**Before the**

**Federal Communications Commission**

**Washington, D.C. 20554**

In the Matter of )

)

Request for Review of the )

Decision of the )

Universal Service Administrator by )

)

Sackets Harbor Central School District ) File No. SLD-134383

Sackets Harbor, New York )

)

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: December 19, 2000 Released: December 20, 2000**

By the Common Carrier Bureau:

1.  The Common Carrier Bureau (Bureau) has under consideration a Letter
    of Appeal filed by the Sackets Harbor Central School District
    (Sackets Harbor), Sackets Harbor, New York on May 5, 2000, pursuant
    to section 54.719(c) of the Commission's rules.[^1] Sackets Harbor
    seeks review of a decision of the Schools and Libraries Division
    (SLD) of the Universal Service Administrative Company, denying its
    requests for funding because of violation of the 28-day posting
    requirement for signing contracts for eligible services. For the
    reasons discussed below, we deny the appeal.

2.  The Commission\'s rules provide that eligible schools, libraries and
    consortia must seek competitive bids for all services for which they
    seek support under the schools and libraries universal service
    support mechanism.[^2] To fulfill this requirement, an applicant
    must file an FCC Form 470 with the Administrator, setting forth its
    technological needs and the services for which it seeks
    discounts.[^3] SLD posts the Form 470 on its Web page for a period
    of 28 days.[^4] The applicant must wait at least 28 days after the
    posting of the Form 470 prior to signing a contract for eligible
    services and completing an FCC Form 471 application.[^5] We have
    strictly enforced the 28-day posting requirement.[^6]

3.  By letter dated October 12, 1999, SLD denied Sackets Harbor's
    requests for funding of telecommunications and Internet access
    services, Funding Request Numbers 204218 and 204219, because
    "\[t\]he Form 471 application was signed and/or submitted prior to
    the expiration of the 28-day waiting period from the day of the
    posting of the Form 470 to the SLD Web Site."[^7] Sackets Harbor
    appealed, arguing that its FCC Forms 470 and 471 were sent more than
    28 days apart, on December 17, 1998 and January 28, 1999,
    respectively.[^8] SLD denied the appeal, stating that the Form 471
    was signed on January 28, 1999 and received by SLD on February 1,
    1999, "prior to the Allowable Contract Date of 3/26/99 (the 28^th^
    day after posting the Form 470 on the SLD Web Site)\[.\]"[^9] In the
    instant Letter of Appeal, Sackets Harbor again argues that its Form
    471 was filed more than 28 days after its Form 470, and states that
    it already had filed the Form 471 when it received SLD's Form 470
    receipt notification letter, dated March 1, 1999. Sackets Harbor
    asks why it took so long for SLD to post the Form 470, and why SLD
    did not ask Sackets Harbor to resubmit the premature Form 471 after
    the 28-day posting period.

4.  We affirm SLD's decision to deny Sackets Harbor's funding requests
    for violation of the 28-day posting requirement. Consistent with the
    Commission's rules, the Form 470 and Form 471 instructions clearly
    state that applicants may not sign contracts or complete Form 471
    for 28 days after the posting of Form 470 on the SLD Web site, and
    that SLD will notify applicants by letter of the posting date and
    the 28-day waiting period expiration date.[^10] The Form 470
    instructions also state that "\[t\]hose with questions about this
    application may call toll-free 1-888-203-8100."[^11]

5.  Our examination of the record indicates that SLD received Sackets
    Harbor's Form 470 on December 21, 1998, but did not post it until
    February 26, 1999. Consistent with our rules and the Form 470
    instructions, Sackets Harbor was not permitted to sign a contract
    with a service provider until March 26, 1999. Given the instructions
    in the Form 470, Sackets Harbor should have been aware that it could
    not enter into an agreement or sign its Form 471 until after the
    Form 470 was posted on the SLD website for the entire 28-day waiting
    period.[^12] In light of the thousands of applications that SLD
    reviews and processes each funding year, it is administratively
    necessary to place on the applicant the responsibility of
    understanding and complying with all relevant program rules and
    procedures. By entering into an agreement prior to the allowable
    contract date established by SLD, Sackets Harbor failed to comply
    with the Commission's competitive bidding requirement.

6.  We conclude, moreover, that Sackets Harbor has not presented
    adequate grounds for grant of a waiver of the 28-day posting
    requirement. We granted waivers of the 28-day posting requirement
    and/or the section 54.507(g) filing window deadline[^13] in two
    cases where posting delays caused the waiting period to extend past
    the filing window deadline, and the applicants, upon discovering the
    delays, contacted SLD to determine how to proceed.[^14] In contrast,
    SLD's posting delay in this case did not cause Sackets Harbor's
    waiting period to extend past the filing window deadline of April
    6, 1999. More importantly, rather than waiting for a Form 470
    receipt notification letter or, consistent with the Form 470
    instructions, contacting SLD to determine how to proceed, Sackets
    Harbor simply completed its Form 471. By doing so, Sackets Harbor
    effectively indicated that it had ceased consideration of
    competitive bids, thereby undermining the 28-day waiting period
    requirement purpose of ensuring that "prospective service providers
    have sufficient time to prepare and submit competitive bids for the
    services requested in the Form 470."[^15] Under these circumstances,
    we cannot conclude that waiver of the 28-day posting requirement is
    warranted.

7.  Finally, contrary to Sackets Harbor's suggestion, resubmission of
    its Form 471 after the 28-day waiting period expiration date would
    not have cured its violation of the 28-day posting requirement.[^16]
    The critical issue is when Sackets Harbor signed a contract with the
    service provider, not when it mailed the Form 471. Based on the
    record before us, Sackets Harbor signed a contract before anyone
    ever had an opportunity to submit a competitive bid for the project.

8.  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 appeal filed by
    Sackets Harbor Central School District, Sackets Harbor, New York on
    May 5, 2000 IS DENIED.

    FEDERAL COMMUNICATIONS COMMISSION

    Carol E. Mattey

    Deputy Chief, Common Carrier Bureau

[^1]: Letter from Anne B. Spaziani, Sackets Harbor Central School
    District 56, to Office of the Secretary, FCC, filed May 5, 2000
    (Letter of Appeal). Section 54.719(c) 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]: 47 C.F.R. § 54.504. The Commission's rules provide one exception
    to this requirement for existing contracts as defined in section
    54.511(c). 47 C.F.R. § 54.511(c).

[^3]: 47 C.F.R. §§ 54.504(b)(1), (b)(3).

[^4]: 47 C.F.R. § 54.504(c).

[^5]: 47 C.F.R. §§ 54.504(b)(4), 54.504(c).

[^6]: *See Minor High School*, CC Docket Nos. 96-45 and 97-21, DA
    00-1612 (released July 20, 2000) (affirming denial of request for
    funding based on violation of the 28-day posting requirement where
    applicant signed Form 471 one day before expiration of 28-day
    waiting period); *Currituck County Schools*, CC Docket Nos. 96-45
    and 97-21, DA 00-625 (released March 23, 2000) (denying waiver of
    28-day posting requirement where applicant signed contracts one day
    before expiration of 28-day waiting period).

[^7]: Letter from Schools and Libraries Division, Universal Service
    Administrative Company, to Anne Spaziani, Sackets Harbor School
    District, dated October 12, 1999.

[^8]: Letter from Anne B. Spaziani, Sackets Harbor Central School
    District, to Schools and Libraries Division, filed October 28, 1999.

[^9]: Letter from Schools and Libraries Division, Universal Service
    Administrative Company, to Anne B. Spaziani, Sackets Harbor Central
    School District, dated April 24, 2000.

[^10]: Specifically, the Form 470 instructions state that "schools and
    libraries may sign contracts for services eligible for discounts 28
    days after the descriptions set forth in Form 470 are posted on the
    \[SLD\] Web Site . . . The \[A\]dministrator will notify the
    applicant of the date that the applicant's request is posted and the
    date on which the 28 day waiting period ends." FCC Form 470
    Instructions---December 1998, Page 2. The Form 471 manual filing
    instructions state that the date of signature for the Form 471
    "**CANNOT be earlier than the 29^th^ day following the posting of
    the associated FCC Form 470 to the \[SLD\] Web Site. To determine
    the 29^th^ day following the posting of the associated FCC Form 470
    applications, please consult the SLD notification that you received
    for each FCC Form 470 application**." FCC Form 471
    Instructions---December 1998, Page 24 (original in bold). We note
    that Sackets Harbor's application was filed manually.

[^11]: FCC Form 470 Instructions---December 1998, Page 2.

[^12]: *See Anderson School Staatsburg, New York*, CC Docket Nos. 96-45
    and 97-21, DA 00-2630 (released November 24, 2000), at para. 8 ("In
    light of the thousands of applications that SLD reviews and
    processes each funding year, it is administratively necessary to
    place on the applicant the responsibility of understanding all
    relevant program rules and procedures").

[^13]: Section 54.507(g) provides, among other things, that applicants
    filing Form 471 applications during a filing window receive priority
    for support over applicants that file after the window has closed.
    47 C.F.R. § 54.507(g).

[^14]: *See Council Bluffs Community Schools*, CC Docket Nos. 96-45 and
    97-21, DA 00-1909 (released August 22, 2000) (waiving filing window
    deadline); *Runnemede Public Schools*, CC Docket Nos. 96-45 and
    97-21, DA 99-2957 (released December 21, 1999) (waiving 28-day
    posting requirement and filing window deadline).

[^15]: *Bancroft Rosalie Community Schools*, CC Docket Nos. 96-45 and
    97-21, DA 00-2403 (released October 26, 2000).

[^16]: *See Minor High School*, DA 00-1612 at 3 ("the purpose of the
    28-day waiting period is to ensure that prospective service
    providers have sufficient time to prepare and submit competitive
    bids for the services requested in the FCC Form 470. By completing
    and signing the FCC Form 471 before the waiting period expired,
    Minor indicated that it had ceased consideration of competitive
    bids, thereby undermining the Commission's competitive bidding
    requirements.").