Federal Communications Commission DA 12-1261 Before the Federal Communications Commission Washington, DC 20554 In the Matter of ) ) Requests for Waiver and/or Review of ) Decisions of the ) Universal Service Administrator by ) ) Baltimore County Public Schools ) SLD Nos. 703513, et al. Towson, Maryland, et al. ) ) Schools and Libraries Universal Service ) CC Docket No. 02-6 Support Mechanism ) ORDER Adopted: August 3, 2012 Released: August 3, 2012 By the Chief, Telecommunications Access Policy Division, Wireline Competition Bureau: 1. Consistent with precedent,1 we deny 13 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 We find that the petitioners failed to submit their requests for review and/or waiver either to the Commission or to USAC within 60 days as required by the Commission’s rules.4 Based on our review of the record, we deny the 13 requests because the petitioners have failed to show special circumstances necessary for the Commission to waive the deadline.5 We also deny a petition for reconsideration by Spring Cove School 1See Request for Review of Decisions of the Universal Service Administrator by Agra Public Schools I-134, Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-363747, et al., CC Docket No. 02-6, Order, 25 FCC Rcd 5684 (Wireline Comp. Bur. 2010) (denying 104 appeals on the grounds that the petitioners failed to submit their appeals either to the Commission or to USAC within 60 days as required by the Commission’s rules without showing special circumstances necessary for the Commission to waive the deadline); Requests for Review and/or Requests for Waiver of Decisions of the Universal Service Administrator by Bonnie Brae Educational Center School, Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-625470, et al., CC Docket No. 02-6, Order, 27 FCC Rcd 1344 (Wireline Comp. Bur. 2012) (denying 22 appeals on the grounds that the petitioners failed to submit their appeals either to the Commission or to USAC within 60 days as required by the Commission’s rules and without showing special circumstances necessary for the Commission to waive the deadline). 2 The requests for waiver and/or review are listed in Appendix A. 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 47 C.F.R. § 54.720. 5 The Commission may waive any provision of its rules for good cause 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 (Continued….) Federal Communications Commission DA 12-1261 2 District (Spring Cove) seeking review of an earlier Wireline Competition Bureau order to the extent that it rejected a challenge by Spring Cove to a USAC commitment adjustment decision.6 Spring Cove argues in its petition for reconsideration that its original appeal to the Commission was filed within 60 days of receiving a demand payment letter sent by USAC, and thus was not in violation of our rules.7 We find, however, that the letter actually rendering USAC’s decision was dated May 7, 2010 and Spring Cove’s appeal was filed 84 days later on July 30, 2010.8 2. 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, 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 listed in Appendix A ARE DENIED. (continued from previous page) 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. 6 Letter from Nathaniel Hawthorne, counsel for Spring Cove School District, to Federal Communications Commission, CC Docket 02-6, filed Aug. 3, 2011 (seeking partial reconsideration of Requests for Review and/or Requests for Waiver Boston Renaissance School, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD- 735147, et al., CC Docket No. 02-6, Order, 26 FCC Rcd 10405 (Wireline Comp. Bur. 2011)) (Spring Cove Petition for Reconsideration); see also Letter from Nathaniel Hawthorne, counsel for Spring Cove School District, to Federal Communications Commission, CC Docket 02-6, filed Sept. 12, 2011 (Spring Cove Addendum to Petition for Reconsideration). The Bureau has the authority to act on petitions requesting reconsideration of final actions taken pursuant to delegated authority. 47 C.F.R. § 1.106(a)(l). 7 Spring Cove Petition for Reconsideration at 4. In its request for reconsideration, Spring Cove also takes issue with our initial decision to treat its filing as an appeal of a USAC commitment adjustment (COMAD) decision, because Spring Cove’s original application was captioned as a “motion to stay” the USAC COMAD decision and a request for “declaratory judgment” overturning the basis behind USAC’s decision. Spring Cove Petition for Reconsideration at 1; Spring Cove Addendum to Petition for Reconsideration at 1-2. We find that argument to be meritless. Regardless of how an applicant captions a request for review, an application seeking to have the Commission overturn a USAC decision is functionally an appeal of that decision, and as such must be filed within 60 days of the date of the decision. To allow applicants to extend the deadline for appeals beyond 60 days by changing the title of the document they use to make the request would place form over substance and invite countless late filed appeals masquerading under the façade of a different pleading title. 8 See Letter from USAC, Schools and Libraries Division, to Linda Alexander, Spring Cove School District, dated May 7, 2010 (Notification of Commitment Adjustment Letter) (noting that any appeal “must be received by the FCC or postmarked within 60 days of the date of [this] letter”); Letter from Nathaniel Hawthorne, counsel for Spring Cove School District, to Federal Communications Commission, CC Docket 02-6, filed July 30, 2010 (Spring Cove Appeal). Our rules state that parties seeking review of a USAC decision must file within 60 days of the issuance of the decision. 47 C.F.R. § 54.720. Federal Communications Commission DA 12-1261 3 3. IT IS FURTHER ORDERED, pursuant to authority contained in sections 1-4 and 254 of the Communications Act, as amended, 47 U.S.C. § 15 1-154 and 254, and pursuant to authority in sections 0.91, 0.291, 1.3, 1.106, and 54.722(a) of the Commission's rules, 47 C.F.R. § 0.91, 0.291, 1.3, 1.106, and 54.722(a), that the petition for reconsideration filed by Spring Cove School District IS DENIED. FEDERAL COMMUNICATIONS COMMISSION Trent B. Harkrader Chief Telecommunications Access Policy Division Wireline Competition Bureau Federal Communications Commission DA 12-1261 4 APPENDIX A List of Petitioners Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Baltimore County Public Schools Towson, Maryland 703513 2010 Jun. 26, 2012 Cicero School District 99 Cicero, Illinois 762978 2010 Jun. 8, 2012 Elbert County Library District Elizabeth, Colorado 618164 2009 Dec. 14, 2009 El-Hajj Malik El-Shabazz Academy Lansing, Michigan 620984 2008 Jul. 2, 2012 Fund Ed Consulting Group (See Appendix B) 2010 Feb. 28, 2011 Harlingen Construction Independent School District Harlingen, Texas 574609 2007 Apr. 10, 2008 Mt. Vernon Township High School Mt. Vernon, Illinois 777692 2011 July 27, 2012 Northwest Lutheran School Association Milwaukee, Wisconsin 815748 2011 Jun. 20, 2012 Sampson County School District Clinton, North Carolina 561507 2007 Jun. 12, 2012 Shades Mountain Christian School Clayton, Missouri 800947 2011 Jun. 11, 2012 Sheffield City School District Sheffield, Alabama 776192 2011 July 30, 2012 SS. Peter and Paul School Lexington, Kentucky 781679 2011 Jul. 12, 2012 United Systems, Inc. (Blackwell Independent School District 45) Oklahoma City, Oklahoma 401266 2004 Jun. 28, 2012 Federal Communications Commission DA 12-1261 5 APPENDIX B Applicants in the Request for Review filed by Fund Ed Consulting Group Applicant Application Number Antelope Valley Learning Academy Palmdale, California 715419 Cresent View South Charter High School Fresno, California 715394 Cresent View West Charter School Fresno, California 715416 Desert Sands Charter High School Palmdale, California 715423 Diego Hills Public Charter San Diego, California 730788 Vista Real Charter High School Oxnard, California 715405