Federal Communications Commission DA 11-1588 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 ) ) All Saints Elementary School ) File Nos. SLD-816848, et al. Los Angeles, CA, et al. ) ) Schools and Libraries Universal Service ) CC Docket No. 02-6 Support Mechanism ) ORDER Adopted: September 23, 2011 Released: September 23, 2011 By the Deputy Chief, Telecommunications Access Policy Division, Wireline Competition Bureau: 1. In this order, we address 34 requests from petitioners seeking waivers of the FCC Form 471 application filing window deadline for funding years 2007, 2009, and 2011 under the E-rate program (formally known as the schools and libraries universal service support program).1 Specifically, consistent with the Commission’s Academy of Math and Science Order,2 and based on our review of the record, we find that two petitioners filed their applications prior to the E-rate program’s FCC Form 471 application filing window deadline and 24 other petitioners have demonstrated that special circumstances exist to justify a waiver of that 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 deny the remaining eight requests for waiver because we find that the 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); infra para. 2; 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); Requests for Waivers and Review of the Decisions of the Universal Service Administrator by Beaver Area Memorial Library, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-750009, et al., CC Docket No. 02- 6, Order, 26 FCC Rcd 10317 (Wireline Comp. Bur. 2011). 3 See appendices A, B and C; 47 C.F.R. § 54.507(c). Federal Communications Commission DA 11-1588 2 petitioners failed to present special circumstances to justify a waiver of the Commission’s rules.4 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.5 As an initial matter, we grant two appeals after finding USAC mistakenly rejected the applications even though the schools filed their applications and required certifications before the FCC Form 471 application filing window deadline for funding years 2007 and 2009.6 3. Additionally, 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 to the instant cases, we grant 24 requests seeking waivers of the FCC Form 471 application filing window deadline for funding year 2011.8 Specifically, we grant requests from: (1) 20 petitioners that filed their FCC Form 471 applications within 14 days after the filing window deadline closed;9 (2) two petitioners that timely filed their FCC Form 471 applications, but filed their associated certifications late;10 (3) one petitioner whose FCC Form 471 application was filed late because its E-rate staff person suffered a serious medical emergency,11 and (4) one petitioner that was subject to a financial 4 See appendix D; 47 C.F.R. § 1.3. 5 See 47 C.F.R. § 54.507(c). 6 See appendix A; Darrouzett Independent School District; Little Lake City School District; Academy of Math and Science Order, 25 FCC Rcd at 9259, para. 7. 7 See Academy of Math and Science Order, 25 FCC Rcd 9256. 8 See appendices B and C. 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 B; Academy of Math and Science Order, 25 FCC Rcd at 9259-60, para. 8. 10 All Saints Elementary School filed its certification late due to a clerical error. See All Saints Elementary School Request for Review. Logan-Rogerville School District r-8 filed its certification late due to a technical glitch with USAC’s electronic filing system. See Logan-Rogerville School District r-8 Request for Review. See also Academy of Math and Science Order, 25 FCC Rcd at 9259-60, para. 8. 11 Boston Renaissance School. See Academy of Math and Science Order, 25 FCC Rcd at 9259-60, para. 8; Requests for Waivers and Review of the Decisions of the Universal Service Administrator by Acorn Public Library District, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-637819, et al., CC Docket No. 02- 6, Order, 23 FCC Rcd 15474, 15477-78, para. 8 (Wireline Comp. Bur. 2008). Federal Communications Commission DA 11-1588 3 reorganization by its city causing it to file its FCC Form 471 application late.12 Moreover, at this time, we find no evidence of waste, fraud, or abuse. Therefore, we find that good cause exists to grant the 26 petitioners’ requests for review or waiver and remand the underlying applications listed in appendices A, B, and C 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. 4. We deny the remaining eight requests seeking waivers of the FCC Form 471 application filing window deadline for funding year 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.14 5. 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, B, and C ARE GRANTED and their underlying applications ARE REMANDED to USAC for further consideration in accordance with the terms of this order. 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, 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. 7. 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, 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 B and C to the limited extent provided herein. FEDERAL COMMUNICATIONS COMMISSION Gina Spade Deputy Chief Telecommunications Access Policy Division Wireline Competition Bureau 12 Even though the City of Loganville transferred fiduciary responsibility for the O’Kelly Memorial Library’s telecommunications services to the library itself in mid-March of 2011, the library still filed its application within 30 days of the application filing window deadline. See O’Kelly Memorial Library Request for Review. See Requests for Waivers and Review of the Decisions of the Universal Service Administrator by Academy of Academic Excellence, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-539076, 539722, et al., CC Docket No. 02-6, Order, 22 FCC Rcd 4747-48, para. 4 (at n.11) (Wireline Comp. Bur. 2007). 13 See appendices A, B, and C. 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 D; 47 C.F.R. § 54.507(c); Academy of Math and Science Order, 25 FCC Rcd at 9261-62, para. 13. Federal Communications Commission DA 11-1588 4 APPENDIX A Requests Granted (FCC Form 471 Applications Filed Before the Close of the Filing Window) Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Darrouzett Independent School District Darrouzett, TX 685919 2009 Mar. 8, 2010 Little Lake City School District Santa Fe Springs, CA 567790 2007 Mar. 30, 2010 APPENDIX B Requests Granted (FCC Form 471 Applications Filed Within 14 Days of the Close of the Filing Window) Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Annunciation Elementary School Denver, CO 821374 2011 Aug. 11, 2011 Brown County Educational Service Center Georgetown, OH 800383 2011 July 13, 2011 Calvert County Public Schools Prince Frederick, MD 821684 2011 June 28, 2011 Chambers County Library System Anahuac, TX 800756 2011 Aug. 8, 2011 East Greenbush Community Library East Greenbush, NY 803326 2011 Aug. 1, 2011 Guernsey County District Library Cambridge, OH 821510 2011 Aug. 11, 2011 Karl Miles LeCompte Memorial Library Corydon, IA 821479 2011 Aug. 9, 2011 Media-Upper Providence Free Library Media, PA 821504 2011 Aug. 22, 2011 North Pointe Academy Highland Park, MI 822033, 822035, 822036, 822037, 822038, 822039 2011 Aug. 23, 2011 Oaks Christian School Westlake Village, CA 821946 2011 Aug. 18, 2011 Perry Central Community School Corp. Leopold, IN 821852 2011 Aug. 31, 2011 Saint Mary’s Springs High School Fond du Lac, WI 821410 2011 Aug. 8, 2011 Federal Communications Commission DA 11-1588 5 Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Salem City Public Schools Salem, VA 821799 2011 July 21, 2011 Schulenburg Secondary School Schulenburg, TX 822020 a/k/a 822445 2011 July 28, 2011 Seminole County School District Donalsonville, GA 821880 2011 Aug. 5, 2011 Shekinah Learning Institute on behalf of Shekinah Radiance Charter School San Antonio, TX 819799 2011 July 27, 2011 Spring Valley CC School District 99 Spring Valley, IL 822245 2011 Aug. 15, 2011 Stafford County Public Schools Stafford, VA 799919 2011 Sept. 8, 2011 Union County Library System Lewisburg, PA 821878 2011 Aug. 4, 2011 The White Mountain School Bethlehem, NH 821721, 821751, 821975, 821976 2011 Aug. 18, 2011 APPENDIX C Requests Granted (Waivers Granted for Other Special Circumstances) Petitioner Application Number Funding Year Date Request for Review/Waiver Filed All Saints Elementary School Los Angeles, CA 816848 2011 Aug. 24, 2011 Boston Renaissance School Boston, MA 794236 2011 Aug. 1, 2011 Logan-Rogersville School District r-8 Rogersville, MO 776892 2011 Aug. 16, 2011 O’Kelly Memorial Library Loganville, GA 822368 2011 Aug. 5, 2011 Federal Communications Commission DA 11-1588 6 APPENDIX D Requests Denied Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Canton Public Library Canton, MI 822725 2011 Aug. 15, 2011 Crossroad Schools Jacksonville, FL 822527 2011 Sept. 12, 2011 El Paso Public Library El Paso, TX Did not file 2011 July 25, 2011 Gloucester City Library Gloucester City, NJ 799205 a/k/a 822466 2011 Aug. 9, 2011 supplemented on Sept. 7, 2011 Leepertown Township Public Library Bureau, IL 821854 2011 Aug. 9, 2011 Lower Kuskokwim School District Bethel, AK Did not file 2011 July 27, 2011 Mountain View Christian School Las Vegas, NV 822054 2011 Sept. 8, 2011 SETA Head Start Sacramento, CA 806378 2011 Aug. 23, 2011