Federal Communications Commission DA 12-1172 Before the Federal Communications Commission Washington, DC 20554 In the Matter of ) ) Requests for Review and/or Requests for ) Waiver of the Decisions of the ) Universal Service Administrator by ) ) Al Noor High School ) File Nos. SLD-529343, et al. Brooklyn, New York, et al. ) ) Schools and Libraries Universal Service ) CC Docket No. 02-6 Support Mechanism ) ORDER Adopted: July 23, 2012 Released: July 23, 2012 By the Chief, Telecommunications Access Policy Division, Wireline Competition Bureau: 1. Consistent with precedent,1 we grant 16 requests from petitioners2 seeking review of decisions made by the Universal Service Administrative Company (USAC) under the E-rate program (more formally known as the schools and libraries universal service support program).3 In each case, USAC denied or rescinded funding because it found that the petitioners violated the Commission’s rule that a contract or legally binding agreement be in place when the FCC Form 471 application is submitted.4 We also dismiss as moot two requests for review.5 1 See Request for Waiver of the Decision of the Universal Service Administrator by Barberton City School District, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-400938, et al., CC Docket No. 02-6, 23 FCC Rcd 15526 (Wireline Comp. Bur. 2008) (Barberton Order) (finding, among other things, that petitioners all had some form of an agreement in place during the relevant funding year prior to the filing of their applications, notwithstanding minor irregularities with respect to the contracts at issue) and Requests for Review and/or Requests for Waiver of the Decisions of the Universal Service Administrator by Animas School District 6, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-427902, et al., CC Docket No. 02- 6, 26 FCC Rcd 16903 (Wireline Comp. Bur. 2011) (granting petitioners’ appeals consistent with the Barberton Order). 2 The requests for review and for review and waiver granted by this Order are listed in Appendices A and B. 3 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). 4 See 47 C.F.R. § 54.504(a). 5 The requests for review that are dismissed by this Order are listed in Appendix C. Federal Communications Commission DA 12-1172 2 2. As an initial matter, consistent with precedent, we waive6 section 54.720 of the Commission’s rules, which requires applicants to seek review of a USAC decision within 60 days, for Cook County School District 130, Edgewood Independent School District, Mayer Unified School District 43, and Richland Springs Independent School District because we find that they submitted their appeals to the Commission or USAC only a few days late.7 Based on our review of the record, we find that the 13 petitioners identified in Appendix A have demonstrated that good cause exists to justify waiver of the rule that a signed contract be in place when the FCC Form 471 application is submitted.8 Although the record demonstrates that the petitioners’ contracts had minor errors or were not signed and dated by both parties before the petitioners filed their FCC Form 471 applications, all petitioners had some form of an agreement in place during the relevant funding year prior to the filing of their FCC Form 471 applications. We therefore waive the Commission’s rules requiring that a signed contract be in place prior to the filing of an FCC Form 471 for these 13 petitioners.9 We also grant the appeals of the three petitioners identified in Appendix B because these petitioners demonstrated that they had contracts in place that complied with the Commission’s rules and procedures when submitting their FCC Form 471 applications. Additionally, we dismiss as moot the request for review identified in Appendix C and filed by Atlantic City BVE-Admin (Atlantic City) and Lyme-Old Lyme Public Schools (Lyme-Old Lyme) because, on appeal, USAC reversed its initial determinations and issued new decisions approving funding for Atlantic City and Lyme-Old Lyme.10 3. On our own motion, we waive section 54.507(d) of the Commission’s rules and direct USAC to waive any procedural deadline, such as the invoicing deadline, that might be necessary to effectuate our ruling.11 We find good cause to waive section 54.507(d) because filing an appeal of a 6 Generally, the Commission’s rules may be waived if good cause is shown. 47 C.F.R. § 1.3. The Commission may exercise its discretion to waive a rule 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, 1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166. Waiver of the Commission’s rules is appropriate only if both (i) special circumstances warrant a deviation from the general rule, and (ii) such deviation will serve the public interest. NetworkIP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008); Northeast Cellular, 897 F.2d at 1166. 7 See 47 C.F.R. § 54.720; Requests for Review and/or Waiver of Decisions of the Universal Service Administrator by ABC Unified School District, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD- 584091, et al., CC Docket No. 02-6, Order, 26 FCC Rcd 11019 (Wireline Comp. Bur. 2011) (waiving our filing deadline for appeals because petitioners submitted their appeals to the Commission within a reasonable period of time after receiving actual notice of USAC's adverse decision). Cook County School District 130, Edgewood Independent School District, and Mayer Unified School District 43 filed their appeals one day late. Richland Springs Independent School District filed its appeal two days late. 8 See 47 C.F.R. § 54.504(a) (previously codified at 47.C.F.R. § 54.504(c)). 9 Id. 10 See Letter from Martin Friedman, Atlantic City BVE-Admin, to USAC, Schools and Libraries Division (dated Oct. 10, 2011) (Atlantic City Appeal to USAC); Letter from USAC, Schools and Libraries Division, to Martin Friedman, Atlantic City BVE-Admin (dated Jan. 26, 2012 (Administrator’s Decision on Appeal Letter); Letter from John Rhodes, Lyme-Old Lyme Public Schools, to USAC, Schools and Libraries Division (dated June 5, 2006).(Lyme-Old Lyme Appeal to USAC); Letter from USAC, Schools and Libraries Division, to John Rhodes, Lyme-Old Lyme Public Schools (dated Oct. 10, 2006) (Administrator’s Decision on Appeal Letter). 11 47 C.F.R. § 54.507(d) (requiring non-recurring services to be implemented by September 30 following the close of the funding year). Federal Communications Commission DA 12-1172 3 denial is likely to cause the applicant to miss the program’s subsequent procedural deadlines in that funding year. We also find that at this time there is no evidence of waste, fraud and abuse in the record. 4. We therefore remand the underlying applications listed in the Appendices A and B to USAC for further action consistent with this order. To ensure that the underlying applications are resolved expeditiously, we direct USAC to complete its review of each application listed in Appendix A and B and issue an award or denial based upon a complete review and analysis no later than 90 calendar days from the release of this order. In remanding these applications to USAC, we make no finding as to the ultimate eligibility of the services or the underlying applications. We direct USAC to discontinue recovery actions against those parties based on the denials that are addressed herein.12 5. ACCORDINGLY, IT IS ORDERED that, 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 delegated in 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 and/or Requests for Waiver filed by the petitioners as listed in Appendices A and B ARE GRANTED and 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 and/or Requests for Waiver filed by the petitioners as listed in Appendix C ARE DISMISSED. 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, and 1.3 of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, and 1.3 of the Commission’s rules, that section 54.720(a) of the Commission’s rules, 47 C.F.R. § 54.720(a), IS WAIVED for Cook County School District 130, Edgewood Independent School District, Mayer Unified School District 43, and Richland Springs Independent School District. 8. IT IS FURTHER ORDERED that, 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 delegated in 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), section 54.504(a) of the Commission’s rules, 47 C.F.R. § 54.504(a) IS WAIVED for the petitioners as listed in Appendix A. 12 See Cook County School District 130, East St. Louis School District No. 189, Eastern Upper Peninsula Intermediate School District, Edgewood Independent School District, Holy Rosary Elementary Academy, Kingsville Independent School District, Mayer Unified School District 43, Richland Springs Independent School District, and Royal Independent School District. USAC shall cease recovery actions against both the applicant and the service provider, unless otherwise provided in this order. Federal Communications Commission DA 12-1172 4 9. 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(d) of the Commission’s rules, 47 C.F.R. § 54.507(d), IS WAIVED for the parties to the limited extent provided herein. FEDERAL COMMUNICATIONS COMMISSION Trent B. Harkrader Chief Telecommunications Access Policy Division Wireline Competition Bureau Federal Communications Commission DA 12-1172 5 APPENDIX A Petitioners Granted Waivers Petitioner Application Number(s) Funding Year Date Appeal Filed Al Noor High School Brooklyn, New York 529343 2006 June 8, 2007 Cook County School District Blue Island, Illinois 301034 2002 Mar. 21, 2011 Eastern Upper Peninsula Intermediate School District Sault Ste. Marie, Michigan 365335 365661 2003 Feb. 12, 2010 Edgewood Independent School District San Antonio, Texas 733321 2010 May 3, 2012 Edgewood Independent School District San Antonio, Texas 687739 2009 May 14, 2012 Holtville Unified School District Holtville, California 807589 2011 Dec. 13, 2011 Holy Rosary Elementary Academy Union City, New Jersey 458734 459674 2005 Sept. 29, 2009 Kingsville Independent School District Kingsville, Texas 369934 2003 Jan. 5, 2010 Los Fresnos Consolidated Independent School District Los Fresnos, Texas 366160 2003 Nov. 29, 2007 Mayer Unified School District 43 Mayer, Arizona 486830 2005 Sept. 28, 2009 Richland Springs Independent School District Richland Springs, Texas 288683 406735 2002 2004 Dec. 17, 2007 Royal Independent School District Pattison, Texas 351477 2003 Jan. 11, 2011 Wayne County Public Schools Goldsboro, North Carolina 772229 2011 Apr. 12, 2012 APPENDIX B Petitioners Appeals Granted on the Merits Petitioner Application Number(s) Funding Year Date Appeal Filed Ascension Parish School District Donaldsonville, Louisiana 530997 2006 Mar. 12, 2007 East St. Louis School District No. 189 East St. Louis, Illinois 200698 200 Mar. 31, 2009 Manchester City Library Manchester, New Hampshire 777471 2011 Jan. 6, 2012 Federal Communications Commission DA 12-1172 6 APPENDIX C Petitioners Appeals Dismissed Petitioner Application Number(s) Funding Year Date Appeal Filed Atlantic City BVE-Admin Atlantic City, New Jersey 520460 2006 Oct. 18, 2011 Lyme-Old Lyme Public Schools Old Lyme, Connecticut 526727 2006 June 30, 2006