Federal Communications Commission DA 12-796 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 ) ) Anderson Elementary School ) File Nos. SLD-789495, et al. Sand Springs, Oklahoma, et al. ) ) Schools and Libraries Universal Service ) CC Docket No. 02-6 Support Mechanism ) ) ORDER Adopted: May 22, 2012 Released: May 22, 2012 By the Chief, Telecommunications Access Policy Division, Wireline Competition Bureau: 1. Consistent with precedent,1 we grant 56 requests and deny 18 requests from petitioners 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).2 The petitioners are seeking waivers of the FCC Form 471 application filing window deadline for funding years 2005, 2011 and 2012 under the E-rate program.3 2. Based on our review of the record, we find that the 56 petitioners listed in Appendices A and B have shown that special circumstances exist to justify a waiver of the FCC Form 471 filing window deadline.4 We grant the 40 waiver requests listed in Appendix A, because those petitioners’ applications 1 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) (finding special circumstances exist to justify granting waiver requests where the petitioners filed their FCC Forms 471 after the FCC Form 471 filing window deadline). 2 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). 3 The requests for waiver and review are listed in Appendices A, B, and C. Section 54.507(c) of the Commission’s rules provides for E-rate funds to be made 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. 47 C.F.R. § 54.507(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. 4 See Appendices A and B. 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, (continued….) Federal Communications Commission DA 12-796 2 or waiver petitions were filed shortly after the filing window closed.5 We also grant the 16 waiver requests listed in Appendix B, because each of those petitioners’ applications was either delayed by medical issues (and yet still filed within 30 days of the filing window deadline), submitted on time but for their certifications or item 21 attachments, or late due to a USAC error.6 We deny the waiver requests of those petitioners listed in Appendix C, because we find that those 18 other petitioners have failed to present special circumstances to justify a waiver of the Commission’s rules.7 At this time, we find no evidence of waste, fraud and abuse in the record with respect to the petitioners for which we grant relief. 3. We therefore remand the underlying applications listed in Appendices A and B to USAC for further action consistent with this order. In remanding these applications to USAC, we make no finding as to the ultimate eligibility of the services or the petitioners’ applications. 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), that 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. 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 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. (Continued from previous page) 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. 5 See Appendix A; Academy of Math and Science Order, 25 FCC Rcd at 9259, para. 8; 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, 16110, para. 2 (at n.8) (Wireline Comp. Bur. 2010) (granting waiver requests where the petitioners filed their waiver requests within 14 days after the FCC Form 471 filing window deadline). 6 See Appendix B; Academy of Math and Science Order, 25 FCC Rcd at 9259-60, para. 8 (at nn.27 and 28); Schools and Libraries Universal Service Support Mechanism, CC Docket No. 02-6, Order, 26 FCC Rcd 354, para. 2 (at n.8) (Wireline Comp. Bur. 2010). 7 See Appendix C; 47 C.F.R. § 1.3; Academy of Math and Science Order, 25 FCC Rcd at 9261, para. 13 (denying requests for waiver when the petitioners failed to present special circumstances justifying a waiver of section 54.507(c) of the Commission’s rules). Federal Communications Commission DA 12-796 3 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 C ARE DENIED. FEDERAL COMMUNICATIONS COMMISSION Trent B. Harkrader Chief Telecommunications Access Policy Division Wireline Competition Bureau Federal Communications Commission DA 12-796 4 APPENDIX A 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 Bancroft Neuro Health Cherry Hill, NJ 870236 2012 Apr. 5, 2012 Beaver Area School District Beaver, PA 875775 2012 Apr. 30, 2012 Bishop Garcia Diego School Santa Barbara, CA 875294 2012 Mar. 22, 2012 Cape Porpoise Library Cape Porpoise, ME 875756 2012 Apr. 5, 2012 Celeryville Christian School Willard, OH 875658 2012 Mar. 29, 2012 Centralia R-6 Public Schools Centralia, MO 875538 2012 Mar. 27, 2012 Chattooga County Library System Summerville, GA 875177 2012 Mar. 27, 2012 Eastern Pulaski Community School Corp. Winamac, IN 875315 2012 Mar. 28, 2012 Freshwater Education District Staples, MN 875761 2012 Apr. 6, 2012 Hartford Public Library Hartford, MI 875623 2012 Ar. 23, 2012 Herron Charter High School Indianapolis, IN 875670 2012 Apr. 25, 2012 Holy Family School Bronx, NY 875118 2012 Apr. 30, 2012 Howell Valley Elementary School West Plains, MO 859721 2012 Apr. 5, 2012 La Causa Charter School Milwaukee, WI 875778 2012 Apr. 3, 2012 La Causa Child Care Center Milwaukee, WI 875790 2012 Apr. 3, 2012 Lafayette Elementary School District Lafayette, CA 875351 2012 Apr. 10, 2012 Lane Public Library Hamilton, OH 868008 2012 Mar. 22, 2012 L’Anse Creuse Public Schools Harrison Township, MI 875767 2012 Apr. 18, 2012 Libby School District 4 Libby, MT 875720 2012 Apr. 6, 2012 Ludlow Independent School District Ludlow, KY 875175 2012 Apr. 5, 2012 Naperville Public Library Naperville, IL 875524 2012 Mar. 27, 2012 Federal Communications Commission DA 12-796 5 Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Oswayo Valley School District Shinglehouse, PA 875764 2012 Apr. 27, 2012 Peniel Baptist Academy Palatka, FL 876467, 876468, 876469 2012 Mar. 19, 2012 Pequot Lakes School District 186 Peguot Lakes, MN 875719 2012 May 11, 2012 Phoenix Charter Academy Chelsea, MA 875216 2012 Mar. 21, 2012 Sacred Heart School West Lynn, MA 845370 2012 Apr. 11, 2012 St. Mary Cathedral School Cape Girardeau, MO 875531 2012 Apr. 6, 2012 St. Peter School of Kirkwood St. Louis, MO 875782 2012 Apr. 10, 2012 Schuyler R-1 School District Queen City, MO 875241 2012 Mar. 28, 2012 Scotland County Memorial Library Laurinburg, NC 875378 2012 May 14, 2012 Scribner-Snyder Community School Scribner, NE 875254 2012 Apr. 4, 2012 Sebeka School District 820 Sebeka, MN 875593 2012 Apr. 2, 2012 Seminole County Public Libraries Sanford, FL 875768 2012 Apr. 24, 2012 Shenango Area School District New Castle, PA 875715 2012 Apr. 10, 2012 Sinclairville Free Library Sinclairville, NY 875750 2012 Apr. 9, 2012 South Barber Unified School District 255 Kiowa, KS 875532 2012 Mar. 27, 2012 South Western School District Hanover, PA 875199, 875258 2012 Apr. 26, 2012 Tilden Public Library Tilden, NE 875865 2012 Apr. 4, 2012 Tolland School District Tolland, CT 875864 2012 Apr. 27, 2012 Tri-Valley Learning Corporation Livermore, CA 856365 2012 Mar. 19, 2012 Federal Communications Commission DA 12-796 6 APPENDIX B Requests Granted (Waivers Granted for Other Special Circumstances) Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Anderson Elementary School Sand Springs, OK 789495 2011 Mar. 12, 2012 Betsie Valley District Library Thompsonville, MI 875814 2012 Apr. 25, 2012 Bosworth R-V School District Bosworth, MO 875884 2012 Apr. 16, 2012 Burke County Libraries Waynesboro, GA 875829 2012 Apr. 6, 2012 Celerity Educational Group Los Angeles, CA 815835, 816116, 816224, 816289, 816406, 816465 2011 Feb. 28, 2012 Celerity Educational Group Los Angeles, CA 816438, 816440, 818071 2011 May 14, 2012 Crown Pointe Academy Westminster, CO 875933 2012 May 3, 2012 East Central Georgia Regional Library Augusta, GA 875800 2012 Apr. 6, 2012 House of Good Shepherd School Utica, NY 875875, 875878 2012 Apr. 18, 2012 IDEA Public Schools Weslaco, TX 804822 2011 May 2, 2012 Klingber Family Center New Britain, CT 794167 2011 Mar. 8, 2012 Lick Creek Community Consolidated School Buncombe, IL 777877 2011 Mar. 16, 2012 Lincoln County Library Lincolnton, GA 875830 2012 Apr. 6, 2012 Ossining Union Free School District Ossining, NY 486474 2005 Sept. 29, 2005 School Admin District 37 Harrington, ME 875849, 875851 2012 Apr. 9, 2012 Warren County Library Warrenton, GA 875831 2012 Apr. 6, 2012 Federal Communications Commission DA 12-796 7 APPENDIX C Requests Denied Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Cape Inc. Livermore, CA 875815, 875816, 875818 2012 Apr. 9, 2012 Carrabassett Valley Library Carrabassett Valley, ME 875766 2012 Apr. 3, 2012 Cashton School District Cashton, WI 875882, 875885 2012 Apr. 17, 2012 Central Regional School District Bayville, NJ 821422 2011 Jan. 17, 2012 Dillon County Library Dillon, SC 875789 2012 Apr. 19, 2012 Fairland Local Schools Proctorville, OH Did not file with USAC 2012 Apr. 24, 2012 Floyd County Library Floydada, TX Did not file 2012 Apr. 10, 2012 Goose Creek Consolidated Independent School District Baytown, TX 823126 2011 Jan. 19, 2012 Lafayette Elementary School District Lafayette, CA 875859 2012 Apr. 10, 2012 Madison County School District Richmond, KY 822447 2011 Mar. 24, 2011 Mineral Point School District Mineral Point, WI 875899 2012 Apr. 11, 2012 NYCSARC, INC NYC Chapter AHRC New York, NY 875817 2012 May 4, 2012 Prosser School District #116 Prosser, WA 823165 2011 Jan. 11, 2012 Provincetown Public Schools Provincetown, MA 875901 2012 Apr. 23, 2012 Romeo Community School District Romeo, MI 785460 2011 Jan. 17, 2012 St. Johnsbury Academy St. Johnsbury, VT Did not file 2012 May 3, 2012 Spaulding Memorial Library Athens, PA 875805 2012 Apr. 10, 2012 Ulen-Hitterdal School District 914 Ulen, MN 875551 2012 Apr. 18, 2012