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Midlothian School District 143, Midlothian, IL

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Released: June 21, 2013

Federal Communications Commission

DA 13-1422

Before the

Federal Communications Commission

Washington, DC 20554

In the Matter of
)
)
Request for Review of a
)
Decision of the
)
Universal Service Administrator by
)
)
Midlothian School District 143
)
File No. SLD- 861813
Midlothian, IL
)
)
Schools and Libraries Universal Service
)
CC Docket No. 02-6
Support Mechanism
)

ORDER

Adopted: June 21, 2013

Released: June 21, 2013

By the Chief, Telecommunications Access Policy Division, Wireline Competition Bureau:
1.
Consistent with precedent,1 we grant a request from Midlothian School District 143
(Midlothian)2 seeking review of a decision 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 its decision, USAC determined that Midlothian violated the Commission's
competitive bidding rules because its vendor selection documentation did not clearly establish that price
was the primary factor in its vendor selection process.4
2.
Upon review of the record, we agree with USAC's determination that Midlothian's vendor
selection documentation did not clearly demonstrate that price was given the highest weight or value


1 See Request for Review of the Decision of the Universal Service Administrator by Allendale County School District
et al.; Schools and Libraries Universal Service Support Mechanism
, CC Docket No. 02-6, Order, 26 FCC Rcd 6109,
6115-17, paras. 10-12 (Wireline Comp. Bur. 2011) (Allendale County Order) (finding that, among other things, a
waiver of the Commission's rules, which require applicants to use price as the primary factor in the vendor selection
process, is in the public interest when the applicant ultimately selected the least expensive bid); Requests for Review
of the Decisions of the Universal Service Administrator by Euclid City School District and Shannon County School
District; Schools and Libraries Universal Service Support Mechanism
, CC Docket No. 02-6, Order, 27 FCC Rcd
14169, 14170-71, para. 2 (Wireline Comp. Bur. 2012) (finding that a waiver of the Commission's rules, which
require applicants to use price as the primary factor in the vendor selection process, is in the public interest when the
applicant ultimately selected the least expensive bid).
2 See Letter from Angela Crotty, Midlothian School District 143, to Marlene H. Dortch, Secretary, Federal
Communications Commission, CC Docket No. 02-6 (filed Mar. 7, 2013) (Request for Review) (regarding funding
year 2012 FCC Form 471 application number 861813 (funding request number (FRN) 2347179)).
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 E-mail from USAC, Schools and Libraries Division, to Angela Crotty, Midlothian School District 143 (dated
Feb. 11, 2013) (regarding funding year 2012 FCC Form 471 application number 861813 (FRN 2347179)); see also
47 C.F.R. 54.503, 54.511 (requiring applicants to use price as the primary factor in the vendor selection process).

Federal Communications Commission

DA 13-1422

during the bid evaluation process.5 However, the record shows that Midlothian selected the lowest priced
bid for the funding request at issue.6 Given that Midlothian ultimately selected the least expensive service
offering, despite the ambiguity as to whether it assigned the highest weight or value to price in its vendor
evaluation process, we find that the outcome of Midlothian's vendor selection process was consistent with
the policy goals underlying the Commission's competitive bidding rules.7 Therefore, we find that it is in
the public interest to waive sections 54.503 and 54.511 of the Commission's rules,8 which require
applicants to use price as the primary factor in the vendor selection process, with respect to the funding
request identified herein.9 This finding is consistent with precedent finding good cause for waivers in
comparable circumstances.10 Further, at this time, there is no evidence of waste, fraud and abuse in the
record.
3.
We therefore remand the underlying application to USAC for further action consistent with
this order. To ensure that the underlying application is resolved expeditiously, we direct USAC to
complete its review of the application and issue an award or a denial based on a complete review and
analysis no later than 90 calendar days from the release date of this order. In remanding this application
to USAC, we make no finding as to the ultimate eligibility of the services or the underlying application.
4.
Lastly, on our own motion, we waive section 54.507(d) of the Commission's rules and
applicable USAC procedural deadlines, such as the invoicing deadline, that are necessary to effectuate our
ruling.11 We find good cause to waive section 54.507(d) and applicable USAC procedural deadlines
because filing an appeal is likely to cause the petitioner to miss the program's subsequent procedural
deadlines in that funding year.
5.
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


5 Midlothian prepared two vendor evaluation matrices for the funding request at issue. See Request for Review.
According to the first evaluation matrix, "total cost" was weighted at 100 percent, while the remaining two
evaluation factors, "number of units" and "pooled minutes," were each given a weight of zero. Id. The second
evaluation matrix shows that two of the four evaluation factors considered, "39 minute units" and "1200 pooled
minutes," were each assigned a point value of 15 points, and the remaining factors, "walkie-talkie capability" and
"price," were each assigned a point value of 35 points. Id.
6 See id.
7 See 47 C.F.R. 54.503, 54.511; Allendale County Order, 26 FCC Rcd at 6115, para. 10 (finding that the
applicant satisfied the policy goals underlying the Commission's competitive bidding rules when it selected the least
expensive responsive bid, even though it did not assign the highest weight to the price category in the bid evaluation
process).
8 See 47 C.F.R. 54.503, 54.511. 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.
9 See 47 C.F.R. 54.503, 54.511.
10 See supra n.1.
11 47 C.F.R. 54.507(d) (requiring non-recurring services to be implemented by September 30 following the close
of the funding year).
2

Federal Communications Commission

DA 13-1422

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 Request for Review filed by Midlothian School District 143 IS GRANTED and the underlying
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
sections 54.503, 54.507(d) and 54.511 of the Commission's rules, 47 C.F.R. 54.503, 54.507(d) and
54.511, ARE WAIVED for Midlothian School District 143 to the limited extent provided herein.
FEDERAL COMMUNICATIONS COMMISSION
Kimberly A. Scardino
Chief
Telecommunications Access Policy Division
Wireline Competition Bureau
3

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