissahickon Charter School Philadelphia, Pennsylvania 424620 2004 March 27, 2009 Yeshiva Torah Vodaath & Mesivta School Brooklyn, New York 358553 2003 October 27, 2009