**Before the**

**Federal Communications Commission**

**Washington, DC 20554**

In the Matter of )

)

Request for Review )

)

Sacred Heart School ) File No. SLD-346248

Mount Holly, New Jersey )

)

Schools and Libraries Universal Service ) CC Docket No. 02-6

Support Mechanism )

**order**

**Adopted: April 21, 2005 Released: April 22, 2005**

By the Telecommunications Access Policy Division, Wireline Competition
Bureau:

1.  The Telecommunications Access Policy Division has under
    consideration a Request for Review filed by Sacred Heart School,
    Mount Holly, New Jersey (Sacred Heart).[^1] Sacred Heart seeks
    review of a decision by the Schools and Libraries Division (SLD) of
    the Universal Service Administrative Company (Administrator) denying
    Sacred Heart's Funding Year 2003 application for discounted services
    under the schools and libraries universal service support mechanism
    on the ground that Sacred Heart violated the Commission's
    competitive bidding requirements.[^2] For the reasons set forth
    below, we deny Sacred Heart's Request for Review and affirm SLD's
    denial of Sacred Heart's application.

2.  Under the schools and libraries universal service support mechanism,
    eligible schools, libraries, and consortia that include eligible
    schools and libraries, may apply for discounts for eligible
    telecommunications services, Internet access, and internal
    connections.[^3] The Commission's rules provide that, with limited
    exceptions for existing, binding contracts, an eligible school,
    library, or consortium that includes eligible schools or libraries
    must seek competitive bids for all services eligible for
    support.[^4] In accordance with the Commission's rules, an applicant
    must file with SLD, for posting to its website, an FCC Form 470
    requesting services.[^5] The applicant must wait 28 days before
    entering into an agreement with a service provider for the requested
    services and submitting an FCC Form 471 requesting support for the
    services ordered by the applicant.[^6] Once an applicant submits an
    FCC Form 470 and complies with the 28-day posting period, the
    applicant may enter into a long term contract at that time and,
    having complied with the competitive bidding requirements prior to
    entering into the service contract, need not submit any additional
    FCC Form 470s for the duration of that contract.[^7]

3.  As noted above, the Commission's rules provide that eligible schools
    and libraries with existing contracts are exempt from the
    competitive bidding requirements under certain circumstances.
    Specifically, under section 54.511(c)(1), contracts signed on or
    prior to July 10, 1997 are exempt from competitive bidding
    requirements for the duration of the contract.[^8] Contracts signed
    after July 10, 1997 and before January 30, 1998 are exempt from
    competitive bidding requirements for services provided through the
    end of Funding Year 1998, regardless of the duration of the contract
    as a whole.[^9]

4.  In the instant case, Sacred Heart entered into a five-year agreement
    with Voicenet for the provision of Internet access on July 1,
    2000.[^10] Two years later, Sacred Heart entered into a new contract
    with Voicenet to reflect a change in the transmission rate of the
    underlying services.[^11] In Funding Year 2003, Sacred Heart
    submitted its FCC Form 471 application for the services at issue and
    referenced FCC Form 470 \# 786180000179261 as the supporting Form
    470.[^12] Because Sacred Heart checked Item 10 in Block 3 of the
    Form, indicating that it sought support only for services provided
    pursuant to an existing, binding contract signed on or before July
    10, 1997, SLD did not post this Form 470 to SLD\'s website.[^13]

5.  On December 11, 2003, the Administrator denied Sacred Heart's
    funding request on the ground that Sacred Heart's Form 470 was not
    posted on SLD's website for 28 days prior to Sacred Heart signing a
    contract for services.[^14] In response, Sacred Heart argues that
    the July 2002 contract was not actually a "new contract," but was
    rather an "overlap" with the previous contract, and therefore, a new
    Form 470 did not need to be posted for the services at issue.[^15]

6.  Upon review of the record, we conclude that SLD correctly denied
    Sacred Heart's request for support. We find that the July 2002
    contract is a new contract for services because it replaces the
    contract executed in July 2000.[^16] In fact, the July 2002 contract
    clearly states that the original contract would be "cancelled upon
    execution of the new contract."[^17] As such, we conclude that
    Sacred Heart was required to file, for posting to SLD's website, a
    Form 470 presenting the services described in the July 2002 contract
    for competitive bidding.

7.  In addition, a contract awarded in July 2000 does not qualify as a
    pre-existing contract under the Commission's rules, because
    exceptions to the competitive bidding regulations only apply to
    contracts entered into prior to January 30, 1998.[^18] We note that
    by checking Item 10 in Block 3 of the Form 470, Sacred Heart
    erroneously indicated that the requested services were not subject
    to competitive bidding because Sacred Heart had an existing, binding
    contract that was entered into on or before July 10, 1997.[^19] SLD
    therefore did not post those services on its website for competitive
    bidding. Because the services described in the July 2002 contract
    were never posted for bidding, Sacred Heart's Funding Year 2003
    application did not satisfy the Commission's competitive bidding
    requirements. Accordingly, we deny Sacred Heart's Request for
    Review.

8.  With regard to assertions that the applicants were misinformed by
    SLD, we have consistently held that where a party receives erroneous
    advice, the government is not estopped from enforcing its rules in a
    manner that is inconsistent with the advice provided by the
    employee, particularly when relief is contrary to a rule.[^20] In
    light of the thousands of applications that SLD reviews and
    processes each year, it is administratively necessary to place on
    the applicant the ultimate responsibility of complying with all
    relevant rules and procedures.[^21]

9.  ACCORDINGLY, IT IS ORDERED, pursuant to authority delegated under
    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 Request for Review
    filed by Sacred Heart School, Mount Holly, New Jersey, on February
    5, 2004, IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Vickie S. Robinson

> Deputy Chief
>
> Telecommunications Access Policy Division
>
> Wireline Competition Bureau

[^1]: Letter from Ronald J. Maniglia, Sacred Heart School, to Federal
    Communications Commission, filed February 5, 2004 (Request for
    Review). Section 54.719(c) of the Commission's rules provides that
    any person aggrieved by an action taken by a division of the
    Administrator may seek review from the Commission. 47 C.F.R.
    54.719(c).

[^2]: Letter from Schools and Libraries Division, Universal Service
    Administrative Company, to Ronald J. Maniglia, Sacred Heart School,
    dated December 11, 2003 (Administrator's Decision on Appeal).

[^3]: [47 C.F.R. §§
    54.502](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS54.502&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02),
    [54.503](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS54.503&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02).

[^4]: [47 C.F.R. §§
    54.504](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS54.504&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02),
    [54.511(c)](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS54.511&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02).

[^5]: *See* Schools and Libraries Universal Service, Description of
    Services Requested and Certification Form, OMB 3060-0806 (September
    1999) (FCC Form 470).

[^6]: [47 C.F.R. §
    54.504(c)](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS54.504&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02);
    *see* *also* Schools and Libraries Universal Service, Services
    Ordered and Certification Form, OMB 3060-0806 (September 1999) (FCC
    Form 471).

[^7]: *Federal-State Joint Board on Universal Service*, CC Docket No.
    96-45, Order, [15 FCC Rcd 6732
    (1999)](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1999288658&FindType=Y&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02)
    ("We conclude that permitting a school or library to commit to a
    long-term contract after participating in the competitive bidding
    process does not compromise the benefits derived from competition.
    As long as all providers have had the opportunity to compete for the
    same contract, schools or libraries can enter into renewable
    contracts of any length or form, as permitted by state law.")

[^8]: [47 C.F.R. §
    54.511(c)(1)](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS54.511&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02).

[^9]: [47 C.F.R. §§
    54.511(c)(1)](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS54.511&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02),
    [54.511(d)](http://web2.westlaw.com/find/default.wl?DB=1000547&DocName=47CFRS54.511&FindType=L&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02).
    *See* *Federal-State Joint Board on Universal Service, Access Charge
    Reform, Price Cap Performance Review for Local Exchange Carriers,
    Transport Rate Structure and Pricing, End User Common Line Charge*,
    CC Docket Nos. 96-45, 96-262, 94-1, 91-213, and 95-72, Fourth Order
    on Reconsideration in CC Docket No. 96-45, Report and Order in [CC
    Docket Nos. 96-45, 96-262, 94-1, 91-213, 95-72, 13 FCC Rcd 2372
    (1997)](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1997265516&FindType=Y&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02);
    *Federal-State Joint Board on Universal Service*, CC Docket No.
    96-45, Fifth Order on Reconsideration and Fourth Report and Order,
    13 FCC Rcd 14915 (1998); Federal-State Joint Board on Universal
    Service, CC Docket No. 96-45, Tenth Order on Reconsideration, [14
    FCC Rcd 5983
    (1999)](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=1999286225&FindType=Y&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02).

[^10]: Request for Review at Attachment 1.

[^11]: Request for Review at Attachment 1.

[^12]: *See* FCC Form 471, Sacred Heart School, filed January 3, 2002;
    FCC Form 470, Sacred Heart School, filed February 5, 1999 (Sacred
    Heart Form 470 #786180000179261).

[^13]: Item 10, Block 3 of the Form 470 provides that a contract signed
    on or before July 10, 1997 and reported on a Form 470 in a previous
    year as an existing contract does not require a filing of a Form
    470. *See* Schools and Libraries Universal Service, Description of
    Services Requested and Certification Form, OMB 3060-0806 (September
    1999).

[^14]: Administrator's Decision on Appeal.

[^15]: Request for Review at Attachment 1.

[^16]: *See* Administrator's Decision on Appeal; Request for Review at
    Attachment 1.

[^17]: Request for Review at Attachment 1.

[^18]: *See supra*, para. 3 (noting that a pre-existing contract is
    limited to those contracts signed between July 10, 1997 and January
    30, 1998).

[^19]: Sacred Heart FCC Form 470 \# 786180000179261, Item 10. *See also
    supra* n.13.

[^20]: *See Request for Waiver by Lombard School District 44*,
    *Federal-State Joint Board on Universal Service, Changes to the
    Board of Directors of the National Exchange Carrier Association,
    Inc*., File No. SLD-109411, CC Docket Nos. 96-45 and 97-21, Order,
    14 FCC Rcd 13166 (Com. Car. Bur. 1999).

[^21]: *See* *Request for Review by Anderson School, Federal-State Joint
    Board on Universal Service, Changes to the Board of Directors of the
    National Exchange Carrier Association*, File No. SLD-13364, CC
    Docket Nos. 96-45 and 97-21, Order, [15 FCC Rcd 25610 (Com. Car.
    Bur.
    2000)](http://web2.westlaw.com/find/default.wl?DB=4493&SerialNum=2000616421&FindType=Y&AP=&mt=Westlaw&fn=_top&sv=Split&vr=2.0&rs=WLW5.02).