Federal Communications Commission DA 11-1223 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 ) ) Beaver Area Memorial Library ) File Nos. SLD-750009, et al. Beaver, PA, et al. ) ) Schools and Libraries Universal Service ) CC Docket No. 02-6 Support Mechanism ) ORDER Adopted: July 27, 2011 Released: July 27, 2011 By the Deputy Chief, Telecommunications Access Policy Division, Wireline Competition Bureau: 1. In this order, we address 39 requests from petitioners seeking waivers of the FCC Form 471 application filing window deadline for funding years 2009-2011 under the E-rate program (formally known as the schools and libraries universal service support program).1 Consistent with the Commission’s Academy of Math and Science Order,2 and based on our review of the record, we find that 21 petitioners have demonstrated that special circumstances exist to justify a waiver of the E-rate program’s FCC Form 471 application filing window deadline. We grant those requests for waiver and remand the underlying applications to the Universal Service Administrative Company (USAC) for further action consistent with this order.3 We dismiss four other requests for waiver as moot.4 We deny, however, the remaining 14 requests for waiver because we find that the petitioners failed to present special circumstances to justify a waiver of the Commission’s rules.5 1 The requests for waiver and review are listed in appendices A, B, C, and D. 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 of the FCC Form 471 application filing window deadline, we treat their requests for review as requests for waiver because, in each case, USAC denied their funding requests because their FCC Form 471 applications were submitted after the relevant filing window deadline. 2 See Request for Review of the Decision of the Universal Service Administrator by Academy of Math and Science, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-487009, et al., CC Docket No. 02- 6, Order, 25 FCC Rcd 9256 (2010) (Academy of Math and Science Order); see also Request for Waivers and Review of the Decisions of the Universal Service Administrator by Argos Public Library, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-737946, et al., CC Docket No. 02-6, Order, 25 FCC Rcd 16109 (Wireline Comp. Bur. 2010); Requests for Waivers and Review of the Decisions of the Universal Service Administrator by Al-Noor School, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-768866, et al., CC Docket No. 02-6, Order, 26 FCC Rcd 5792 (Wireline Comp. Bur. 2011) (Al-Noor Order). 3 See appendices A and B; 47 C.F.R. § 54.507(c). 4 See appendix C. 5 See appendix D; 47 C.F.R. § 1.3. Federal Communications Commission DA 11-1223 2 2. Section 54.407(c) of the Commission’s rules maintains that E-rate funds shall be available on a first-come-first-served basis, but requires USAC to implement an initial funding window that treats all applicants filing within that window as if their applications were simultaneously received.6 In the 2010 Academy of Math and Science Order, the Commission granted waivers of the FCC Form 471 application filing window deadline because the applicants filed their FCC Form 471 applications within 14 days of the FCC Form 471 application filing window deadline or presented other special circumstances justifying a waiver.7 Applying the standards of the Academy of Math and Science Order, we grant 21 requests seeking waivers of the FCC Form 471 application filing window deadline for funding years 2009-2011.8 Specifically, 16 petitioners filed their FCC Form 471 applications within 14 days after the filing window deadline closed.9 Additionally, we find that one petitioner timely filed an FCC Form 471 application, although it was subsequently withdrawn by the petitioner’s former consultant without the petitioner’s knowledge or its consent.10 We also grant three requests by petitioners that timely filed FCC Form 471 applications but neglected to file their FCC Form 471 application certifications on time.11 In addition, we grant one request by a petitioner because USAC withdrew its FCC Form 470 without notifying the petitioner, thus preventing the petitioner from filing its FCC Form 471 application within the application filing window.12 At this time, we find no evidence of waste, fraud, or abuse. Therefore, we find that good cause exists to grant 21 petitioners’ requests for waiver and remand the 6 See 47 C.F.R. § 54.507(c). 7 See Academy of Math and Science Order, 25 FCC Rcd 9256. 8 See appendices A and B. The Commission may waive any provision of its rules on its own motion and 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). 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; accord NetworkIP, LLC v. FCC, 548 F.3d 116, 127 (D.C. Cir. 2008). 9 See appendix A; Academy of Math and Science Order, 25 FCC Rcd at 9259-60, para. 8. 10 Ben Ross Public School Academy’s (Ben Ross) funding request was submitted by a consultant as part of a consortium. See Letter from Valerie A. Nelson, Ben Ross Public School Academy, to Marlene Dortch, Secretary, Federal Communications Commission, CC Docket No. 02-6 (filed Jan. 19, 2011). When Ben Ross subsequently terminated its relationship with the consultant, the consultant cancelled Ben Ross’s funding request without informing Ben Ross. Id. 11 Beaver Area Memorial Library, Friendship Public Charter Schools, and Taunton School District. Taunton School District filed an FCC Form 471 application (application number 690824), but failed to include its certification. When the school district later provided its certification, it submitted it along with a copy of its initial FCC Form 471 application (which USAC labeled as application number 703003). See Letter from Ragen D. Tiliakos, Taunton School District, to Marlene Dortch, Secretary, Federal Communications Commission, CC Docket No. 02-6 (filed June 28, 2010). See Academy of Math and Science Order, 25 FCC Rcd at 9259-60, para. 8. 12 See Al-Noor Order, 26 FCC Rcd at 5792, n. 6. Contoocook Valley School District (Contoocook) submitted its FCC Form 470 for funding year 2011 on January 7, 2011. USAC subsequently withdrew Contoocook’s initial FCC Form 470 without notifying Contoocook, after Contoocook informed USAC that it had failed to check off two of the required certifications. See Letter from Kenneth Campbell, Contoocook Valley School District, to Marlene Dortch, Secretary, Federal Communications Commission, CC Docket No. 02-6 (filed May 26, 2011). Thus, Contoocook was prevented from resubmitting a corrected FCC Form 470 in time to allow it to observe the 28-day waiting requirement and file its FCC Form 471 application within the application filing window. Id. Without an FCC Form 470 number, Contoocook was unable to file its FCC Form 471 application within the application filing window. Id. Contoocook subsequently submitted its FCC Form 471 application on May 17, 2011. Id. Federal Communications Commission DA 11-1223 3 underlying applications listed in appendices A and B to USAC for further action consistent with this order.13 In remanding these applications to USAC, we make no finding as to the ultimate eligibility of the services or the petitioners’ applications. We also dismiss as moot four requests for waivers by applicants whose FCC Form 471 applications were all filed within the application filing window deadline.14 We deny the remaining 14 requests seeking waivers of the FCC Form 471 application filing window deadline for funding years 2010-2011 because we find that the petitioners failed to present special circumstances justifying a waiver of section 54.507(c) of the Commission’s rules.15 3. 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), the requests for review or requests for waiver filed by the petitioners listed in appendices A and B ARE GRANTED and their underlying applications ARE REMANDED to USAC for further consideration in accordance with the terms of this order. 4. 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 sections 0.91, 0.291, and 54.722(a) of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, and 54.722(a), that the requests for review or requests for waiver filed by the petitioners listed in appendix C ARE DISMISSED. 5. 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 sections 0.91, 0.291, and 54.722(a) of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, and 54.722(a), that the requests for review or requests for waiver filed by the petitioners listed in appendix D ARE DENIED. 6. 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 sections 0.91, 13 See appendices A and B. In performing a complete review and analysis of the underlying applications, USAC shall either grant the underlying applications before it, or, if denying an application, provide the applicant with all grounds for denial. 14 See appendix C. The application filing window deadline for funding year 2011 was March 24, 2011, and for funding year 2010 it was February 19, 2010. See USAC website, Schools and Libraries, Schools and Libraries Deadlines, available at http://www.usac.org/sl/tools/deadlines/default.aspx (last visited July 26, 2011). The USAC website now shows that these applications were all filed within the relevant application filing window deadline. Applications may be viewed at http://www.slforms.universalservice.org/Form471Expert/DisplayExt471_StartSearch.aspx (last visited July 26, 2011). 15 See appendix D; 47 C.F.R. § 54.507(c). With the exception of Bethlehem Area Public Library, all the petitioners in appendix D had circumstances that would have failed to justify a waiver of our rules and would have been classified as denials in the Academy of Math and Science Order. We deny Bethlehem Area Public Library’s appeal because it did not file its FCC Form 471 application within 14 days of the filing deadline. Although the 2010 Academy of Math and Science Order granted waivers in some such cases, that was only because, in those funding years, USAC did not allow applicants to electronically file their FCC Form 471 application after the deadline. Under those conditions, the Commission granted waivers where the petitioner had filed its waiver request within 14 days of the filing deadline. The Commission noted, however, that, in the future, applicants would be able to file an online version of the FCC Form 471 application after the filing window deadline passed, which first became possible in funding year 2011. Thus, applicants are now required to file an FCC Form 471 application within 14 days of the application filing window deadline in order to qualify for the 14-day exception to the deadline. See Academy of Math and Science Order, 25 FCC Rcd at 9259, n. 26. Because Bethlehem Area Public Library did not file its FCC Form 471 application within 14 days of the close of the funding window for funding year 2011, it does not fit this exception. Federal Communications Commission DA 11-1223 4 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 section 54.507(c) of the Commission’s rules, 47 C.F.R. § 54.507(c), IS WAIVED for the petitioners listed in appendices A and B to the limited extent provided herein. FEDERAL COMMUNICATIONS COMMISSION Gina Spade Deputy Chief Telecommunications Access Policy Division Wireline Competition Bureau Federal Communications Commission DA 11-1223 5 APPENDIX A Requests Granted (FCC Form 471 Applications Filed Within 14 Days of the Close of the Filing Window) Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Calvert County Public Schools Prince Frederick, MD 821710 2011 June 28, 2011 Capitol West Academy Milwaukee, MI 769423 2010 Apr. 25, 2011 Castroville Public Library Castroville, TX 822040 2011 Apr. 7, 2011 Community Consolidated School District 59 Arlington Heights, IL 821497 2011 Mar. 31, 2011 Highland Community Library Johnstown, PA 821316 2011 Mar. 25, 2011 Houston Public Library HALAN/IT Department Houston, TX 821557 2011 Apr. 8, 2011 Manatee Community Action Agency, Inc. Bradenton, FL 805089 2011 Apr. 4, 2011 Marquette Academy Ottawa, IL 819081 2011 Apr. 7, 2011 Merced County Library Merced, CA 812863 2011 Apr. 4, 2011 Montgomery County Board of Education Mount Sterling, KY 779876, 773986 2011 Apr. 20, 2011 New Mexico School for the Deaf Santa Fe, NM 822109, 822110 2011 June 1, 2011 Park Rapid Area Schools Park Rapids, MN 821964, 821967 821974, 821999 822001, 822002 2011 May 2, 2011 Reserve Independent Schools Reserve, NM 813000, 813043 2011 Feb. 28, 2011 St. Felix Elementary School Wabasha, MN 821452 2011 Apr. 26, 2011 St. Philip Neri School Omaha, NE 821764 2011 Apr. 11, 2011 Woodford County Special Education Assoc. Metamora, IL 773920 2011 Apr. 4, 2011 Federal Communications Commission DA 11-1223 6 APPENDIX B Other Requests Granted Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Beaver Area Memorial Library Beaver, PA 750009 2010 May 24, 2011 Ben Ross Public School Academy Warren, MI 790842 2010 Apr. 19, 2011 Contoocook Valley School District Peterborough, NH 822551 2011 May 26, 2011 Friendship Public Charter Schools Washington, DC 774609 2011 June 27, 2011 Taunton School District Taunton, MA 690824 (a/k/a 703003) 2009 June 28, 2010 APPENDIX C Requests Dismissed Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Biblioteca Abelardo Diaz Alfaro San Juan, PR 807387, 807541 2011 May 20, 2011 Biblioteca Municiple Manati Francisco Alvarez Marrero Manati, PR 819356, 819669 2011 May 20, 2011 Capitol West Academy Milwaukee, WI 759862 2010 Mar. 29, 2011 Jane Stern Dorado Community Library Dorado, PR 796793, 796817 2011 May 20, 2011 Federal Communications Commission DA 11-1223 7 APPENDIX D Requests Denied Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Bethlehem Area Public Library Bethlehem, PA 772186 2011 Apr. 7, 2011 Finkelstein Memorial Library Spring Valley, NY 770543 2010 May 9, 2011 Head Start Child Development Council Stockton, CA 771364 2010 Mar. 15, 2011 Kishwaukee Education Consortium Malta, IL Form 471 not filed 2011 June 8, 2011 Lancaster Public Library Lancaster, PA 770323 2010 Nov. 15, 2010 Lyons Township High School District 204 La Grange, IL 776169 2010 Mar. 29, 2011 Peabody Charter Elementary School Santa Barbara, CA 771510 2010 June 16, 2011 Rockwood School District Eureka, MO 822485 2011 May 2, 2011 St. Mary’s Episcopal School Memphis, TN Form 471 not filed 2011 June 16, 2011 Slater Public Schools Slater, MO 822553 2011 May 23, 2011 Spencer-Owen Community School Bedford, IN 789581 2010 Apr. 13, 2011 Warrensburg-Latham CUSD 11 Warrensburg, IL 822043 2011 Apr. 25, 2011 Wartburg Public Library Wartburg, TN Form 471 not filed 2011 May 16, 2011 Yakutat City School District Yakutat, AK 822062 2011 Apr. 12, 2011