Federal Communications Commission DA 13-1701 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 ) ) Allenstown Public Library ) File Nos. SLD-935288 et al. Suncook, New Hampshire et al. ) ) Schools and Libraries Universal Service ) CC Docket No. 02-6 Support Mechanism ) ORDER Adopted: August 2, 2013 Released: August 2, 2013 By the Chief, Telecommunications Access Policy Division, Wireline Competition Bureau: 1. Consistent with precedent,1 we address requests from petitioners seeking review of 43 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 and one petition for reconsideration of a decision of the Wireline Competition Bureau (Bureau).3 The petitioners seek waivers of the FCC Form 471 application filing window deadline under the E-rate program. 4 We grant 1 See Requests for Waiver and Review of Decisions of the Universal Service Administrator by Academy of Math and Science et al.; Schools and Libraries Universal Service Support Mechanism, CC Docket No. 02-6, Order, 25 FCC Rcd 9256, 9259-60, paras. 8 & 9 (2010) (finding special circumstances exist to justify granting waiver requests where, for example, petitioners filed their FCC Forms 471 within 14 days after the FCC Form 471 filing window deadline; filed their Forms 471 on time, but failed to timely file their certifications; or filed within 30 days despite medical issues); Requests for Waiver of Decisions of the Universal Service Administrator by Academy for Academic Excellence et al.; Schools and Libraries Universal Service Support Mechanism, CC Docket No. 02-6, Order, 22 FCC Rcd 4747, 4749, para. 4 (Wireline Comp. Bur. 2007) (finding special circumstances exist to justify granting waiver requests where petitioners were unable to file on time due to reorganizations or severe weather, but still filed within a reasonable time). 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 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)(1); see also Requests for Waiver and Review of Decisions of the Universal Service Administrator by Ashtabula Area City Schools et al.; Schools and Libraries Universal Service Support Mechanism, CC Docket No. 02-6, Order, 28 FCC Rcd 4051 (Wireline Comp. Bur. 2013) (finding special circumstances to justify granting two petitions for reconsideration). 4 The requests for review are listed in Appendices A, B, and D. The petition for reconsideration is listed in Appendix 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 as requests for waiver all of the requests for review involving FCC Form 471 applications that were submitted after the relevant filing window deadline. Federal Communications Commission DA 13-1701 2 the requests of 15 applicants, including the petition for reconsideration, and deny the requests of 29 applicants.5 2. Based on the facts and circumstances of these specific cases, we find that good cause exists to grant the requests for review for the 14 applications listed in Appendices A and B.6 We grant the nine requests listed in Appendix A, because each of those petitioners filed its applications within 14 days of the close of the filing window.7 We grant the five waiver requests listed in Appendix B because each of those petitioners filed its application 1) within 14 days of the close of the filing window, but for their certifications or item 21 attachments or 2) within a reasonable period from the close of the window despite the person responsible for submitting the form or a close family member of that person suffering an unexpected serious illness or death.8 We also grant the petition for reconsideration because, on reconsideration of the record, we have determined that the petitioner’s application was submitted within 30 days despite an unexpected illness and death in the family of the person responsible for submitting the E-rate forms.9 We deny the requests of the 29 applicants listed in Appendix D because we find that the petitioners have failed to present special circumstances justifying waivers of the Commission’s rules.10 3. 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. We therefore remand the underlying applications listed in Appendices A through C 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 waiver and review 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, 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 concerning the application listed in Appendix C IS 5 See Appendices A-D. 6 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, 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. Northeast Cellular, 897 F.2d at 1166. 7 See Appendix A. 8 See Appendix B. 9 See Appendix C. Section 1.106(c)(2) of the Commission's rules provides that a petition for reconsideration of an order may rely on facts not previously presented to the Commission if consideration of the facts relied on is required by the public interest. We find that the petition for reconsideration has raised facts demonstrating good cause for waiver of the Commission’s rules, and that consideration of the facts newly presented in the petition is warranted. 47 C.F.R. § 1.106(c)(2). 10 See Appendix D. Federal Communications Commission DA 13-1701 3 GRANTED and the application IS 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, 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, B and C, to the limited extent provided herein. 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 the requests for waiver and review filed by the petitioners listed in Appendix D ARE DENIED. FEDERAL COMMUNICATIONS COMMISSION Kimberly A. Scardino Chief Telecommunications Access Policy Division Wireline Competition Bureau Federal Communications Commission DA 13-1701 4 APPENDIX A Requests for Waiver and Review Granted FCC Form 471 Applications Filed Within 14 Days of the Close of the Filing Window Petitioner Application Number Funding Year Date Request for Review/Waiver Filed Aybar Academy Corp. Manati, PR 925792 2013 Jun. 17, 2013 Crescent View West Charter Fresno, CA 896938 2013 Apr. 4, 2013 Eagle College Prep II, Inc. Phoenix, AZ 895170 2013 Apr. 4, 2013 Eagle College Prep Endeavor St. Louis, MO 895184 2013 May 13, 2013 Eagle South Mountain Charter, Inc. Phoenix, AZ 895182 2013 Apr. 4, 2013 Pillager School District 116 Pillager, MN 932407 2013 May 28, 2013 St. Vincent De Paul School San Diego, CA 899247 2013 May 13, 2013 Swanville School District 486 Swanville, MN 932587 2013 Jun. 11, 2013 Trails Regional Library Warrensburg, MO 931738 2013 Apr. 30, 2013 APPENDIX B Requests for Waiver and Review Granted Waivers Granted for Other Special Circumstances Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Deerfield Valley Elementary School Wilmington, VT 920080 2013 May 6, 2013 East Valley High School Mesa, AZ 874534 2012 May 6, 2013 Hamlin-Lincoln County Public Library Hamlin, WV 933247 2013 May 7, 2013 Library of Virginia Richmond, VA 931360, 933008 2013 Apr. 29, 2013 Silverton Public Library Silverton, CO 924754 2013 Jun. 27, 2013 Federal Communications Commission DA 13-1701 5 APPENDIX C Petition for Reconsideration Granted Applicant Application Number Funding Year Date Request for Reconsideration Filed Bucklin R-2 School Bucklin, MO 933571 2013 Jun. 4, 2013 APPENDIX D Requests for Waiver and Review Denied Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Allenstown Public Library Suncook, NH 935288 2013 Jun. 28, 2013 Bertha Hewitt Public Schools Bertha, MN 933807 2013 Jul. 1, 2013 Canyon Creek School District 4 Billings, MT 933714 2013 Apr. 30, 2013 Central Linn School District Brownsville, OR 916813 2013 Apr. 29, 2013 Cheder Menachem Kingston, PA 930986 2013 Jul. 1, 2013 Contoocook Valley Regional School District Peterborough, NH 935348 2013 Jun. 26, 2013 Durham Public Library Durham, CT 935127 2013 Jun. 10, 2013 El Tejon Unified School District Lebec, CA did not file 2013 May 29, 2013 Emmaus Lutheran Grade School Milwaukee, WI did not file 2013 May 29, 2013 Greater Lowell Technical High School Tyngsboro, MA 933987, 934047 2013 Apr. 25, 2013 Hamilton County Juvenile Court Cincinnati, OH 935269 2013 Jun. 26, 2013 King Center Charter School Buffalo, NY 934107 2013 Apr. 29, 2013 Kootenai Technical Education Campus Rathdrum, ID 934347 2013 May 3, 2013 Lexington School for the Deaf Jackson Hts., NY 891674 2012 Jun. 3, 2013 Liberty Center Public Library Liberty Center, OH 933289 2013 Jun. 21, 2013 Long Branch Free Public Library Long Branch, NJ 934867 2013 Jun. 4, 2013 Federal Communications Commission DA 13-1701 6 Petitioner Application Number(s) Funding Year Date Request for Review/Waiver Filed Marian Catholic High School Chicago Hts., IL 897169 2012 May 13, 2013 Nativity Jesuit Middle School Milwaukee, WI 933909 2013 May 1, 2013 Norwood Elementary School District 63 Peoria, IL 935208 2013 May 30, 2013 Oakdale Christian High School Jackson, KY did not file 2013 May 17, 2013 Our Redeemer Lutheran School Wauwatosa, WI did not file 2013 May 29, 2013 Rosholt School District Rosholt, WI 935188 2013 Jun. 4, 2013 St. Anthony Catholic School Lakeland, FL 934067 2013 Apr. 29, 2013 St. Jerome School West Long Branch, NJ 933048 2012 May 9, 2013 St. Joseph School for the Deaf Bronx, NY did not file 2013 Jun. 6, 2013 St. Mary of the Assumption Catholic School Van Wert, OH did not file 2013 May 13, 2013 Stafford County Public Schools Stafford, VA 903029 2013 May 15, 2013 Torah Academy School Minneapolis, MN 933715 2013 May 1, 2013 Trinity Lutheran Grade School Mequon, WI did not file 2013 May 29, 2013