Federal Communications Commission DA 12-300 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 ) ) Aberdeen School District 5 ) File Nos. SLD-519763, et al. Aberdeen, Washington, et al. ) ) Schools and Libraries Universal Service ) CC Docket No. 02-6 Support Mechanism ) ORDER Adopted: March 5, 2012 Released: March 5, 2012 By the Deputy Chief, Telecommunications Access Policy Division, Wireline Competition Bureau: 1. Consistent with precedent,1 we grant 44 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 Based on our review of the record, we grant nine requests for review because we find that the petitioners demonstrated that they are eligible for the discount level they requested.4 These petitioners are listed in appendix A. For the other 35 requests for review, we find that good cause exists to grant the requests for review and remand them back to USAC for further processing.5 Upon remand, USAC shall provide these petitioners, listed in appendix B, with a limited 15-day opportunity to file additional documentation to support their calculations of the correct discount rates. In addition, we direct USAC to accept information already provided by the applicants that USAC had deemed late.6 2. Consistent with precedent,7 we also grant two waivers of section 54.720 of the 1 See Request for Review of the Decision of the Universal Service Administrator by Academia Claret, Puerto Rico, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-401699, et al., CC Docket No. 02- 6, Order, 21 FCC Rcd 10703 (Wireline Comp. Bur. 2006) (Academia Claret Order). 2 The requests for waiver and review 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. § 54.505. 5Appendix B. 6 See Academia Claret Order, 21 FCC Rcd at 10709, para. 14. 7 See Requests for Review and/or Waiver of Decisions of the Universal Service Administrator by Baker Hall School, et al., File Nos. SLD-596432, et al., Order, 25 FCC Rcd 17534, 17535, n.9 (Wireline Comp. Bur. 2010) (waiving the 60-day appeal filing requirement when petitioners either filed their appeals a few days late or soon after they received actual notice of the denial). Federal Communications Commission DA 12-300 2 Commission’s rules8 establishing deadlines for the filing of appeals.9 On our own motion, we also waive section 54.507(d) of the Commission’s rules and any USAC procedural deadlines, such as the invoicing deadline, that might be necessary to effectuate our ruling.10 We find good cause to waive section 54.507(d) because filing an appeal of a denial is likely to cause petitioners to miss the program’s subsequent procedural deadlines in that funding year. 3. Accordingly, we remand the underlying applications listed in 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 B and issue an award or a denial based on a complete review and analysis no later than 120 calendar days from the receipt of the requested information. In remanding these applications to USAC, we make no finding as to the ultimate eligibility of the services or the petitioners’ applications. We also direct USAC to discontinue actions against those parties listed in appendix A from which it is seeking recovery. Upon completion of its review of the applications listed in appendix B, USAC shall discontinue recovery actions against those applicants that provide sufficient documentation to support their discount calculation. 4. 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. 8 See 47 C.F.R. § 54.720. 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. 9 Public School #30 (original funding commitment decision letter was not delivered because the U.S. Post Office deemed the letter “undeliverable”); Bethlehem Center Head Start (filed a few days late). 10 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 12-300 3 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, 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 sections 54.507(d) and 54.720 of the Commission’s rules, 47 C.F.R. §§ 54.507(d) , 54.720 ARE WAIVED for the petitioners listed in appendices A and B to the limited extent provided herein. FEDERAL COMMUNICATIONS COMMISSION Gina M. Spade Deputy Chief Telecommunications Access Policy Division Wireline Competition Bureau Federal Communications Commission DA 12-300 4 APPENDIX A Appeals Granted on the Merits Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Aberdeen School District 5 Aberdeen, WA 519763 2006 Dec. 6, 2010 Dallas County School Dallas, TX 502116 2006 Oct. 20, 2006 Education Service Center – Region 1 Edinburg, TX 448041 2005 Nov. 30, 2006 Genesee County Independent School District Flint, MI 526408, 531275 2006 June 20, 2007 North American Family Institute, Inc. 515620 2006 Oct. 23, 2009 Region One Education Service Center Edinburg, TX 448041 2005 Nov. 30, 2006 St. Barnabas High School Bronx, NY 468702 2005 Nov. 25, 2011 Townshend Elementary School Townshend, VT 541440 2007 Sept. 4, 2007 Yonkers Public Schools Yonkers, NY 415068, 415045, 419033, 415095, etc. 2004, 2005, 2006 Dec. 23, 2010 Federal Communications Commission DA 12-300 5 APPENDIX B Appeals Granted and Remanded for Limited Opportunity to Provide Supporting Documentation Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Baldwin Park Unified School District Baldwin Park, CA 518552, 527053, 527173, 527431 2006 Dec. 8, 2006 Baltimore City Public School System Baltimore, MD 534030 2006 May 9, 2007 Bethlehem Center Head Start Bethlehem, NC 732287 2010 May 25, 2011 Better Learning Communities Academy St. Louis, MO 793679 2011 Oct. 20, 2011 Bradley Union Elementary School District Bradley, CA 570237 2007 May 23, 2008 California School Management Group Cameron Park, CA 564159, 571465, 585448, 585796 2007 Aug. 13, 2008 Cherokee New Campus Cherokee, NC 578910 2007 Sept. 11, 2008 Colegio Corazon de Maria Juncos, PR 452409 2005 June 6, 2006 Colegio San Felipe Arecibo, PR 456652 2005 June 5, 2006 Cotulla Independent School District Cotulla, TX 524060 2006 June 29, 2011 Edison School Consortium College Park, GA 765837 2010 Jul. 18, 2011 El Monte Union El Monte, CA 478151, 427900 2004, 2005 Mar. 21, 2011 Frederick County Public Library Frederick, MD 494024 2006 May 31, 2011 Lower Kuskokwim School District Bethel, AK 504372 2006 Nov. 2, 2007 Neptune Township School District Neptune, NJ 527742, 459500 2006 Apr. 11, 2007 New Media Technology Philadelphia, PA 538032 2006 Mar. 8, 2007 New York Public Library New York, NY 203402 2000 Sept. 12, 2005 Notre Dame High School Lawrence, MA 658630 2009 Aug. 12 2010 Paramus Catholic High School Paramus, NJ 657028 2009 Sept. 17, 2009 Preclarus Mastery Academy St. Louis, MO 819505 2011 Nov. 9, 2011 Pribilof School District St. Paul Island, AK 526076 2006 Apr. 30, 2007 Federal Communications Commission DA 12-300 6 Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Public School #30 Elizabeth, NJ 419823 2004 Oct. 25, 2005 San Jose Conservation Corps and Charter School San Jose, CA 482177 2005 Oct. 12, 2006 Saint Mary’s School Middlebury, VT 734483 2010 Nov. 22, 2010 Southern Local School District Salineville, OH 779396 2011 Nov. 3, 2011 Southside Independent School District San Antonio, TX 596496 2008 Sept. 21, 2009 South Texas Educational Technologies, Inc. Weslaco, TX 537148 2006 June 14, 2007 St. Mary School Tulsa, OK 790359 2011 Oct. 20, 2011 St. Rafael the Archangel Milwaukee, WI 778996 2011 Aug. 15, 2011 St. Raymond School Bronx, NY 559667 2007 Oct. 29, 2007 St. Rose Phillipine Duchesne Florissant, MO 727306 2010 Oct. 21, 2010 TLC Charter Tucson, AZ 373999, 381399, 339389 2003 Oct. 18, 2005 Worth County Schools Sylvester, GA 449655 2005 Feb. 21, 2006 Yeshiva RLKTI Primary Jamaica, NY 726247 2010 Dec. 6, 2011 Yeshiva Tiferes Elimelech Brooklyn, NY 675498 2009 May 19, 2010