Federal Communications Commission DA 22-7 Before the FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D.C. 20554 In the Matter of Requests for Waiver and Review of Decisions of the Emergency Connectivity Fund Program Administrator by Fresno Unified School Districts, et al. Establishing Emergency Connectivity Fund to Close the Homework Gap ) ) ) ) ) ) ) ) ) ) File Nos. ECF202108943 et al. WC Docket No. 21-93 ORDER Adopted: January 4, 2022 Released: January 4, 2022 By the Chief, Wireline Competition Bureau: I. INTRODUCTION 1. In this order, we address seven requests for waivers of the $400 maximum reasonable support amount for connected devices reimbursed through the Emergency Connectivity Fund Program. The Requests for Waiver are listed in Appendices A and B. Specifically, we find that five of the petitioners have demonstrated special circumstances that justify a waiver of the $400 reasonable support amount cap for connected devices in order to fully meet the remote learning needs of students, school staff and library patrons with disabilities, and grant these requests accordingly. 47 CFR § 54.1707(a). We also deny two requests because we find that the petitioners failed to present special circumstances to justify a waiver of the Commission’s rules for the Emergency Connectivity Fund Program. 2. To ensure an expeditious resolution of these matters, we direct the Universal Service Administrative Company (USAC) to complete its review of these seven funding requests consistent with this order and to recommend a commitment, denial or revised decision based on a complete review and analysis no later than 60 calendar days from the release of this order. To the extent any of these funding requests have already been modified, we remand those applications to USAC for review consistent with this order. II. BACKGROUND 3. As part of the American Rescue Plan Act of 2021 (the Act), Congress appropriated $7.171 billion to the Commission to promulgate rules providing for the distribution of funding from the Emergency Connectivity Fund to eligible schools and libraries for the purchase of eligible equipment and/or advanced telecommunications and information services for use by students, school staff, and library patrons at locations that include locations other than a school or library. American Rescue Plan Act, 2021, H.R. 1319, Pub. L. No. 117-2, 117th Cong., tit. VII, § 7402(a)(1)-(2) (2021) (enacted), available at https://www.congress.gov/bill/117th-congress/house-bill/1319/text (American Rescue Plan Act) (enrolled bill). In providing support through the Emergency Connectivity Fund, the Act requires that reimbursements for eligible equipment and services “not exceed an amount that the Commission determines . . . is reasonable.” H.R. 1319, tit. VII, § 7402(b). The Act defines eligible equipment to mean (1) Wi-Fi hotspots, (2) modems, (3) routers, (4) devices that combine a modem and router, and (5) connected devices Id. § 7402(d)(6). and eligible services to mean advanced telecommunications and information services, as such term is used in section 254(h) of the Communications Act. Id. § 7402(d)(1). 4. On May 10, 2021, the Commission adopted a Report and Order establishing the rules for the Emergency Connectivity Fund Program to distribute the $7.171 billion in funding to eligible schools and libraries. See generally Establishing the Emergency Connectivity Fund to Close the Homework Gap; WC Docket No. 21-93, Report and Order, 36 FCC Rcd 8696 (2021) (Emergency Connectivity Fund Report and Order). Pursuant to the statutory directive to determine reasonable costs to reimburse through the Emergency Connectivity Fund Program, the Commission established a reasonable maximum support amount of $400 for each connected device (i.e., a laptop or tablet computer). Emergency Connectivity Fund Report and Order, 26 FCC Rcd at 8730-31, para. 69; 47 CFR § 54.1707. The Commission recognized however that the reasonable cost of connected devices for individuals with disabilities may be higher than the $400 cap per connected device and directed schools and libraries to seek a waiver of the this support amount cap if they can demonstrate that the additional cost for the connected devices is necessary to meet the needs of students, school staff and library patrons with disabilities. Id. at 8731, para. 70. The Order emphasized that “applicants seeking a waiver for this purpose should demonstrate that the additional cost associated with connected devices for those with disabilities is necessary to meet the needs of students, school staff, and library patrons with disabilities that would otherwise not be met with the purchase of a connected device at the $400 reasonable support amount.” Id. 5. For each of the petitions addressed in this order, the petitioners submitted timely applications and subsequently sought waivers of section 54.1707(a) to request funding for the additional costs of the connected devices needed to accommodate students and school staff with disabilities and to meet their remote learning needs. III. DISCUSSION 6. Generally, the Commission’s rules may be waived for good cause shown. 47 CFR § 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). 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. 7. Based on the facts before us, we now grant five requests for waiver of section 54.1707(a) and the $400 reasonable support amount cap for connected devices because we find the public interest in ensuring individuals with disabilities can receive equipment that meets their educational needs warrants a deviation from the general rule. In the Emergency Connectivity Fund Report and Order, the Commission established an expectation that connected devices be accessible to and usable by individuals with disabilities and urged schools and libraries to request the devices needed to accommodate students, school staff, and library patrons with disabilities. Emergency Connectivity Fund Report and Order, 26 FCC Rcd at 8709-10, para. 30. Recognizing that accessible devices may be more expensive, we find there is good cause to waive section 54.1707(a) of the Commission’s rules to allow the petitioners to seek the full amount of support needed to purchase connected devices that are accessible to and usable by their students, school staff, and library patrons with disabilities. 8. Each of the petitioners serves students and school staff with disabilities and has shown that the requested connected devices have certain specifications that are required for those students and staff to fully participate in remote learning. For example, petitioners requested connected devices that are compatible with software providing screen magnification and screen reading functionalities for blind or visually impaired students and school staff, and captioning services for deaf students and school staff. See, e.g., Arizona Schools for the Deaf and the Blind Waiver Request at 3-4. Petitioners also requested larger screens, See, e.g., St. Francis School for the Deaf Waiver Request at 1; Fresno Unified School District Waiver Request at 2. enhanced resolution for visually impaired students and school staff, See, e.g., Arizona Schools for the Deaf and the Blind Waiver Request at 4. and touchscreens for students with significant fine motor skills difficulties. See, e.g., NYSARC Inc, New York City Chapter, AHRC New York City Waiver Request at 1. The petitioners make clear that all of these requested specifications require more processing power, storage, and memory than a standard connected device, resulting in a higher price per device. In light of these factors, we find that the petitioners have demonstrated that the additional cost associated with connected devices for those with disabilities is necessary to meet the needs of students and school staff with disabilities and that a waiver of the $400 reasonable support amount for connected devices under section 54.1707(a) is justified. Emergency Connectivity Fund Report and Order, 26 FCC Rcd at 8731, para. 70. We therefore waive the $400 reasonable support amount cap for connected devices to enable the petitioners to be fully reimbursed for the purchase of connected devices necessary for their students and school staff with disabilities to engage in remote learning. 9. We deny the remaining two requests because we find that the petitioners failed to present special circumstances justifying a waiver of section 54.1707(a) and the $400 reasonable support amount cap on connected devices. See Appendix B. In the Emergency Connectivity Fund Report and Order, we explicitly contemplated that waivers may be appropriate to address the higher equipment costs associated with ensuring connected devices are accessible to individuals with disabilities. Emergency Connectivity Fund Report and Order, 26 FCC Rcd at 8731, para. 70. After reviewing the facts of these petitioners’ requests, we find that the petitioners’ waiver requests do not present such compelling circumstances. Specifically, one petitioner is seeking additional funding for equipment accessories that are ineligible for reimbursement through the Emergency Connectivity Fund, as well as funding to purchase more than one connected device per student. See Bay Area Technology School Waiver Request at 1 (requesting a waiver of the $400 cap to fund Logitech Crayons for use with connected devices, as well as both Chromebooks and iPads for students with disabilities). The other petitioner is seeking the additional costs associated with connected devices that are compatible with software used in a specialty academic program focused on career preparation. See Health Science High & Middle College Waiver Request at 2 (requesting a waiver of the $400 cap to fund MacBooks compatible with the hardware and software used in a schoolwide specialized Health Sciences academic program). In addition to finding that these requests would violate the Commission’s rules regarding eligible equipment See 47 CFR § 54.1702; see also Emergency Connectivity Fund Report and Order, 26 FCC Rcd at 8785, Appendix B (citing non-connected accessories as an ineligible cost). and per-user limitations, See 47 CFR § 54.1706(c); see also Emergency Connectivity Fund Report and Order, 26 FCC Rcd at 8725, para. 54 (limiting schools and libraries to purchasing only one connected device per student, school staff member, or library patron). we conclude that the petitioners have not demonstrated that the remote learning needs of their students and school staff would otherwise not be met without these additional costs and equipment. Therefore, we deny the two requests of the petitioners listed in Appendix B because we find that they do not present any other circumstances justifying a waiver of sections 54.1702, 54.1706(c), or 54.1707(a) of the Commission’s rules. 10. We direct USAC to review the underlying applications listed in Appendices A and B consistent with this order. See Appendices A and B. In remanding these applications to USAC, we make no finding as to the ultimate eligibility of the petitioners’ applications. To ensure that the underlying applications are resolved expeditiously, we direct USAC to complete its review of the underlying applications and recommend a commitment, denial, or revised decision based on a complete review and analysis no later than 60 calendar days from the release date of this order. IV. ORDERING CLAUSES 11. ACCORDINGLY, IT IS ORDERED, pursuant to the authority contained in sections 1-4 and 254 of the Communications Act of 1934, as amended, 47 USC §§ 151-154 and 254, and sections 0.91, 0.291, and 1.3 of the Commission’s rules, 47 CFR §§ 0.91, 0.291, and 1.3, that section 47 CFR 54.1707(a) of the Commission’s rules IS WAIVED for the petitioners listed in Appendix A to the extent provided herein. 12. IT IS FURTHER ORDERED, pursuant to the authority contained in sections 1-4 and 254 of the Communications Act of 1934, as amended, 47 USC §§ 151-154 and 254, and sections 0.91, 0.291, and 1.3 of the Commission’s rules, 47 CFR §§ 0.91, 0.291, and 1.3, that the requests for waiver filed by the petitioners listed in Appendix B ARE DENIED. 13. IT IS FURTHER ORDERED, that pursuant to section 1.102(b)(1) of the Commission’s rules, 47 CFR § 1.102(b)(1), this Order SHALL BE EFFECTIVE upon release. FEDERAL COMMUNICATIONS COMMISSION Kris A. Monteith Chief Wireline Competition Bureau 2 APPENDIX A Waiver Requests Granted Petitioner Application Number(s) Date Request(s) for Waiver Filed Fresno Unified School District ECF202108943 ECF202111965 September 20, 2021 (filed two requests) St. Francis School for the Deaf ECF202106009 September 13, 2021 Arizona Schools for the Deaf and the Blind ECF202100525 September 10, 2021 NYSARC Inc, New York City Chapter, AHRC New York City ECF202115617 September 9, 2021 2 APPENDIX B Waiver Requests Denied Petitioner Application Number(s) Date Request for Waiver Filed Bay Area Technology School ECF222116200 ECF202115400 October 7, 2021 Health Science High & Middle College ECF202101275 September 1, 2021