**Before the**

**Federal Communications Commission**

**Washington, DC 20554**

In the Matter of )

)

Requests for Waiver of Decisions of the )

Universal Service Administrator by )

)

Academy for Academic Excellence ) File Nos. SLD-539076, 539722, *et al*.

Apple Valley, California, *et al*. )

)

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

Support Mechanism )

**order**

**Adopted: March 9, 2007 Released: March 9, 2007**

By the Acting Deputy Chief, Wireline Competition Bureau:

# introduction

1.  In this Order, we grant Requests for Waiver filed by 44 applicants
    seeking waiver of the FCC Form 471 filing window deadline for
    Funding Years 2004, 2005, 2006, or 2007[^1] under the schools and
    libraries universal service support mechanism (also known as the
    E-rate program).[^2] Upon review of these requests, we find that the
    issue raised here was recently addressed by the Commission in the
    *Bishop Perry Order*. [^3] Therefore, we remand the underlying
    applications to the Universal Service Administrative Company (USAC
    or Administrator) for further action consistent with the *Bishop
    Perry Order*.[^4] To ensure that the underlying applications are
    resolved expeditiously, we direct USAC to complete its review of
    each application listed in the Appendix and issue an award or a
    denial based on a complete review and analysis no later than 90 days
    from release of this Order.

# BACKGROUND

#  {#section .unnumbered}

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, basic maintenance and
    internal connections.[^5] The applicant must file an FCC Form 470 to
    request discounted services, such as tariffed telecommunications
    services, month-to-month Internet access, cellular services, paging
    services, and any services for which the applicant is seeking a new
    contract.[^6] The FCC Form 470 must be posted on USAC's schools and
    libraries division website for at least 28 days before the applicant
    can file its FCC Form 471.[^7] The FCC Form 471 must be filed within
    each funding year's filing window because, under Commission rules,
    USAC treats all filings made within the filing window as if the
    applications were simultaneously received. [^8] Because the demand
    for funding each year has always exceeded the annual cap, if an FCC
    Form 471 is filed outside of the window, the applicant will not
    receive funding.[^9]

3.  USAC denied Petitioners' applications for discounted services under
    the E-rate program based on their failure to timely file their FCC
    Forms 471. In the Requests for Review before us, Petitioners request
    a waiver of the Commission's deadline for filing the FCC Form 471.

# discussion

4.  We grant the Requests for Waiver filed by 44 applicants seeking
    waiver of Commission rules or of USAC decisions that denied funding
    for applications that were filed outside of the FCC Form 471 filing
    window.[^10] Petitioners assert a waiver is appropriate for one of
    two reasons: (1) someone on the applicants' staff failed to file on
    time due to misunderstanding or personal emergencies, or (2) the
    delay in the filing or the receipt by USAC of the FCC Form 471 was
    due to circumstances out of the applicants' control. Specifically,
    several Petitioners state that they were unable to comply with the
    filing deadline due to staff illness or relatives of staff members
    who were ill.[^11] Other Petitioners indicate that relevant members
    inadvertently failed to file the application forms in a timely
    manner.[^12] Still other Petitioners claim that the rules and
    instructions for filing the FCC Form 471 are vague and unclear and
    that the resulting misunderstandings led to forms being filed after
    the filing window.[^13] The remainder of Petitioners failed to file
    an FCC Form 471 in a timely manner due to circumstances beyond their
    control, such as school reorganizations or inclement weather.[^14]
    In particular, Petitioners state that technical problems, either
    with their own equipment or while interfacing with USAC's electronic
    filing mechanism, prevented their FCC Forms 471 from being timely
    filed.[^15]

5.  Based on the facts and circumstances of these specific cases, we
    find that special circumstances warrant a waiver of the deadline for
    filing the FCC Form 471 found in section 54.507 of the Commission's
    rules.[^16] As the Commission found in the *Bishop Perry Order,* we
    find that the complete rejection of these applications is not
    warranted, given that the violation at issue is procedural, not
    substantive.[^17] Like the applicants in the *Bishop Perry Order*,
    the applicants at issue here have demonstrated that rigid adherence
    to filing procedures does not further the purposes of section 254(h)
    of the Telecommunications Act of 1996 or serve the public
    interest.[^18] Although we base our decision to grant these requests
    in part on the fact that many of the rules at issue here are
    procedural, such a decision is in the context of the purposes of
    section 254 and cannot be applied generally to other Commission
    rules that are procedural in nature. Specifically, section 254
    directs the Commission to "enhance . . . access to advanced
    telecommunications and information services for all public and
    non-profit elementary and secondary school classrooms, health care
    providers and libraries."[^19] Because applicants who are eligible
    for funding will now receive the opportunity for that funding where
    previously it was denied for minor errors, we believe granting
    waivers of these rules in these instances, particularly in light of
    the limited 15-day correction period we impose, will better ensure
    that universal service support is distributed first to the
    applicants who are determined by our rules to be most in need, and
    thus, further the goals of section 254. As the Commission noted in
    the *Bishop Perry Order*, even in the context of the schools and
    libraries program, the waivers here 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.[^20]

6.  We also note that granting these Requests for Waiver should have a
    minimal impact on the Universal Service Fund because the monies
    needed to fund these requests, should they all be fully funded, have
    already been collected and held in reserve.[^21] We therefore find
    that good cause exists to grant and remand the underlying
    applications to USAC for further action consistent with the *Bishop
    Perry Order*. In remanding these applications to USAC, we make no
    finding as to the ultimate eligibility of the services. To ensure
    these issues are resolved expeditiously, we direct USAC to complete
    its review of the applications listed in the Appendix and issue an
    award or a denial based on a complete review and analysis no later
    than 90 calendar days from release of this Order.

7.  Finally, we are committed to guarding against waste, fraud, and
    abuse, and ensuring that funds disbursed through the E-rate program
    are used for appropriate purposes. Although we grant the Requests
    for Waiver addressed here, this action in no way affects the
    authority of the Commission or USAC to conduct audits and
    investigations to determine compliance with the E-rate program rules
    and requirements. Because audits or investigations may provide
    information showing that a beneficiary or service provider failed to
    comply with the statute or the Commission's rules, such proceedings
    can reveal instances in which universal service funds were
    improperly disbursed or in a manner inconsistent with the statute or
    the Commission's rules. To the extent we find that funds were not
    used properly, we will require USAC to recover such funds through
    its normal processes. We emphasize that we retain the discretion to
    evaluate the uses of monies disbursed through the E-rate program and
    to determine on a case-by-case basis that waste, fraud, or abuse of
    program funds occurred and that recovery is warranted. We remain
    committed to ensuring the integrity of the program and will continue
    to aggressively pursue instances of waste, fraud, or abuse under the
    Commission's procedures and in cooperation with law enforcement
    agencies.

# ordering clauses

8.  ACCORDINGLY, IT IS ORDERED that, pursuant to the authority contained
    in sections 1-4 and 254 of the Communications Act of 1934, as
    amended, 47 U.S.C. §§ 151-154 and 254, and pursuant to authority
    delegated in sections 0.91, 0.291, 1.3, and 54.722(a) of the
    Commission's rules, 47 C.F.R. §§ 0.91, 0.291, 1.3, and 54.722(a),
    that the Requests for Waiver of 47 C.F.R. §54.507 filed by the
    Petitioners as listed in the Appendix ARE GRANTED and REMANDED to
    USAC for further action consistent with the terms of this Order.

9.  IT IS FURTHER ORDERED that, pursuant to the authority contained in
    sections 1-4 and 254 of the Communications Act of 1934, as amended,
    47 U.S.C. §§ 151-154 and 254, and pursuant to the authority
    delegated in sections 0.91, 0.291, 1.3, and 54.722(a) of the
    Commission's rules, 47 C.F.R. §§ 0.91, 0.291, 1.3, and 54.722(a),
    USAC SHALL COMPLETE its review of the underlying applications as
    listed in the Appendix and ISSUE an award or a denial based on a
    complete review and analysis no later than 90 days from release of
    this Order.

10. IT IS FURTHER ORDERED that, pursuant to authority delegated under
    sections 0.91, 0.291 and 1.102 of the Commission's rules, 47 C.F.R.
    §§ 0.91, 0.291, 1.102, this Order SHALL BE EFFECTIVE upon release.

    FEDERAL COMMUNICATIONS COMMISSION

    Renée R. Crittendon

    Acting Deputy Chief

> Wireline Competition Bureau

**APPENDIX**

**[Requests for Waiver]{.underline}**

+-------------------------------+----------------------------+--------+
| **Applicant**                 | **Application Number**     | **F    |
|                               |                            | unding |
|                               |                            | Year** |
+-------------------------------+----------------------------+--------+
| Academy for Academic          | 539076, 539722             | 2006   |
| Excellence                    |                            |        |
|                               |                            |        |
| Apple Valley, CA              |                            |        |
+-------------------------------+----------------------------+--------+
| Adair County R-1 School       | 539280                     | 2006   |
| District                      |                            |        |
|                               |                            |        |
| Novinger, MO                  |                            |        |
+-------------------------------+----------------------------+--------+
| Alabama Institute for Deaf    | 402182                     | 2004   |
| and Blind                     |                            |        |
|                               |                            |        |
| Talladega, AL                 |                            |        |
+-------------------------------+----------------------------+--------+
| Arab City School District     | 522281                     | 2006   |
|                               |                            |        |
| Arab, AL                      |                            |        |
+-------------------------------+----------------------------+--------+
| Aurora City Schools           | 538287, 538375, 538381,    | 2006   |
|                               | 538385, 538392             |        |
| Aurora, OH                    |                            |        |
+-------------------------------+----------------------------+--------+
| Blessed Sacrament Regional    | FCC Form 470 Number        | 2006   |
| School                        | 957270000                  |        |
|                               |                            |        |
| Margate, NJ                   |                            |        |
+-------------------------------+----------------------------+--------+
| Brantley County Board of      | 538866                     | 2006   |
| Education                     |                            |        |
|                               |                            |        |
| Nahunta, GA                   |                            |        |
+-------------------------------+----------------------------+--------+
| Cloudcroft Municipal Schools  | 539260                     | 2006   |
|                               |                            |        |
| Cloudcroft, NM                |                            |        |
+-------------------------------+----------------------------+--------+
| Easton Public Schools         | FCC Form 470 Numbers       | 2006   |
|                               | 240050000552718,           |        |
| North Easton, MA              | 77432000059399             |        |
+-------------------------------+----------------------------+--------+
| Endinburg Consolidated        | 457280                     | 2005   |
| Independent School District   |                            |        |
|                               |                            |        |
| Edinburg, TX                  |                            |        |
+-------------------------------+----------------------------+--------+
| Fairport Harbor Schools       | 479146                     | 2005   |
|                               |                            |        |
| Fairport Harbor, OH           |                            |        |
+-------------------------------+----------------------------+--------+
| Grinnell Unified School       | 538532                     | 2006   |
| District                      |                            |        |
|                               |                            |        |
| Grinnell, KS                  |                            |        |
+-------------------------------+----------------------------+--------+
| Klamath-Trinity Joint Unified | 537945                     | 2006   |
| School District               |                            |        |
|                               |                            |        |
| Hoopa, CA                     |                            |        |
+-------------------------------+----------------------------+--------+
| Lawrence Public Schools       | 539201                     | 2006   |
|                               |                            |        |
| Lawrence, MI                  |                            |        |
+-------------------------------+----------------------------+--------+
| Lubavitch Educational Center  | FCC Form 470 Number        | 2006   |
|                               | 177450000556618            |        |
| Miami, FL                     |                            |        |
+-------------------------------+----------------------------+--------+
| Martin County West Public     | FCC Form 470 Number        | 2007   |
| Schools                       |                            |        |
|                               | 100040000611630            |        |
| Welcome, MN                   |                            |        |
+-------------------------------+----------------------------+--------+
| Maryetta Elementary School    | 482137                     | 2005   |
|                               |                            |        |
| Stilwell, OK                  |                            |        |
+-------------------------------+----------------------------+--------+
| Middleton School District     | FCC Form 471 Number        | 2007   |
| #134                          |                            |        |
|                               | 175290000591254            |        |
| Middleton, ID                 |                            |        |
+-------------------------------+----------------------------+--------+
| Nativity School South Park    | 538541                     | 2006   |
|                               |                            |        |
| Pittsburgh, PA                |                            |        |
+-------------------------------+----------------------------+--------+
| Nellie Pederson Civic Library | 540203                     | 2006   |
|                               |                            |        |
| Clifton, YX                   |                            |        |
+-------------------------------+----------------------------+--------+
| Oak Ridge School District     | 539029                     | 2006   |
| R-VI                          |                            |        |
|                               |                            |        |
| Oak Ridge, MO                 |                            |        |
+-------------------------------+----------------------------+--------+
| Oconee Regional Library       | 541020, 541024, 541025,    | 2006   |
| System                        | 541026                     |        |
|                               |                            |        |
| Dublin, GA                    |                            |        |
+-------------------------------+----------------------------+--------+
| Osage County Interlocal       | 538398                     | 2006   |
| Cooperative (On behalf of     |                            |        |
| Frontier Public Schools       |                            |        |
|                               |                            |        |
| Hominy, OK                    |                            |        |
+-------------------------------+----------------------------+--------+
| Osage County Interlocal       | 538596                     | 2006   |
| Cooperative (On behalf of     |                            |        |
| Newkirk Public School)        |                            |        |
|                               |                            |        |
| Hominy, OK                    |                            |        |
+-------------------------------+----------------------------+--------+
| Philadelphia Youth Build      | Billed Entity Number       | 2006   |
| Charter School                | 209918                     |        |
|                               |                            |        |
| Philadelphia, PA              |                            |        |
+-------------------------------+----------------------------+--------+
| Pinon Community School Board, | 528797                     | 2006   |
| Inc.                          |                            |        |
|                               |                            |        |
| Pinon, AZ                     |                            |        |
+-------------------------------+----------------------------+--------+
| Pomeroy-Palmer Community      | FCC Form 470 Number        | 2006   |
| School District               | 210050000568377            |        |
|                               |                            |        |
| Pomeroy, IA                   |                            |        |
+-------------------------------+----------------------------+--------+
| Portsmouth School Department  | 538569                     | 2006   |
|                               |                            |        |
| Portsmouth, RI                |                            |        |
+-------------------------------+----------------------------+--------+
| Pottsboro Independent School  | 538771                     | 2006   |
| District                      |                            |        |
|                               |                            |        |
| Pottsboro, TX                 |                            |        |
+-------------------------------+----------------------------+--------+
| Providence Independent School | 539183                     | 2006   |
| District                      |                            |        |
|                               |                            |        |
| Providence, KY                |                            |        |
+-------------------------------+----------------------------+--------+
| Ray Unified School #3         | 537531                     | 2006   |
|                               |                            |        |
| Kearny, AZ                    |                            |        |
+-------------------------------+----------------------------+--------+
| Sacred Heart High School      | 538667                     | 2006   |
|                               |                            |        |
| Hallettsville, TX             |                            |        |
+-------------------------------+----------------------------+--------+
| Saint Barnabas High School    | 492551                     | 2006   |
|                               |                            |        |
| Bronx, NY                     |                            |        |
+-------------------------------+----------------------------+--------+
| Springfield School District   | 538591                     | 2006   |
|                               |                            |        |
| Springfield, CO               |                            |        |
+-------------------------------+----------------------------+--------+
| Springvale Public Library     | FCC Form 470 Application   | 2006   |
|                               | Number 157560000552893     |        |
| Springvale, ME                |                            |        |
+-------------------------------+----------------------------+--------+
| Stafford Municipal School     | 539478                     | 2006   |
| District                      |                            |        |
|                               |                            |        |
| Stafford, TX                  |                            |        |
+-------------------------------+----------------------------+--------+
| St. Augustine School          | 539122                     | 2006   |
|                               |                            |        |
| Rensselear, IN                |                            |        |
+-------------------------------+----------------------------+--------+
| St. Mary's Episcopal School   | 539031                     | 2006   |
|                               |                            |        |
| Memphis, TN                   |                            |        |
+-------------------------------+----------------------------+--------+
| St. Paul School               | 536167, 538202             | 2006   |
|                               |                            |        |
| Salem, OH                     |                            |        |
+-------------------------------+----------------------------+--------+
| The Epiphany School           | 539498                     | 2006   |
|                               |                            |        |
| New York, NY                  |                            |        |
+-------------------------------+----------------------------+--------+
| The Logan School              | 508418                     | 2006   |
|                               |                            |        |
| Denver, CO                    |                            |        |
+-------------------------------+----------------------------+--------+
| Underwood Community School    | 538464                     | 2006   |
| District                      |                            |        |
|                               |                            |        |
| Underwood, IA                 |                            |        |
+-------------------------------+----------------------------+--------+
| Warren County Vocational      | FCC Form 470 Application   | 2006   |
| School District               | Number                     |        |
|                               |                            |        |
| Lebanon, OH                   | 209020000581296            |        |
+-------------------------------+----------------------------+--------+
| Western Massachusetts         | 538389                     | 2006   |
| Regional Library              |                            |        |
|                               |                            |        |
| South Deerfield, MA           |                            |        |
+-------------------------------+----------------------------+--------+

[^1]: Funding Year 2004 started July 2, 2004 and ended on June 30, 2006.
    Funding Year 2005 started on July 1, 2005 and ended on June 30,
    2006. Funding Year 2006 started on July 1, 2006 and will end on June
    30, 2007. Funding Year 2007 will start on July 1, 2007 and end on
    June 30, 2008.

[^2]: A list of these pleadings is attached as an Appendix. 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). Although
    Adair County R-1 School District, Alabama Institute for Deaf and
    Blind, Cloudcroft Municipal Schools, Endinburg Consolidated
    Independent School District, Portsmouth School Department,
    Providence Independent School District, Sacred Heart High School,
    Springfield School District, Stafford Municipal School District, The
    Logan School, and Underwood Community School District did not
    explicitly request a waiver of the FCC Form 471 filing window
    deadline, we will treat their Requests for Review as Requests for
    Waiver because the Administrator denied their FCC Forms 471 or
    denied their appeals on the grounds that their FCC Forms 471 were
    filed late.

[^3]: *See Request for Review of the Decision of the Universal Service
    Administrator by Bishop Perry Middle School, New Orleans, LA, 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 (2006) (*Bishop Perry Order*) (waiving the Commission's
    rules to, *inter alia*, allow applicants' to timely file their FCC
    Forms 471).

[^4]: *Id.*

[^5]: 47 C.F.R. §§ 54.501-54.504.

[^6]: 47 C.F.R. § 54.504(b).

[^7]: 47 C.F.R. § 54.504(b)(4).

[^8]: *Id*.

[^9]: 47 C.F.R. § 54.507.

[^10]: *See* Appendix. The Commission may waive any provision of its
    rules on its own motion and for good cause shown. 47 C.F.R. § 1.3. A
    rule may be waived 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, 1157, (D.C. Cir. 1969), *affirmed by* *WAIT Radio v.
    FCC*, 459 F.2d 1203 (D.C. Cir. 1972). 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. *Northeast Cellular*, 897 F.2d
    at 1166.

[^11]: Request for Waiver of Aurora City Schools; Request for Review for
    Nativity School South Park; Request for Waiver of Nellie Pederson
    Civic Library; Request for Waiver of Oak Ridge School District R-VI;
    Request for Waiver of Springvale Public Library; Request for Waiver
    of St. Mary's Episcopal School; and Request for Waiver of Western
    Massachusetts Regional Library.

[^12]: Request for Review of Adair County R-1 School District; Request
    for Review of Alabama Institute for Deaf and Blind; Request for
    Waiver of Blessed Sacrament Regional School; Request for Waiver of
    Oconee Regional Library System; Request for Review of Springfield
    School District; and Request for Waiver of St. Paul School.

[^13]: Request for Review of Cloudcroft Municipal School; Request for
    Waiver of Easton Public Schools; Request for Review of Edinburg
    Consolidated Independent School District; Request for Waiver of
    Grinnell Public Schools; Request for Waiver of Lawrence Public
    Schools; Request for Waiver of Maryetta Elementary School; Request
    for Waiver of Pottsboro Independent School District; Request for
    Review of Providence Independent School District; Request for Waiver
    of Ray Unified School #3; and Request for Waiver of St. Augustine
    School.

[^14]: Request for Waiver of Arab City School District; Request for
    Waiver of Brantley County Board of Education; Request for Waiver of
    Fairport Harbor Schools; Request for Waiver of Lubavitch Educational
    Center; Request for Waiver of Martin County West Public Schools;
    Request for Waiver of Middleton School District #134; Request for
    Waiver of Pomeroy-Palmer Community School District; Request for
    Review of Portsmouth School Department; Request for Review of Sacred
    Heart High School; Request for Waiver of Saint Barnabas High School;
    Request for Waiver of The Epiphany School; Request for Review of The
    Logan School; and Request for Waiver of Warren County Vocational
    School District.

[^15]: Request for Waiver of Academy for Academic Excellence; Request
    for Waiver of Klamath-Trinity Joint Unified School District; Request
    for Waiver of Osage County Interlocal Cooperative (On behalf of
    Frontier Public Schools); Request for Waiver of Osage County
    Interlocal Cooperative (On behalf of Newkirk Public School); Request
    for Waiver of Philadelphia Youth Build Charter School; Request for
    Waiver of Pinon Community School Board, Inc.; Request for Review of
    Stafford Municipal School District; and Request for Review of
    Underwood Community School District. One Petitioner claims that it
    attempted to mail its FCC Form 471 on time but that problems with a
    third-party carrier prevented the application from arriving in a
    timely manner. Request for Waiver of Pinon Community School Board,
    Inc.

[^16]: 47 C.F.R. § 54.507.

[^17]: *Bishop Perry Order,* 21 FCC Rcd at 5323, para. 14.

[^18]: *See* 47 U.S.C. § 254(h). The Telecommunications Act of 1996,
    Pub. L. No. 104-104, 110 Stat. 56, amended the Communications Act of
    1934.

[^19]: *See* 47 U.S.C. § 254(h).

[^20]: *Bishop Perry Order*, 21 FCC Rcd at 5319, para. 9.

[^21]: We estimate that the Request for Review granted in this Order
    involve applications for approximately \$1.8 million in funding for
    Funding Years 2004-2007. We note that USAC has already reserved
    sufficient funds to address outstanding appeals. *See, e.g.,*
    Universal Service Administrative Company, Federal Universal Service
    Support Mechanisms Fund Size Projections for the First Quarter 2007,
    dated Nov. 2, 2006. *See* USAC website,
    <http://search.universalservice.org/query.html?qt=fund+size+projections>
    (retrieved March 5, 2007).