**Before the**

**Federal Communications Commission**

**Washington, DC 20554**

In the Matter of )

)

Request for Review of the )

Decision of the )

Universal Service Administrator by )

)

Dickenson County Public Schools ) File No. SLD-239477

Clintwood, Virginia )

)

Federal-State Joint Board on ) CC Docket No. 96-45

Universal Service )

)

Changes to the Board of Directors of the ) CC Docket No. 97-21

National Exchange Carrier Association, Inc. )

**order**

**Adopted: May 21, 2002 Released: May 22, 2002**

By the Telecommunications Access Policy Division, Wireline Competition
Bureau:

1.  Before the Telecommunications Access Policy Division (Division) is a
    Request for Review filed by Dickenson County Public Schools
    (Dickenson), Clintwood, Virginia.[^1] Dickenson seeks review of a
    decision issued by the Schools and Libraries Division (SLD) of the
    Universal Service Administrative Company (Administrator), denying
    requests for Funding Year 4 discounts under the schools and
    libraries universal service mechanism due to competitive bidding
    violations.[^2] For the reasons set forth below, we deny the Request
    for Review and affirm SLD's decision.

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 an eligible
    school, library, or consortium applying for funding must, in most
    cases, seek competitive bids for the products and services to be
    funded.[^4] To comply with this competitive bid requirement, the
    Commission's rules require that an applicant submit to the
    Administrator a completed FCC Form 470 in which the applicant lists
    the services for which it seeks discounts.[^5] The Administrator
    then posts the FCC Form 470 on its web site for all potential
    competing service providers to review.[^6]

3.  The FCC Form 470 describes the applicant's planned service
    requirements, as well as other information regarding the applicant
    and its competitive bidding process that may be relevant to the
    preparation of bids.[^7] The FCC Form 470 must be completed by the
    entity that will negotiate with prospective service providers and
    must be signed by the person authorized to order the requested
    services on behalf of the applicant.[^8] The signatory must make
    several certifications, under oath, relating to the eligibility of
    the applicant and the applicant's ability to make use of the
    services requested.[^9] The FCC Form 470 also requires that the
    applicant name a person whom prospective service providers may
    contact for additional information (contact person).[^10] The
    contact person should be able to answer questions regarding the
    information included on the FCC Form 470 and the services requested
    by the applicant, including how to obtain a copy of the applicant's
    request for proposal (RFP), if the applicant has prepared one.[^11]

4.  After the FCC Form 470 is posted on the Administrator's website, the
    applicant must wait at least 28 days before entering into an
    agreement for services and submitting an FCC Form 471, which
    requests support for eligible services.[^12] After receiving an FCC
    Form 471, SLD issues a Funding Commitment Decision Letter granting
    or denying the applicant's requests.

5.  In *Mastermind Internet Services, Inc.*, the Commission held that,
    where an FCC Form 470 lists a contact person who is an employee or
    representative of a service provider, the FCC Form 470 is
    defective.[^13] The Commission observed that the "contact person
    exerts great influence over an applicant\'s competitive bidding
    process by controlling the dissemination of information regarding
    the services requested."[^14] On this basis, the Commission found
    that "when an applicant delegates that power to an entity that also
    will participate in the bidding process as a prospective service
    provider, the applicant irreparably impairs its ability to hold a
    fair and open competitive bidding process."[^15] It concluded that
    "a violation of the Commission\'s competitive bidding requirements
    has occurred where a service provider that is listed as the contact
    person on the FCC Form 470 also participates in the competitive
    bidding process as a bidder."[^16] In such cases, SLD must deny any
    funding request based on that FCC Form 470.[^17]

6.  At issue here are two funding requests seeking telecommunications
    services, Funding Request Numbers (FRNs) 566553 and 566643.[^18] In
    its Funding Commitment Decision Letter, SLD denied these requests on
    the grounds that the "\[a\]ssociated \[FCC\] Form 470 contains
    service provider contact information."[^19] SLD stated that a
    "\[c\]ompetitive bidding violation occurs when \[a service
    provider\] associated with \[the FCC\] Form 470 participates in
    competitive bidding process as a bidder."[^20]

7.  In particular, FRNs 566553 and 566643 relied on FCC Form 470 App.
    No. 136320000298445 (Dickenson Form 470).[^21] The Dickenson Form
    470 listed, as a contact person, Tim Lovelace, an employee of the
    Thomas Educational Consulting, Inc. (TECI).[^22] TECI also
    participated in the competitive bidding process pursuant to the
    Dickenson Form 470, as evidenced by the fact that FRN 566900, which
    also relied on the Dickenson Form 470, sought discounts on internal
    connections to be supplied by TECI.[^23]

8.  In its Request for Review, Dickenson concedes that its FCC Form 470
    contact person was an employee of a service provider that
    participated in the competitive bidding process.[^24] Thus,
    Dickenson does not dispute that its FCC Form 470 is invalid under
    *Mastermind*. It argues, however, that SLD interpreted *Mastermind*
    too broadly and that *Mastermind* should be revisited.[^25]
    Specifically, Dickenson argues that the Dickenson Form 470 should
    not be found invalid in connection with telecommunications requests
    because TECI, the service provider associated with the Dickenson
    Form 470, only bid for the internal connections services and was not
    legally capable of bidding on telecommunications requests because it
    is not a common carrier, and because there is allegedly no other
    evidence of fraud or abuse.[^26]

9.  We disagree with Dickenson's assertion that SLD interpreted
    *Mastermind* too broadly in holding the entire FCC Form 470 invalid.
    The Commission plainly stated that an FCC Form 470 that suffers a
    *Mastermind* violation is "defective" and that requests for support
    that rely upon it "must be denied."[^27] The Common Carrier Bureau
    has also previously confirmed that, under *Mastermind*, "any funding
    request based on \[the defective\] Form 470 must be denied."[^28] As
    to Dickenson's request that *Mastermind* be revisited, it is well
    established that divisions and bureaus of the Commission are bound
    by a decision of the full Commission.[^29] We therefore have no
    authority to overrule or revisit the Commission's decision in
    *Mastermind*.

10. Dickenson alternatively requests that we permit Dickenson to rely on
    a different FCC Form 470 that allegedly supports FRN 566553, its
    local telephone telecommunications funding requests.[^30] Dickenson
    cites to an FCC Form 470 posted in Funding Year 1 by the Virginia
    Department of Information Technology, establishing a pre-existing
    "master contract" for Virginia public schools for local
    telecommunications service from Verizon (DIT Form 470).[^31]

11. We need not decide whether it would be appropriate to permit an
    applicant whose cited FCC Form 470 violated *Mastermind* to seek to
    rely on a different FCC Form 470 because the DIT Form 470 would, in
    any case, fail to support FRN 566553. As reported in the Dickenson
    Form 471, FRN 566553 seeks support for month-to-month local
    telephone service.[^32] Month-to-month services received in one
    funding year cannot be support by reference to an FCC Form 470
    posted in a previous year.[^33] As a result, Dickenson could not, in
    any case, support its Funding Year 4 request for month-to-month
    service by reliance on the Funding Year 1 DIT Form 470. We therefore
    deny Dickenson's request to substitute a new FCC Form 470.

12. 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 Dickenson County Public Schools, Clintwood, Virginia, on
    March 5, 2002 IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Mark G. Seifert

    Deputy Chief, Telecommunications Access Policy Division

    Wireless Competition Bureau

[^1]: Letter from David C. Yates, Dickenson County Public Schools, to
    Federal Communications Commission, filed March 5, 2002 (Request for
    Review).

[^2]: 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).

[^3]: 47 C.F.R. §§ 54.502, 54.503.

[^4]: 47 C.F.R. § 54.504(a).

[^5]: 47 C.F.R. §§ 504(b)(1), (b)(2); Schools and Libraries Universal
    Service, Description of Services Requested and Certification Form,
    OMB 3060-0806 (October 2000) (FCC Form 470).

[^6]: 47 C.F.R. § 54.504(b).

[^7]: 47 C.F.R. § 54.504(b). In addition to a description of the
    services that the applicant plans to receive, the Form 470 requests
    that the applicant provide information about the number of students
    that attend the schools that will receive support, the number of
    buildings for which the applicant seeks services eligible for
    support, and other information relevant to a service provider's
    determination of services appropriate to include in its bid
    proposal. *See* Instructions for Completing the Schools and
    Libraries Universal Service Description of Services Requested and
    Certification Form (FCC Form 470) (October 2000) (FCC Form 470
    Instructions).

[^8]: FCC Form 470 Instructions at 2-3, 16.

[^9]: 47 C.F.R. § 54.504(b)(2).

[^10]: FCC Form 470 Instructions at 7.

[^11]: FCC Form 470 Instructions at 7.

[^12]: 47 C.F.R. § 54.504(b), (c); Schools and Libraries Universal
    Service, Services Ordered and Certification Form, OMB 3060-0806
    (October 2000) (FCC Form 471).

[^13]: *Request for Review by Mastermind Internet Services, Inc.,
    Federal-State Joint Board on Universal Service, Changes to the Board
    of Directors of the National Exchange Carrier Association, Inc.*,
    SPIN-143006149, CC Docket No. 96-45, FCC 00-167, para. 9 (2000)
    (*Mastermind*).

[^14]: *Id.* at para. 10.

[^15]: *Id.*

[^16]: *Id.*

[^17]: *Id.* at para. 9 ("to the extent a \[service provider\] employee
    was listed as the contact person on the FCC Form 470 that initiated
    a competitive bidding process in which \[the service provider\]
    participated, such Forms 470 were defective and violated our
    competitive bidding requirements. In the absence of valid Forms 470,
    the requests for support were properly denied).

[^18]: Request for Review at 1; FCC Form 470, Dickenson County School
    District, filed January 12, 2001 (Dickenson Form 471), at 3-4.

[^19]: Letter from Schools and Libraries Division, Universal Service
    Administrative Company, to David Yates, Dickenson County School
    District, dated September 14, 2001 (Funding Commitment Decision
    Letter), at 6.

[^20]: *Id.*

[^21]: FCC Form 470, Dickenson County School District, posted October
    10, 2000 (Dickenson Form 470).

[^22]: Request for Review at 1; Dickenson Form 470.

[^23]: Dickenson Form 471 at 4. FRN 566900 was also denied, but on the
    grounds that Dickenson was not eligible to receive discounts on
    internal connections in Funding Year 4. Dickenson has not appealed
    this determination.

[^24]: Request for Review at 1.

[^25]: Request for Review at 3.

[^26]: *Id.* at 3-4.

[^27]: *Mastermind*, para. 9.

[^28]: *Request for Review by College Prep School of America,
    Federal-State Joint Board on Universal Service, Changes to the Board
    of Directors of the National Exchange Carrier Association, Inc.*,
    File Nos. SLD-127852, 127862, and 127866, CC Dockets No. 96-45 and
    97-21, Order, 17 FCC Rcd 1738, para. 13 (Com. Car. Bur. 2002).

[^29]: *Voice Stream PCS I License*, 16 FCC Rcd 7584, para. 8 (Enf. Bur.
    2001); *see also* *Jelks v. Federal Communications Commission*, 146
    F.3d 878, 881 (1998) (a subordinate body such as a Division cannot
    alter a policy set by the Commission itself).

[^30]: Request for Review at 4.

[^31]: *See* Request for Review; *see also* DIT website,
    \<<http://www.dit.state.va.us/news/NEWS2000/000925usf.cfm>\>; FCC
    Form 470, Department of Information Technology, Universal Service
    Control Number (USCN) 91512000073811, posted March 12, 1998 (DIT
    Form 470).

[^32]: Dickenson Form 471 at 3.

[^33]: *Request for Review by Chickasaw Regional Library System,
    Federal-State Joint Board on Universal Service, Changes to the Board
    of Directors of the National Exchange Carrier Association, Inc.*,
    File No. SLD-142924, CC Dockets No. 96-45 and 97-21, Order, 17 FCC
    Rcd 683, para. 7 (Com. Car. Bur. 2002) ("An applicant seeking
    funding for month-to-month services from a provider must submit the
    service for competitive bidding even if it is a continuation of a
    service that was bid in the previous year.").