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Academy of Excellence, Phoenix AZ

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Released: May 16, 2012

Federal Communications Commission

DA 12-753

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
)
)
Academy of Excellence
)
File Nos. SLD-523299, et al.
Phoenix, Arizona, et al.
)
)
Schools and Libraries Universal Service
)
CC Docket No. 02-6
Support Mechanism
)

ORDER

Adopted: May 16, 2012

Released: May 16, 2012

By the Chief, Telecommunications Access Policy Division, Wireline Competition Bureau:
1.
Consistent with precedent,1 we grant 15 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 In each decision,
USAC found that the applicants violated the E-rate program technology plan rules.4 Based on our review


1 See Requests for Review or Waiver of the Decisions of the Universal Service Administrator by Brownsville
Independent School District, et al.
, File Nos. SLD-482620, et al., CC Docket No. 02-6, Order, 22 FCC Rcd 6045
(2007) (waiving the technology plan rules for petitioners that, among other things, (1) did not develop a technology
plan because they sought discounts only for telecommunications or because they believed that a technology plan
was not required for what they believed to be basic voice service; (2) failed to show, in response to inquiries by
USAC, that they had an approved technology plan in place for the relevant funding year, or that the plan was in the
process of being approved; or (3) based their funding applications on approved technology plans from prior years
while they updated those plans) (Brownsville Order); see also Requests for Review and Waiver of Decisions of the
Universal Service Administrator by Al-Ishan Academy, et al.
, File Nos. SLD-535827, et al., CC Docket No. 02-6,
Order, 25 FCC Rcd 17744 (Wireline Comp. Bur. 2010) (waiving the technology plan rules for petitioners applying
the standards of the Brownsville Order, for petitioners that did not create technology plans in accordance with E-rate
program rules yet in good faith planned for the implementation of new technology in their schools in accordance
with state, local, or other internal requirements, and remanding applications for petitioners that were denied funding
because their technology plans did not include a budget demonstrating funding sufficient to acquire other services
necessary to use the E-rate services they were requesting).
2 The requests for review are listed in the Appendix. This order pertains only to USAC’s decisions to not grant or to
rescind funding because of technology plan rule violations, unless stated otherwise herein, and does not bar USAC
from enforcing any other decisions or taking any other actions regarding these applicants. Petitioner CDCR-DJJ, for
example, did not appeal USAC’s determination that CDCR-DJJ received $1,386.00 in improper disbursements for
ineligible miscellaneous fees that were included during invoicing. Nor has Southern Westchester BOCES disputed
USAC’s determination that Southern Westchester BOCES received $9,100.36 in improper disbursements. We note
that Southern Westchester BOCES has repaid those funds.
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. §§ 54.503(c)(2)(iii)-(iv); 54.504(a)(1)(iv)-(v); and 54.508.

Federal Communications Commission

DA 12-753

of the record, we find that these petitioners have demonstrated that special circumstances exist to justify a
waiver of the E-rate program’s technology plan rules at sections 54.503, 54.504 and 54.508 of the
Commission’s rules.5 We also find that at this time, there is no evidence of waste, fraud or abuse in the
record.
2.
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.6 We find good cause to waive section 54.507(d) because filing an appeal of a denial of funding is
likely to cause petitioners to miss the program’s subsequent procedural deadlines in that funding year.7
Consistent with precedent,8 we also grant three petitioners9 waivers of the Commission’s filing deadline
for appeals.10


5 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.
6 47 C.F.R. § 54.507(d) (requiring non-recurring services to be implemented by September 30 following the close of
the funding year).
7 Where USAC moved the service start dates for applicants listed in the appendix based on a decision that a
technology plan was approved after the start of a funding year, we direct USAC to amend these applicants’ FCC
Forms 486 to move the service start dates back to the beginning of the funding year. For example, in the case of the
UNO (UNO) Network of Charter Schools, USAC moved UNO’s service start date to April 19, 2010, the approval
date of its technology plan. Because UNO is being granted a waiver of the technology plan rules, we direct USAC
to amend UNO’s FCC Form 486 to move the service start date back to the beginning of funding year 2009.
8 See, e.g., 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 filed their appeals a few days late or soon after they
received actual notice of the denial); Request for Review and/or Requests for Waiver of the Decisions of the
Universal Service Administrator by Animas School District 6, et al., Schools and Libraries Universal Service
Support Mechanism,
File Nos. SLD-427902, et al., CC Docket No. 02-6, Order, DA 11-2040, at para. 4 (released
Dec. 22, 2011) (granting waivers for late filed appeals because the applicant filed within a reasonable time of
receiving actual notice or because the appeal would not have been necessary, but for an error by USAC); Requests
for Review and/or Waiver of Decisions of the Universal Service Administrator by Albuquerque School District, et
al., Schools and Libraries Universal Service Support Mechanism
, File Nos. SLD-548427, et al., CC Docket No. 02-
6, Order, 26 FCC Rcd 5878 (Wireline Comp. Bur. 2011) (waiving the Commission’s filing deadline for appeals for
six applicants because the Bureau found that these applicants could not submit their appeals to the Commission in a
timely manner due to circumstances beyond their control or because the petitioners submitted its appeal to USAC
within a reasonable period of time after receiving actual notice of USAC’s adverse decision).
9 Altoona Public Library System (did not learn that it had not received funding and that USAC made an incorrect
determination about its technology plan until after the appeals deadline had expired); Southern Westchester BOCES
(never received correspondence and therefore was not aware of USAC’s intention to recover funds until after it
received the demand payment letter that arrived after the 60-day deadline for appeals); and Muhammad University
(filed its appeal one day late to USAC and two days late to the Commission).
10 See 47 C.F.R. § 54.720.
2

Federal Communications Commission

DA 12-753

3.
We therefore remand the underlying applications listed in the appendix 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 the appendix and issue an award or a
denial based on a complete review and analysis no later than 120 calendar days from the release date of
this order. In remanding these applications to USAC, we make no finding as to the ultimate eligibility of
the services or the petitioners’ applications. We direct USAC to discontinue recovery actions based on
the denials we reviewed in this order for those parties whose requests are addressed herein.11
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 the appendix 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
sections 54.503(c)(2)(iii)-(iv), 54.504(a)(1)(iv)-(v), 54.507(d), 54.508 and 54.720 of the Commission’s
rules, 47 C.F.R. §§ 54.503(c)(2)(iii)-(iv), 54.504(a)(1)(iv)-(v), 54.507(d), 54.508 and 54.720 ARE
WAIVED for the petitioners listed in the appendix to the limited extent provided herein.
FEDERAL COMMUNICATIONS COMMISSION
Trent Harkrader, Chief
Telecommunications Access Policy Division
Wireline Competition Bureau


11 USAC shall cease recovery actions against both the applicant and the service provider, unless otherwise provided
in this order.
3

Federal Communications Commission

DA 12-753

APPENDIX

Petitioner

Application

Funding

Date Request for

Number(s)

Year

Review/Waiver

Filed

Academy of Excellence
523299
2006
Nov. 8, 2010
Phoenix, Arizona
Alamogordo Public School District
529682; 534697
2006
Nov. 15, 2010
Alamogordo, New Mexico
Altoona Area Public Library
460862
2005
June 14, 2006
Altoona, Pennsylvania
Bishop Fenwick High School
494624
2006
May 16, 2011
Peabody, Massachusetts
Boston Public Library
558489; 558675;
2007
Mar. 25, 2011
Boston, Massachusetts
558737; 559648
CDCR-DJJ/California Education Authority
503157
2006
Jan. 24, 2011
Sacramento, California
Christ the King School
532076
2006
Dec. 6, 2010
Bronx, New York
Holy Name of Jesus School
473686
2005
Mar. 4, 2011
Los Angeles, California
Latham School
431113
2004
Nov. 9, 2010
Brewster, Massachusetts
Muhammad University
440016
2005
Sept. 22, 2009
Oakland, California
Navajo Nation Technology Consortium
428029, 432378
2004
Apr. 1, 2011
Ganado, Arizona
New Haven Public School District
504720
2006
Dec. 8, 2010
New Haven, Connecticut
Pickett-Center School District – 20
527126
2006
Mar. 23, 2011
Ada, Oklahoma
Southern Westchester BOCES
471962; 506595;
2005;
Feb. 16, 2011
Rye Brook, New York
510983; 512817
2006
UNO Network of Charter Schools
697006, 697203,
2009
Sept. 29, 2011
Chicago, Illinois
697223, 697204
4

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