**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

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| In the Matter of                 | *  | File No. SLD-248549          |
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| Request for Waiver by            | ** | CC Docket No. 96-45          |
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| Edcouch-Elsa Independent School  | *  | CC Docket No. 97-21          |
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| Edcouch, Texas                   |    |                              |
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**ORDER**

**Adopted: September 22, 2003 Released: September 23, 2003**

By the Telecommunications Access Policy Division, Wireline Competition
Bureau:

1.  In this Order, the Telecommunications Access Policy Division
    (Division) grants Edcouch-Elsa Independent School District, Edcouch,
    Texas, a waiver of the September 30, 2002 deadline for installation
    of non-recurring services for schools and libraries receiving
    universal service funding for Funding Year 2001 of the program.[^1]
    Specifically, we find that Edcouch-Elsa Independent School District
    is entitled to a waiver of section 54.507(d) of the Commission's
    rules, which requires recipients under the schools and libraries
    universal service support mechanism to implement contracts or
    agreements with service providers for non-recurring services by
    September 30 following the close of the funding year.[^2] We grant
    Edcouch-Elsa Independent School District an extension of the
    September 30, 2002 deadline, to September 30, 2003. This waiver will
    provide Edcouch-Elsa Independent School District with sufficient
    time to install their Funding Year 2001 non-recurring services, and
    thereby fully utilize their universal service discounts.

2.  Edcouch-Elsa Independent School District filed its Request for
    Waiver with the Schools and Libraries Division (SLD) of the
    Universal Service Administrative Company (USAC) on November 1,
    2002.[^3] Edcouch-Elsa Independent School District requests a waiver
    of section 54.507(d) of the Commission's rules. Since SLD has no
    authority to waive Commission rules, SLD forwarded Edcouch-Elsa
    Independent School District's request to the Bureau for
    Consideration.[^4]

3.  Pursuant to section 54.507(d) of the Commission's rules, schools and
    libraries are required to implement non-recurring services by
    September 30, following the close of the funding year.[^5] Section
    54.507(d) of the Commission's rules also states that applicants will
    qualify for an extension of the implementation deadline for
    non-recurring services if they satisfy one of the following
    criteria: (1) applicants whose funding commitment decision letters
    are issued by the Administrator on or after March 1 of the funding
    year for which discounts are authorized; (2) applicants who receive
    service provider change authorizations or service substitution
    authorizations from the Administrator on or after March 1 of the
    funding year for which discounts are authorized; (3) applicants
    whose service providers are unable to complete implementation for
    reasons beyond the service provider's control; or (4) applicants
    whose service providers are unwilling to complete installation
    because funding disbursements are delayed while the Administrator
    investigates their application for program compliance.[^6] With
    regard to criteria (4), applicants must certify to the Administrator
    that its service provider was unwilling to deliver or install
    non-recurring services before the expiration of the original
    non-recurring services installation deadline, because the
    Administrator had withheld payment for those services on a
    properly-submitted invoice for more than 60 days after the
    submission of the invoice.[^7] Applicants must make this
    certification on or before the original non-recurring services
    installation deadline. The revised implementation date will be
    calculated based on the date that the funds are released by the
    Administrator.

4.  In its Request for Waiver, Edcouch-Elsa Independent School District
    asserts that SLD held up funds while doing research to make a
    determination over the status of the funds, and as a result, Avnet
    was forced to stop work pending resolution of the issue. [^8]
    Consequently, Edcouch-Elsa Independent School District states that
    it did not have sufficient time to complete the installation project
    for which funding was committed.[^9] Further, Edcouch-Elsa
    Independent School District asks that it receive an extension of the
    non-recurring services deadline because USAC suspended disbursement
    of funds pending review for a potential funding commitment
    adjustment, or COMAD.[^10] Edcouch-Elsa Independent School District
    states that USAC did not complete its review until after September
    30, 2002, which prevented it from seeking an extension by the
    September 30, 2002 deadline.[^11]

5.  We conclude that Edcouch-Elsa Independent School District's request
    for an extension does not satisfy one of the four criteria for an
    automatic one-year extension under section 54.507(d)(1) -- (4) of
    the Commission's rules.[^12] Edcouch-Elsa Independent School
    District received its FCDL prior to March 1, 2002, and therefore
    pursuant to the Commission's rules, its original non-recurring
    services deadline was September 30, 2002. Due to an investigation by
    USAC, disbursement of funds for Edcouch-Elsa Independent School
    District were suspended.[^13] Because Edcouch-Elsa Independent
    School District did not certify on or before the original
    non-recurring deadline that its service provider was unwilling to
    deliver or install non-recurring services before the expiration of
    the deadline, we must treat Edcouch-Elsa Independent School
    District's request as a request for a waiver of section 54.507(d) of
    our rules.

6.  The Commission may waive any provision of its rules on its own
    motion and for good cause shown.[^14] A rule may be waived where the
    particular facts make strict compliance inconsistent with the public
    interest.[^15] In addition, the Commission may take into account
    considerations of hardship, equity, or more effective implementation
    of overall policy on an individual basis.[^16] In sum, waiver is
    appropriate if special circumstances warrant a deviation from the
    general rule, and such deviation would better serve the public
    interest than strict adherence to the general rule.[^17]

7.  We conclude that special circumstances exist to justify a waiver of
    section 54.507(d) of the Commission's rules as requested by
    Edcouch-Elsa Independent School District. Specifically, USAC did not
    complete its review of Edcouch-Elsa Independent School District's
    application until after the September 30, 2002 deadline, which
    prevented Edcouch-Elsa Independent School District from seeking an
    extension by the September 30, 2002 deadline. In this situation,
    requiring strict adherence to section 54.507(d) of the Commission's
    rules would impose an impractical and unreasonable hardship on
    Edcouch-Elsa Independent School District.

8.  We conclude, based on the record before us, that it would be
    consistent with the public interest and the intent of section 254 of
    the Communications Act to grant Edcouch-Elsa Independent School
    District's request and thus extend the deadline for installation of
    Funding Year 2001 non-recurring services for Edcouch-Elsa
    Independent School District by one year, to September 30, 2003. This
    is consistent with the Commission's finding in the *Non-Recurring
    Services Order* that external circumstances such as delayed funding
    decisions can create situations where deadlines are both impractical
    and unreasonable, as well as the Commission's and the Bureau's
    long-standing policy of ensuring that applicants for non-recurring
    services are not penalized for delays that are not within their
    control.[^18]

9.  Accordingly, IT IS ORDERED, pursuant to 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 U.S.C. §§ 0.91, 0.291, 1.3, and 54.722(a)
    that the request for waiver of section 54.507(d) of the Commission's
    rules, 47 C.F.R. § 54.507(d), filed by the Edcouch-Elsa Independent
    School District, Edcouch, Texas on November 1, 2002, IS GRANTED to
    the extent provided herein.

10. IT IS FURTHER ORDERED that the Funding Year 2001 deadline for
    installation of non-recurring services IS EXTENDED for the
    Edcouch-Elsa Independent School District, Edcouch, Texas, to
    September 30, 2003.

    FEDERAL COMMUNICATIONS COMMISSION

> Mark G. Seifert
>
> Deputy Chief, Telecommunications Access Policy Division
>
> Wireline Competition Bureau

[^1]: Electronic mail from Tracey Beaver, Schools and Libraries
    Division, Universal Service Administrative Company, to Mark Seifert,
    Federal Communications Commission, dated November 15, 2002,
    forwarding Letter from Mike Beeman, Edcouch-Elsa Independent School
    District, to Schools and Libraries Division, Universal Service
    Administrative Company, dated November 1, 2002 (Request for Waiver).
    *See* 47 C.F.R. § 1.3 (allowing the Commission to waive Commission
    rules on its own motion); *see also* 47 C.F.R. § 0.91 (delegating to
    the Wireline Competition Bureau the functions of the Commission
    except as reserved to the Commission under 47 C.F.R. § 0.291).

[^2]: *See* 47 C.F.R. § 54.507(d).

[^3]: Letter from Mike Beeman, Edcouch-Elsa Independent School District,
    to Schools and Libraries Division, Universal Service Administrative
    Company, dated November 1, 2002.

[^4]: Request for Waiver.

[^5]: 47 C.F.R § 54.507(d). Under the rule, schools and libraries
    receiving funding commitments for non-recurring services in Funding
    Year 2001 had until September 30, 2002 to implement these services.

[^6]: 47 C.F.R. § 54.507(d)(1) -- (4). The Commission noted in the
    *Non-Recurring Services Order* that if an applicant satisfies one of
    the four criteria, then March 1 will be the key date for calculating
    the extended deadline. If one of the conditions is satisfied before
    March 1 (of any year), the applicant will have until September 30 of
    the same year to complete implementation. If one of the conditions
    is satisfied after March 1, the applicant will have until September
    30 of the following year to complete implementation. *Federal-State
    Joint Board on Universal Service*, Report and Order, CC Docket No.
    96-45, 16 FCC Rcd 13510, 13513-13514 (2001) (*Non-Recurring Services
    Order)*.

[^7]: *See Non-Recurring Services Order*, 16 FCC Rcd 13514.

[^8]: Request for Waiver at 1.

[^9]: *Id*.

[^10]: *Id*.

[^11]: *Id*.

[^12]: 47 C.F.R. § 54.507(d)(1) -- (4).

[^13]: *See* Request for Waiver at 2-3.

[^14]: 47 C.F.R. §1.3.

[^15]: *Northeast Cellular Telephone Co. v. FCC*, 897 F.2d 1164, 1166
    (D.C. Cir. 1990) (*Northeast Cellular*).

[^16]: *WAIT Radio v. FCC*, 418 F.2d 1153, 1157, (D.C. Cir. 1969),
    affirmed by *WAIT Radio v. FCC*, 459 F.2d 1203 (D.C. Cir. 1972).

[^17]: *Northeast Cellular*, 897 F.2d at 1166.

[^18]: *Non-Recurring Services Order*, 16 FCC Rcd at 13512, para. 11.
    *See also Request for Waiver of the September 30, 2000 Deadline for
    Implementation of Non-Recurring Services by Baldwin County Board of
    Education, Federal-State Joint Board on Universal Service*, Order,
    CC Docket No. 96-45, DA No. 01-747, 16 FCC Rcd 7053 (Com. Car. Bur.
    2001).