Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Yakutat School District, Yakutat, Alaska

Download Options

Released: August 25, 2014
image01-00.jpg612x792

Federal Communications Commission

FCC 14-127

Before the

Federal Communications Commission

Washington, DC 20554

In the Matter of

)

)

Application for Review of a

)

Decision of the

)

Wireline Competition Bureau by

)

)

Yakutat School District

)

File No. SLD-822062

Yakutat, Alaska

)

)

Schools and Libraries Universal Service

)

CC Docket No. 02-6

Support Mechanism

)

ORDER

Adopted: August 22, 2014

Released: August 25, 2014

By the Commission:

1.

In this Order, we deny in part and dismiss in part an application for review filed by

Yakutat School District, Yakutat, Alaska (Yakutat) seeking review of a decision issued by the Wireline

Competition Bureau (Bureau) denying Yakutat’s request for a waiver of the deadline for filing its funding

year 2011 E-rate application, and of two subsequent Bureau orders denying Yakutat’s petitions for

reconsideration of its waiver request.1 We are sympathetic to the challenges faced by applicants in

complying with the administrative requirements of the E-rate program, and we have recently streamlined

the application process in an effort to address these issues.2 However, we recognize the importance to all

applicants of effective and efficient administration of the E-rate program, and consistency in enforcing the

deadline for filing E-rate applications is essential to the efficient operation of the program. Yakutat has

not demonstrated that granting a waiver of the E-rate application deadline would be in the public interest.

Therefore, for the reasons set forth in more detail below, we deny in part and dismiss in part Yakutat’s

Application for Review.

2.

Once a school or library has complied with the Commission’s competitive bidding

requirements and has entered into an agreement for eligible services, it must file an FCC Form 471

application to notify USAC of the services that have been ordered, the service providers with which the

applicant has entered into agreements, and an estimate of the funds needed to cover the discounts to be

1 Letter from Allen F. Clendaniel, Counsel for Yakutat School District, to the Office of the Secretary, Federal

Communications Commission, CC Docket No. 02-6 (filed Oct. 5, 2012) (Yakutat Application for Review). See

Requests for Waiver and Review of Decisions of the Universal Service Administrator by Beaver Area Memorial

Library et al., Schools and Libraries Universal Service Mechanism, CC Docket No. 02-6, Order, 26 FCC Rcd 10317

(Wireline Comp. Bur. 2011) (Beaver Area Memorial Library Order); Petitions for Reconsideration by Rockwood

School District and Yakutat School District, Schools and Libraries Universal Service Support Mechanism, CC

Docket 02-6, Order, 26 FCC Rcd 13004 (Wireline Comp. Bur. 2011) (First Order on Reconsideration); Petition for

Reconsideration by Yakutat School District, Schools and Libraries Universal Service Support Mechanism, CC

Docket 02-6, Order, 27 FCC Rcd 10868 (Wireline Comp. Bur. 2012) (Second Order on Reconsideration). The E-

rate program is more formally known as the schools and libraries universal service support program.

2 See Modernizing the E-rate Program for Schools and Libraries, WC Docket No. 13-184, Report and Order and

Further Notice of Proposed Rulemaking, FCC 14-99, paras. 187-264 (rel. July 23, 2014).

image02-00.jpg612x792

Federal Communications Commission

FCC 14-127

given for eligible services.3

Section 54.407(c) of the Commission’s rules provides that E-rate funds will

be 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.4 The Commission capped annual funding for the E-rate program at $2.25 billion (indexed for

inflation since funding year 2010).5 With only one exception in the last 15 years, yearly requests filed

within the window for E-rate funding have exceeded the amount of funding available.6 Therefore, USAC

routinely denies funding requests filed after the close of the filing window.

3.

The Commission has explained that the E-rate program’s procedural rules, including the

requirement that applicants file their FCC Forms 471 within the window, are vital to the efficient

operation of the E-rate program.7 To ensure that applicants are fully aware of the filing deadline, the

Commission instructed USAC to develop a targeted outreach program and educational efforts to inform

and enlighten applicants on the various application requirements, including the application and

certification deadlines.8 USAC publicizes the dates the filing window will open and close well in advance

and features that information prominently in its newsletters and on its website.9

4.

The Commission grants waivers of the FCC Form 471 filing deadline only in very limited

circumstances. For example, in the Academy of Math and Science Order, the Commission found that

waivers would be granted when applicants: (1) filed their FCC Form 471 applications within 14 days after

the FCC Form 471 filing window deadline; (2) filed their FCC Form 471 applications late because of an

illness of the E-rate staff person or the death of a member of his or her family; (3) filed their FCC Form

471 applications late due to delays caused by circumstances beyond their control; or (4) filed their FCC

Form 471 applications on time or within 14 days of the filing window deadline but failed to file their FCC

Forms 470 or 471 certifications on time.10 Acting on delegated authority, the Bureau has consistently

3 See 47 C.F.R. § 54.504(c).

4 See 47 C.F.R. § 54.507(c).

5 Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Report and Order, 12 FCC Rcd 8776,

9054, para. 529 (1997) (Universal Service First Report and Order) (subsequent history omitted); Schools and

Libraries Universal Service Support Mechanism, A National Broadband Plan for our Future, CC Docket No. 02-6,

GN Docket No. 09-51, Order, 25 FCC Rcd 18762, 18781, para. 36 (2010) (Sixth Report and Order) (indexing the E-

rate funding cap to inflation).

6 See Modernizing the E-rate Program for Schools and Libraries, WC Docket No. 13-184, Notice of Proposed

Rulemaking, FCC 13-100, para. 62 (rel. July 23, 2013). For funding year 2011, USAC was able to fund priority two

funding requests only for applicants entitled to discounts of 88% or more. Id. at para. 83; see also

http://www.usac.org/sl/tools/news-briefs/preview.aspx?id=440 (last visited Sept. 3, 2013).

7 See Request for Review of the Decision of the Universal Service Administrator by Bishop Perry Middle School et

al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-487170 et al., CC Docket No. 02-

6, Order, 21 FCC Rcd 5316, 5320, para. 9 (2006) (Bishop Perry Order).

8 Id. at 5327, para. 24.

9 See, e.g., USAC, FY 2011 Window Dates Set, Dec. 9, 2010, http://www.usac.org/sl/tools/news-

briefs/preview.aspx?id=336 (Funding Year 2011 FCC Form 471 Window Dates); USAC, Schools and Libraries

News Brief, Jan. 6, 2012, http://www.usac.org/sl/tools/news-briefs/preview.aspx?id=403 (noting that the application

filing window start and end dates).

10 Request for Review of the Decision 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, 9258, para. 4 (2010) (Academy of Math and Science Order).

2

image03-00.jpg612x792

Federal Communications Commission

FCC 14-127

granted or denied waiver requests seeking additional time to file an FCC Form 471 using the standards

laid out by the Commission in the Academy of Math and Science Order.11

5.

The E-rate application filing window for funding year 2011 opened on January 9, 2011

and closed on March 24, 2011.12 Yakutat filed its application on April 11, 2011, 18 days after the close of

the filing window.13 Yakutat immediately sought a waiver of the filing deadline from the Commission,14

even before USAC formally denied Yakutat’s application for filing its FCC Form 471 outside the funding

window.15 In its waiver request, the only justification Yakutat offered for its late filing was that it had

hired a new business manager in June 2010 who was unfamiliar with the E-rate filing requirements.16 On

July 27, 2011, the Bureau, acting on delegated authority, denied Yakutat’s request for waiver, finding that

Yakutat did not meet the waiver standard previously set forth by the Commission because Yakutat filed

its application more than 14 days after the close of the filing window and it did not present any special

circumstances to justify a waiver.17

6.

On September 4, 2011, Yakutat filed a petition for reconsideration.18 Under the

Commission’s rules, petitions for reconsideration must be filed within 30 days after the release of the

Bureau’s decision.19 Therefore, the Bureau dismissed Yakutat’s petition for reconsideration on the basis

that it was filed more than 30 days after the release of the order denying Yakutat’s waiver request.20

7.

On October 6, 2011, Yakutat filed a second petition for reconsideration that was nearly

identical to its previous filings.21 The Bureau has the authority to dismiss petitions for reconsideration

that plainly do not warrant consideration by the Commission.22 The Bureau, acting on delegated

11 See, e.g., Requests for Waiver and Review of Decisions of the Universal Service Administrator by Allenstown

Public Library et al., Schools and Libraries Universal Service Mechanism, CC Docket No. 02-6, Order, DA 13-

1701 (Wireline Comp. Bur. Aug. 2, 2013); Requests for Waiver and Review of Decisions of the Universal Service

Administrator by Academy of Accelerated Learning, Inc. et al., Schools and Libraries Universal Service Mechanism,

CC Docket No. 02-6, Order, 28 FCC Rcd 6947 (Wireline Comp. Bur. 2013); Requests for Waiver and Review of

Decisions of the Universal Service Administrator by Ashtabula Area City Schools et al., Schools and Libraries

Universal Service Mechanism, CC Docket No. 02-6, Order, 28 FCC Rcd 4051 (Wireline Comp. Bur. 2013);

Requests for Waiver and Review of Decisions of the Universal Service Administrator by A.C.E. Charter High School

et al., Schools and Libraries Universal Service Mechanism, CC Docket No. 02-6, Order, 27 FCC Rcd 15907

(Wireline Comp. Bur. 2012) (all orders finding special circumstances to grant waiver requests that met the Academy

of Math and Science Order standard and denying waiver requests that did not).

12 Funding Year 2011 FCC Form 471 Window Dates.

13 See Letter from USAC, Schools and Libraries Division, to Ricardo Tejeda, Yakutat School District (dated July 11,

2011) (FCC Form 471 Out of Window Letter).

14 Letter from Ricardo Tejeda, Business Manager, Yakutat School District, to the Office of the Secretary, Federal

Communications Commission, CC Docket No. 02-6 (filed April 12, 2011) (Request for Waiver).

15 FCC Form 471 Out of Window Letter.

16 Request for Waiver at 1.

17 Beaver Area Memorial Library Order, 26 FCC Rcd at 10323, Appendix D.

18 Letter from Rod Schug, Superintendent, Yakutat School District, to the Office of the Secretary, Federal

Communications Commission, CC Docket No. 02-6 (filed Sept. 4, 2011) (First Petition for Reconsideration).

19 47 C.F.R. § 1.106(f).

20 First Order on Reconsideration, 26 FCC Rcd at 13004, para. 2.

21 Letter from Rod Schug, Superintendent, Yakutat School District, to the Office of the Secretary, Federal

Communications Commission, CC Docket No. 02-6 (filed Oct. 6, 2011) (Second Petition for Reconsideration).

22 47 C.F.R. § 1.106(p); see also Amendment of Certain of the Commission’s Part 1 Rules of Practice and Procedure

and Part 0 Rules of Commission Organization, GC Docket No. 10-44, Report and Order, 26 FCC Rcd 1594, 1606-

(continued….)

3

image04-00.jpg612x792

Federal Communications Commission

FCC 14-127

authority, dismissed Yakutat’s second petition for reconsideration on the basis that it relied on arguments

that failed to identify any material error, omission, or reason warranting reconsideration and relied on

arguments that had been fully considered and rejected by the Commission within the same proceeding.23

On October 5, 2012, Yakutat filed the instant application for review, seeking full Commission review of

the Bureau’s previous decisions.24

8.

Denial. In its Application for Review, Yakutat acknowledges that it submitted its

application for E-rate funding 18 days after the filing window closed.25 Yakutat again explains missing

the E-rate application deadline because eight months before the deadline for filing the funding year 2011

E-rate application, Yakutat hired a new business manager who had no prior experience with or training on

the E-rate program and a heavy workload.26

Yakutat also argues in its Application for Review that the E-

rate application process is complicated and that the error in timely filing the FCC Form 471 is the type

addressed by the Commission in the 2006 Bishop Perry Order.27 Finally, Yakutat says that the denial of

E-rate funding will have an adverse financial impact on the school district.28 We find these arguments

unpersuasive. Yakutat’s explanation for why it failed to file its FCC Form 471 within the filing window

does not present such special circumstances warranting a waiver of the FCC Form 471 filing window

deadline.29 Specifically, we find that Yakutat filed its FCC Forms 471 more than 14 days after the FCC

Form 471 filing window deadline and did not miss the deadline due to staff illness or a death in the

family, nor does it allege that the late filing was due to other circumstances beyond its control.30 Instead,

Yakutat’s only justification for its late filing is that an inexperienced staff member was charged with E-

rate responsibilities. As such, Yakutat’s petition does not meet the waiver standards established by the

Commission for late-filed FCC Forms 471. Indeed, if ordinary difficulties associated with filing an FCC

Form 471 were grounds for a waiver, waiver could be warranted for every conceivable violation of the

filing deadline.31 We also find that Yakutat’s financial hardship argument fails to justify a waiver of our

rules.

We have consistently held that the assertion of financial need of the applicant and the detrimental

impact a denial of support will have on the students who make use of the services does not meet the

requirement of special circumstances that warrant a waiver of the Commission's rules.32

We therefore

(Continued from previous page)

07, paras. 27-28 (2011) (authorizing bureaus to dismiss petitions for reconsideration of Commission action that are

procedurally defective).

23 See 47 C.F.R § l.l06(p)(1), (3); Second Order on Reconsideration, 27 FCC Rcd at 10868-69, para. 1.

24 Yakutat Application for Review.

25 Id. at 2.

26 Id. at 2-3.

27 Bishop Perry Order, 21 FCC Rcd at 5316, para 1 (granting waivers to applicants who missed the FCC Form 471

filing window deadline due to various reasons).

28 Yakutat Application for Review at 2.

29 See Academy of Math and Science Order, 25 FCC Rcd at 9261-62, para.13.

30 Id.

31 See Bishop Perry Order, 21 FCC Rcd at 5320, para. 9 (cautioning that waivers “should not be read to mean that

applicants will not be required in the future to comply fully with our procedural rules, which are vital to the efficient

operation of the E-rate program”).

32 See, e.g., Application for Review of a Decision of the Wireline Competition Bureau by Mescalero Apache School,

Schools and Libraries Universal Support Mechanism, CC Docket No. 02-6, Order, 20 FCC Rcd 5848, 5850, para. 5

(2005); Request for Review by Northern Waters Library Service, Federal-State Joint Board on Universal Service,

Changes to the Board of Directors of the National Exchange Carrier Association, Inc., CC Docket Nos. 96-45 and

97-21, Order, 17 FCC Rcd 1756, para. 7 (Com. Car. Bur. 2002) (both orders noting that financial need does not meet

the requirement of special circumstances that warrant a waiver of the Commission's rules).

4

image05-00.jpg612x792

Federal Communications Commission

FCC 14-127

deny in part Yakutat’s Application for Review with respect to its arguments previously raised with and

denied by the Bureau.

9.

Dismissal. In its Application for Review, Yakutat also raises new arguments that it did

not raise in its previous filings. Specifically, Yakutat now argues that the 14-day waiver window cutoff is

arbitrary and unfairly harsh, especially to small rural school districts with limited resources.33 Yakutat

proposes that the Commission should grant waivers to small districts with less than 200 students which

file their FCC Form 471 late up to 28 days past the FCC Form 471 deadline.34 Also, while

acknowledging that its First Petition for Reconsideration was late-filed, Yakutat notes that the Bureau

waited to mail notice of the underlying decision until August 4, 2011, eight days after the decision was

released.35 The Commission’s rules specify that “[n]o application for review will be granted if it relies on

questions of fact or law upon which the designated authority has been afforded no opportunity to pass.”36

We therefore conclude that, because Yakutat did not afford the Bureau an opportunity to address the

arguments raised in its Application for Review, we will not consider those arguments at this stage of the

process.37 We therefore dismiss in part Yakutat’s Application for Review with respect to its new

arguments that it did not previously raise with the Bureau.

10.

Alternative Arguments Denial. As noted above, Yakutat makes two additional

arguments. As an alternative and independent basis for rejecting Yakutat’s request for waiver of the

Commission’s rules via dismissal of its Application for Review, we deny the request on the merits.

Yakutat argues that the Commission should grant waivers to small districts with fewer than 200 students

that file their FCC Form 471 late up to 28 days past the FCC Form 471 deadline.38 As the Commission

has observed, E-rate program procedural rules, including deadlines for form submissions, are vital to the

efficient operation of the E-rate program.39

Indeed, the Commission noted in Bishop Perry Order that its

decision to waive the FCC Form 471 deadline in certain cases was of a “limited nature.”40 Furthermore,

the Commission’s current waiver standard takes into consideration the hardships that small school

districts face.41 We find that the fact that a school district has fewer than 200 students, without other

special circumstances justifying a waiver, does not warrant extending FCC Form 471 waiver deadline to

28 days. We therefore decline to extend waivers of the FCC Form 471 deadline to school districts with

less than 200 students which file their forms up to 28 days past the FCC Form 471 deadline.

33 Application for Review at 4-5.

34 Id.

35 Id. at 3.

36 47 C.F.R. § 1.115(c). The note to section 1.115(c) states that “new questions of fact or law may be presented to

the designated authority in a petition for reconsideration.” Id.

37 Id.

38 Id. 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.

39 Bishop Perry Order, 21 FCC Rcd at 5320, 5327, para 9, 26.

40 Id. at 5327, para. 26.

41 Id. at 5323, para. 14 (finding good cause to waive the deadline for filing the FCC Form 471 in specific cases

because, among other things, the limited staffing resources “especially in small school districts”).

5

image06-00.jpg612x792

Federal Communications Commission

FCC 14-127

11.

Yakutat also argues, in the alternative, that its First Petition for Reconsideration should

have been considered timely because the Bureau waited eight days after the decision was released to mail

personal notice of the underlying decision.42 We find this argument unavailing. Under the

Communications Act of 1934, as amended (“Act”) and the Commission’s rules, any petition for

reconsideration must be filed within 30 days from the date upon which public notice is given of an action

or decision for which reconsideration is sought.43 The Commission’s rules provide that the date of public

notice of a non-rulemaking document is the date of the document’s release.44 Section 405 of the

Communications Act contains no requirement of personal notice and no provision for the delay of the 30-

day deadline. Thus, Section 405(a) “is entirely clear that the 30-day filing period runs ‘… from the date

upon which public notice is given.’”45 In the case at hand, public notice occurred when the Bureau

released its order to the public on July 27, 2011.46 Yakutat was required to file its petition for

reconsideration no later than August 26, 2011. Yakutat, however, filed its First Petition for

Reconsideration on September 4, 2011. Thus, Yakutat’s petition was filed after the filing deadline

established by statute and was properly dismissed by the Bureau.

12.

ACCORDINGLY, IT IS ORDERED, pursuant to section 1.115 of the Commission’s

rules, 47 C.F.R. § 1.115, that the Application for Review filed by Yakutat School District, Yakutat,

Alaska, on October 5, 2012, as to the arguments previously presented to the Bureau, IS DENIED, and, as

to arguments not previously presented to the Bureau, IS DISMISSED and, as an alternative and

independent basis, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

42 Application for Review at 3.

43 47 U.S.C. § 405(a) provides that a “petition for reconsideration must be filed within thirty days from the date upon

which public notice is given of the order, decision, report, or action complained of.” Section 1.106(f) of the

Commission’s rules implements section 405(a) and provides that the “petition for reconsideration and any

supplement thereto shall be filed within 30 days from the date of public notice of the final Commission action.” 47

C.F.R. § 1.106(f).

44 47 C.F.R. § 1.4(b)(2).

45 Gardner v. FCC, 530 F.2d 1086, 1091 (D.C. Cir. 1976) (quoting 47 U.S.C. § 405(a)); see also 47 C.F.R.

§ 1.106(f).

46 Copies of the order were placed on the press table at Commission headquarters and publicized the next day in the

Daily Digest.

See Federal Communications Commission Daily Digest, Texts, available at

https://transition.fcc.gov/Daily_Releases/Daily_Digest/2011/dd110728.html (last visited Dec. 11, 2013).

Commission rules provide that the date of public notice of a non-rulemaking document is the date of the document’s

release. 47 C.F.R. § 1.4(b)(2).

6

Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.