**Before the**

**Federal Communications Commission**

**Washington, DC 20554**

In the Matter of )

)

Request for Review of the )

Decision of the )

Universal Service Administrator by )

)

Hardee County School Board ) NEC.471.04-03-00.3120005

Wauchula, Florida )

)

Goldennet Educational Technology Alliance ) File No. SLD-173335

Bakersfield, California )

)

St. Michael Elementary School ) NEC.471.01.20.00.05100047

Hastings, Nebraska )

)

Concordia Parish Library ) NEC.471.01-20-00.5100019

Ferriday, LA ) NEC.471.01-20-00.5100020

) NEC.471.01-20-00.5100021

) NEC.471.01-20-00.5100022

) NEC.471.01-20-00.5100023

)

)

Toppenish School District No. 202 ) NEC.471.01.21.00.05200073

Toppenish, Washington ) NEC.471.01.21.00.05200074

)

Shorecrest Preparatory School ) NEC.471.01.20.00.051.00078

Saint Petersburg, Florida )

)

Dietrich School District No. 314 ) Control No. D008637

Dietrich, Idaho )

)

Laredo Independent School District ) NEC.471.04.06.98.100041

Laredo, Texas )

)

Rosendale Library ) Control No. D008453

Rosendale, 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 20, 2001 Released: December 21, 2001**

By the Common Carrier Bureau:

1.  The Common Carrier Bureau has under consideration the
    above-captioned Requests seeking a waiver of the Commission's rules
    governing discounts for services under the schools and libraries
    universal service support mechanism.[^1] Specifically, the
    above-captioned entities request a waiver of the application window,
    because they did not submit a completed FCC Form 471 by the filing
    deadline. Consistent with our reasoning below, we remand these
    requests to the Schools and Libraries Division (SLD) of the
    Universal Service Administrative Company. We direct SLD to consider
    as filed within the filing window, these applications for which the
    applicants can demonstrate, based on a currently-pending Request for
    Review, that they postmarked their FCC Form 471 at least three days
    before the filing window deadline, or that they mailed it via
    guaranteed overnight courier at least one day before the deadline.

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 on eligible
    telecommunications services, Internet access, and internal
    connections.[^2] In order to receive discounts on eligible services,
    the Commission's rules require that the applicant submit to the
    Schools and Libraries Division (SLD) of the Universal Service
    Administrative Company (Administrator) a completed FCC Form 470, in
    which the applicant sets forth its technological needs and the
    services for which it seeks discounts[^3]^3^ The Administrator must
    post the FCC Form 470 on its website, and the applicant is required
    to wait 28 days before making a commitment with a selected service
    provider[^4] Once the applicant has complied with the Commission's
    competitive bidding requirements and entered into an agreement for
    eligible services, it must file an FCC Form 471 application to
    notify the Administrator of the services that have been ordered, the
    carrier with whom the applicant has entered into an agreement, and
    an estimate of funds needed to cover the discounts to be given for
    eligible services.[^5] The Commission's rules require that the
    applicant file a completed FCC Form 471 within a filing window
    established by the Administrator to be considered pursuant to the
    funding priorities for "in-window" applicants.[^6] All FCC Forms 471
    that are filed within the window are considered as if they had
    arrived on the same day, and have priority over those received after
    the closing date of the window.[^7]

3.  The Commission's rules specify that the filing window "shall
    conclude on a date to be determined by the Administrator," but do
    not specify what constitutes "filing" for purposes of this rule.[^8]
    The Commission has also directed SLD to establish procedures to
    manage and direct the operation of the filing window.[^9] Under
    SLD's procedures in effect for the first three funding years,
    applications that were not *received* by SLD by the close of the
    filing window were deemed to have missed the deadline.[^10] The
    filing window deadline for Funding Year 1 (January 1, 1998 -- June
    30, 1999) was April 15, 1998.[^11] The deadline for Funding Year 2
    (July 1, 1999 -- June 30, 2000) was originally established as April
    6, 1999.[^12] However, upon determining that uncommitted funds
    remained after processing all in-window applications, SLD extended
    the filing window deadline for Funding Year 2 to March 31,
    2000.[^13] For Funding Year 3, the filing window deadline was
    January 19, 2000.[^14]

4.  A number of applications in the first three funding years were
    postmarked well in advance of the filing window deadline, but
    arrived at SLD after the close of the filing window, and therefore
    were not considered pursuant to the funding priorities for in-window
    applicants. One application, for example, was not received until
    nine days after being mailed, two days past the deadline.[^15]
    Applications were also deemed outside the window as a result of
    failures by guaranteed overnight couriers to provide timely delivery
    service.[^16]

5.  For Funding Year 4, SLD modified its procedures for determining when
    an application would be deemed filed within the window. To avoid the
    problems that had occurred in previous years, SLD notified
    applicants that starting with the application process for Funding
    Year 4 (July 1, 2001 -- June 30, 2002), FCC Form 471s must only be
    *postmarked*, not received, no later than the filing window deadline
    in order to be considered within the window.[^17] This holds
    applicants harmless in the event of a failure of the postal system
    or courier to deliver the application within a reasonable period of
    time. SLD determined, in consultation with the Commission, that this
    revised procedure would result in a more efficient and equitable
    administrative outcome.

6.  We now have before us multiple requests for waiver of the filing
    window, all filed before SLD modified its procedure for determining
    when an application would be deemed filed within the window. We
    believe the public interest would be served by permitting SLD to
    accept, as filed within the window, these applications where the
    applicant exercised due diligence to comply with SLD's then existing
    procedure. In particular, in each of the cases before us, the
    applicant mailed the application at least three days in advance of
    the deadline by regular mail, or, at least one day in advance of the
    deadline by guaranteed overnight courier. Such applicants had a more
    reasonable expectation of timely delivery and should not be
    penalized for the failures of the postal system or courier
    service.[^18] We determine that strict compliance with the
    Administrator's procedure for determining when an application is
    filed would, in this limited instance, be inconsistent with the
    public interest and the unique purposes of the schools and libraries
    support mechanism.[^19]

7.  We emphasize the limited nature of our waiver of the filing deadline
    in these particular circumstances. Our decision is based in part on
    the special nature of the schools and libraries universal service
    support mechanism. Allowing these not-for-profit entities to receive
    the full benefit of the support mechanism is consistent both with
    the statutory purposes of the program, and with the public
    interest.[^20] Moreover, we grant these Waiver Requests only in
    light of the recent change in program procedure starting in Funding
    Year 4, whereby FCC Forms 471 are deemed filed when postmarked by
    the applicant. Our decision provides fair treatment to these
    applicants from the first three funding years that exercised
    reasonable efforts to comply with then-existent procedures by not
    penalizing them for long and unusual mail delivery delays. Because
    this problem has been solved prospectively by considering all FCC
    Forms 471 as filed when postmarked, we do not anticipate that
    waivers of our filing deadline based on unexplained delivery delays
    will arise in the future.[^21]

8.  We direct that applicants in any of the first three funding years
    that can demonstrate, based on their currently pending Waiver
    Requests, that they had postmarked their FCC Forms 471 at least
    three days before the filing window deadline, or that they mailed
    the forms via guaranteed overnight courier at least one day before
    the deadline, will be deemed to have filed their FCC Forms 471
    within the filing window.

9.  Accordingly, IT IS ORDERED, pursuant to authority delegated under
    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 following
    Waiver Requests ARE REMANDED TO SLD for further review consistent
    with this opinion: Hardee County School Board, Wauchula, Florida,
    filed August 28, 2000; Goldennet Educational Technology Alliance,
    Bakersfield, California, filed June 2, 2000; St. Michael Elementary
    School, Hastings, Nebraska, filed July 18, 2000; Concordia Parish
    Library, Ferriday, Louisiana, filed June 19, 2000[^22]; Toppenish
    School District No. 202, Toppenish, Washington, filed July 24, 2000;
    Shorecrest Preparatory School, Saint Petersburg, Florida, filed June
    30, 2000; Dietrich School District No. 314, Dietrich, Idaho, filed
    March 1, 2000; Laredo Independent School District, Laredo, Texas,
    filed March 3, 2000; Rosendale Library, Rosendale, New York, filed
    February 28, 2000.

    FEDERAL COMMUNICATIONS COMMISSION

    Carol E. Mattey

Deputy Chief, Common Carrier Bureau

[^1]: *See* Letter from C.W. Calligan, Hardee County School Board, filed
    August 28, 2000; Letter from Angel A. Sanchez, Goldennet Educational
    Technology Alliance, June 2, 2000; Letter from Father Jim
    Meysenburg, St. Michael Elementary School, filed July 18, 2000;
    Letter from Amanda Taylor, Concordia Parish Library, filed June 19,
    2000 (Concordia Waiver Request); Letter from Eileen Beiersdorf,
    Toppenish School District No. 202, filed July 24, 2000; Letter from
    Jeff Pratt, Shorecrest Preparatory School, filed June 30, 2000;
    Letter from Peter M. Bolz, Sr., Dietrich School District No. 314,
    filed March 1, 2000; Letter from Roy M. Lanier, Laredo Independent
    School District, filed March 3, 2000; Letter from Wendy Alexander,
    Rosendale Library, filed February 28, 2000.

[^2]: 47 C.F.R. §§ 54.502, 54.503.

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

[^4]: ^?^ 47 C.F.R. § 54.504(b)(3) and (4); § 54.511.

[^5]: 47 C.F.R. § 54.504(c).

[^6]: 47 C.F.R. §§ 54.504(c); 54.507(c).

[^7]: *See* 47 C.F.R. § 54.507(c).

[^8]: *Id.*

[^9]: 47 C.F.R. § 54.705(a)(1). *See also Changes to the Board of
    Directors of the National Exchange Carrier Association, Inc.,
    Federal State Joint Board on Universal Service, Third Report and
    Order and Fourth Order on Reconsideration* in CC Docket No. 97-21
    and *Eighth Order on Reconsideration* in CC Docket No. 96- 45, 13
    FCC Rcd 25058, 25075-76, paras. 30-31 and 34 (1998) (*Eighth
    Reconsideration Order*) (describing the functions of the Schools and
    Libraries Committee). Under the rules adopted in the Commission\'s
    *Eighth Reconsideration Order*, the Schools and Libraries
    Committee\'s functions include \"development of applications and
    associated instructions,\" \"review of bills for services that are
    submitted by schools and libraries,\" and \"administration of the
    application process, including activities to ensure compliance with
    Federal Communications Commission rules and regulations." Thus,
    under the *Eighth Reconsideration Order*, the Commission vested in
    the Schools and Libraries Committee and SLD the responsibility for
    administering the application process for the universal service
    support mechanism for eligible schools and libraries.

[^10]: *See, e.g.*, SLD website, What's New March 2000 (March 29, 2000)
    \<<http://www.sl.universalservice.org/whatsnew/032000.asp#32900>\>.

[^11]: *See* 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, 14925, para. 16 n. 39 (1998).

[^12]: *See, e.g.*, SLD website, What's New March 2000 (March 29, 2000)
    \<<http://www.sl.universalservice.org/whatsnew/032000.asp#32900>\>.

[^13]: *Id.*

[^14]: *See* SLD website, SLD Announces Availability of New Forms
    (October 19, 1999) \<[http://
    www.sl.universalservice.org/whatsnew/101999.asp]{.underline}\>.

[^15]: *See* Letter from Wendy Alexander, Rosendale Library, to Federal
    Communications Commission, filed February 28, 2000.

[^16]: *See, e.g.,* Letter from Roy M. Lanier, Laredo Independent School
    District, filed March 3, 2000.

[^17]: *See* Instructions for Completing the Schools and Libraries
    Universal Service, Services Ordered and Certification Form (FCC Form
    471), OMB 3060-0806 (October 2000) (Form 471 Instructions).

[^18]: In contrast, mailing an application a day in advance of the
    deadline by regular mail would not ordinarily be viewed as
    exercising reasonable diligence, and such applications would not
    warrant grant of a waiver.

[^19]: The schools and libraries support mechanism provides discounts
    for services to many of the nation's poorest and neediest schools
    and libraries. *See Federal-State Joint Board on Universal Service*,
    CC Docket No. 96-45, Report and Order, 12 FCC Rcd 8776, 9038, para.
    497 (1997) (*Universal Service Order*), as corrected by
    *Federal‑State Joint Board on Universal Service*, CC Docket No.
    96‑45, Errata, FCC 97‑157 (rel. June 4, 1997), *affirmed in part*,
    *Texas Office of Public Utility Counsel v. FCC*, 183 F.3d 393 (5th
    Cir. 1999) (affirming *Universal Service Order* in part and
    reversing and remanding on unrelated grounds), *cert. denied,
    Celpage, Inc. v. FCC*, 120 S.Ct. 2212 (May 30, 2000), *cert.
    denied,* *AT&T Corp. v. Cincinnati Bell Tel. Co*., 120 S.Ct. 2237
    (June 5, 2000*), cert. dismissed,* *GTE Service Corp. v. FCC*, 121
    S.Ct. 423 (November 2, 2000) (establishing greater discounts for
    economically disadvantaged schools and libraries.").

[^20]: *See id.* at 9002, para. 424 (describing intention of Congress to
    "ensure that eligible schools and libraries have affordable access
    to modern telecommunications and information services that will
    enable them to provide educational services to all parts of the
    nation.").

[^21]: Our decision regarding mailings of FCC Form 471 in the first
    three funding years is limited to the specific facts before us. Our
    decision is not intended to affect the requirements of any other
    filings within the schools and libraries program, or any other
    proceedings before the Common Carrier Bureau or the Commission.

[^22]: Concordia Parish also requested a waiver of the filing window for
    four FCC Forms 470 related to its untimely FCC Forms 471. *See*
    Concordia Waiver Request. However, because its FCC Forms 470 were
    not untimely, we address only the timeliness of Concordia's FCC
    Forms 471.