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Resolution of Waiver Requests and Petitions for Reconsideration for 33

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Released: April 16, 2013

Federal Communications Commission

DA 13-238

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
)
)
Ashtabula Area City Schools
)
File Nos. SLD-831006 et al.
Ashtabula, Ohio et al.
)
)
Schools and Libraries Universal Service
)
CC Docket No. 02-6
Support Mechanism
)

ORDER

Adopted: April 16, 2013


Released: April 16, 2013

By the Chief, Telecommunications Access Policy Division, Wireline Competition Bureau:
1.
Consistent with precedent,1 we address requests from petitioners seeking review of 23
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 three petitions
for reconsideration of decisions of the Wireline Competition Bureau (Bureau) concerning nine
applicants.3 The petitioners are seeking waivers of the FCC Form 471 application filing window deadline
under the E-rate program.4 We grant 19 of the requests for review and two of the petitions for
reconsideration, deny four requests for review, and dismiss one request for reconsideration.5


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,
File Nos. SLD-487009 et al., CC
Docket No. 02-6, Order, 25 FCC Rcd 9256, 9259-60, paras. 8 & 9 (2010) (Academy of Math and Science Order)
(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; or filed their FCC Forms 471 on
time, but failed to timely file their certifications); Requests for Waiver and Review of Decisions of the Universal
Service Administrator by Anderson Elementary School et al.; Schools and Libraries Universal Service Support
Mechanism
, File Nos. SLD-789495 et al., CC Docket No. 02-6, Order, 27 FCC Rcd 5319, 5319-20, para. 2
(Wireline Comp. Bur. 2012) (treating late-filed item 21 attachments like late-filed certifications); Requests for
Waiver of Decisions of the Universal Service Administrator by Academy for Academic Excellence et al.; Schools
and Libraries Universal Service Support Mechanism,
File Nos. SLD-539076 et al., 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 subject to technical problems interfacing with USAC’s computer system).
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).
4 The requests for waiver and review are listed in Appendices A-C, and E. The applications at issue in the petitions
for reconsideration are listed in Appendices D and F. 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
(continued…)

Federal Communications Commission

DA 13-238

2.
Based on the facts and circumstances of these specific cases, we find that good cause exists
to grant the appeals of the 19 applicants listed in Appendices A-C.6 We grant the three appeals listed in
Appendix A because we find that the applications were filed within the filing window.7 We grant the two
waiver requests listed in Appendix B because those petitioners’ applications were filed within 14 days of
the close of the filing window.8 We grant the 14 waiver requests listed in Appendix C because each of
those petitioners’ applications was submitted on time but for their certifications or item 21 attachments.9
We also grant two petitions for reconsideration concerning the eight applicants listed in Appendix D
because, on reconsideration of the record, we have determined that each of those petitioners’ applications
was submitted 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 of the filing window’s close, despite a technical problem
interfacing with USAC’s computer system.10
3.
Consistent with precedent,11 we also waive section 54.720(a) of the Commission’s rules,
which requires applicants to seek review of a USAC decision within 60 days, for Cedar Ridge School
District, Elk Hill Farm School, and St. Mary of the Assumption School, which submitted their appeals to
the Commission or USAC within a reasonable period of time after receiving actual notice of adverse
earlier decisions by USAC.12
4.
We deny the four appeals listed in Appendix E because we find that those petitioners have
failed to present special circumstances justifying waivers of the Commission’s rules.13 We also dismiss
(Continued from previous page)


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.
5 See Appendices A-F.
6 See Appendices A, B, and C. 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.
10 See Appendix D. 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 two petitions for reconsideration have raised facts demonstrating that a
waiver of our rules is warranted. 47 C.F.R. § 1.106(c)(2).
11 Requests 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, 26 FCC Rcd 16903, 16905, para. 4 (Wireline Comp. Bur. 2011) (granting
petitioners waivers of the Commission’s filing deadline for appeals because they submitted their appeals to the
Commission within a reasonable period of time after receiving actual notice of USAC's adverse decision).
12 47 C.F.R. § 54.720(a).
13 See Appendix E; 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).
2

Federal Communications Commission

DA 13-238

the petition for reconsideration listed in Appendix F because it fails to identify any material error,
omission, or reason warranting reconsideration and relies on arguments that have been fully considered
and rejected by the Bureau within the same proceeding.14
5.
At this time, we find no evidence of waste, fraud or 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 D 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 or as to the petitioners’ compliance or non-compliance with any other E-rate program rules.
6.
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 and/or waiver filed by the petitioners listed in Appendices A through C ARE
GRANTED and their underlying applications ARE REMANDED to USAC for further consideration in
accordance with the terms of this order.
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, 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 petitions for reconsideration filed concerning the applications listed in Appendix D
ARE GRANTED and the applications ARE REMANDED to USAC for further consideration in
accordance with the terms of this order.
8.
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 1.3 of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291, and 1.3, that section 54.720(a) of the
Commission’s rules, 47 C.F.R. § 54.720(a), IS WAIVED for Cedar Ridge School District, Elk Hill Farm
School, and St. Mary of the Assumption School.
9.
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 applications
listed in Appendices B through D to the limited extent provided herein.
10.
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 and/or waiver filed by the petitioners listed in Appendix E ARE DENIED.


14 See Appendix F; 47 C.F.R § l.l06(p)(1), (3).
3

Federal Communications Commission

DA 13-238

11.
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 by the petitioner listed in Appendix F IS
DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Kimberly A. Scardino
Chief
Telecommunications Access Policy Division
Wireline Competition Bureau
4

Federal Communications Commission

DA 13-238

APPENDIX A

Requests Granted

FCC Form 471 Applications Filed Within the Filing Window

Petitioner

Application

Funding

Date Request for

Number

Year

Review/Waiver

Filed

Charles Churn Christian Academy
857884
2012
Dec. 26, 2012
Syracuse, NY
Laramie County School District 2
834646
2012
Dec. 26, 2012
Syracuse, NY
Team Success School of Excellence
871450
2012
Dec. 26, 2012
Bradenton, FL

APPENDIX B

Requests Granted

FCC Form 471 Applications Filed Within 14 Days of the Close of the Filing Window

Petitioner

Application

Funding

Date Request for

Number

Year

Review/Waiver

Filed

Central A & M School District 21
875648
2012
Dec. 27, 2012
Assumption, IL
George Washington Carver Academy
875224
2012
Jan. 15, 2013
Highland Park, MI

APPENDIX C

Requests Granted

Waivers Granted for Other Special Circumstances

Petitioner

Application

Funding

Date Request for

Number

Year

Review/Waiver

Filed

Ashtabula Area City Schools
831006
2012
Jan. 8, 2013
Ashtabula, OH
Camas School District 117
873941
2012
Jan. 22, 2013
Camas, WA
Cedar Ridge School District
859386
2012
Jan. 18, 2013
Newark, AR
Douglas County School District 15
855912
2012
Feb. 5, 2013
Days Creek, OR
Elk Hill Farm School
835717
2012
Jan. 29, 2013
Goochland, VA
Hereford Independent School District
870486
2012
Jan. 14, 2013
Hereford, TX
Hodgen Elementary School
870499
2012
Dec. 20, 2012
Hodgen, OK
5

Federal Communications Commission

DA 13-238

Petitioner

Application

Funding

Date Request for

Number

Year

Review/Waiver

Filed

Lewis & Clark Public Library
825092
2012
Dec. 26, 2012
Helena, MT
Our Lady – Mt. Carmel West School
875013
2012
Jan. 28, 2013
Cleveland, OH
Penelope Independent School District
799090
2011
Jan. 15, 2013
Penelope, TX
St. Mary of the Assumption School
875680
2012
Feb. 8, 2013
Upper Marlboro, MD
Seven Hills Charter Public School
871635
2012
Jan. 4, 2013
Worcester, MA
Trenton Special School District
873251
2012
Dec. 21, 2012
Trenton, TN
Wellston Independent School District 4
868268
2012
Dec. 31, 2012
Wellston, OK

APPENDIX D

Petitions for Reconsideration Granted

Applicant

Application

Funding

Date Request for

Number(s)

Year

Reconsideration

Filed

Beach Cities Chabad
875306, 875308
2012
Jan. 10, 2013
Redondo Beach, CA
Chaya Mushka Children’s House
875303, 875304
2012
Jan. 10, 2013
Sandy Springs, GA
Cheder at the Ohel – New Campus
875292, 875300,
2012
Jan. 10, 2013
Valley Stream, NY
875301
East Haven Public Schools
876867, 832870
2012
Dec. 20, 2012
East Haven, CT
Emek Hebrew Academy
875140, 875361
2012
Jan. 10, 2013
Sherman Oaks, CA
Torah Academy – Lawrence Cedarhurst
High School
875362, 875363
2012
Jan. 10, 2013
Cedarhurst, NY
USA Outreach
875357, 875358
2012
Jan. 10, 2013
Valley Village, CA
Yeshiva Rabbi Samson Raphael Hirsch
875350, 875359,
2012
Jan. 10, 2013
School
875360
New York, NY
6

Federal Communications Commission

DA 13-238

APPENDIX E

Requests Denied

Petitioner

Application

Funding

Date Request for

Number

Year

Review/Waiver

Filed

Evanston Township High School
818705
2011
Dec. 17, 2012
Evanston, IL
877987
2012
Mary Queen of Heaven School
876167
2012
Jan. 3, 2013
Brooklyn, NY
St. Edward School
843801
2012
Dec. 21, 2012
Chillicothe, IL
Watson Chapel School District
877867
2012
Feb. 7, 2013
Pine Bluff, AR

APPENDIX F

Petition for Reconsideration Dismissed

Petitioner

Application

Funding

Date Request for

Number

Year

Reconsideration

Filed

Oregon Howell School District R-3
876827
2012
Dec. 21, 2012
Koshkonong, MO
7

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