**Before the**

**Federal Communications Commission**

**Washington, DC 20554**

In the Matter of )

)

Request for Review of the )

Decision of the )

Universal Service Administrator by )

)

Massachusetts Department of Education ) File No. SLD-149217

Malden, Massachusetts )

)

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: April 9, 2001 Released: April 10, 2001**

By the Common Carrier Bureau:

1.  The Common Carrier Bureau (Bureau) has before it a Request for
    Review filed by the Massachusetts Department of Education (Mass.
    DOE), Malden, Massachusetts, requesting review of a decision of the
    Schools and Libraries Division (SLD) of the Universal Service
    Administrative Company (Administrator).[^1] Mass. DOE seeks review
    of SLD's denial of its application for Year 2 funding under the
    schools and libraries universal service support program.[^2] Because
    Mass. DOE has failed to demonstrate that the schools it represents
    have the necessary resources to make effective use of the requested
    funding, 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 on eligible
    telecommunications services, Internet access, and internal
    connections.[^3] The Commission\'s rules require that an applicant
    seeking funds under this program must first submit to the
    Administrator a completed FCC Form 470, in which the applicant sets
    forth its technological needs and the services for which it seeks
    discounts.[^4] Once the applicant has entered into an agreement for
    eligible services, it must file an FCC Form 471 application
    notifying the Administrator of the services that have been ordered,
    the carrier with whom the applicant has signed a contract, and an
    estimate of the funds needed to cover the discounted portion of the
    price of the eligible services.[^5]

3.  On the Form 470, applicants must attest that any support they
    receive is conditional upon their "securing access to all of the
    resources, including computers, training, software, maintenance, and
    electrical connections necessary to use the services purchased
    effectively."[^6] Similarly, in Item 22 of the Form 471, an
    applicant must certify that "\[t\]he school(s) or librar(ies) I
    represent have secured access to all of the resources, including
    computers, training, software, maintenance, and electrical
    connections necessary to make effective use of the services
    purchased as well as to pay the discounted charges for eligible
    services."[^7] These certifications are consistent with the
    requirements set forth in the Commission's May 8, 1997, *Universal
    Service Order* and the Commission's rules.[^8] In the *Universal
    Service Order*, the Commission stated that applicants for discounts
    under the schools and libraries universal service support mechanism
    would be required to certify in their requests for services that
    "all of the necessary funding in the current funding year has been
    budgeted and will have been approved to pay for the 'non-discount'
    portion of requested connections and services as well as any
    necessary hardware, software, and to undertake the necessary staff
    training required in time to use the services effectively . . . .
    "[^9]

4.  On April 6, 1999, Mass. DOE filed a Form 471 application as a
    consortium leader, seeking Year 2 funding of Internet access on
    behalf of a large number of Massachusetts public schools.[^10] These
    funding requests were sought as part of Massachusetts' MassEd.net
    program, which supplies basic internet dial-up capability to public
    school educators in areas of the state where more advanced Internet
    connections are prohibitively expensive.[^11] On or about August 17,
    1999, SLD faxed Mass. DOE a letter requesting information
    demonstrating that Mass. DOE's members had secured the resources
    necessary to make effective use of the funds requested.[^12] As
    explained in greater detail below, SLD did not thereafter receive
    any responsive documentation.[^13]

5.  On December 15, 1999, SLD issued a Funding Commitment Decision
    Letter, denying Mass. DOE's application in its entirety.[^14] It
    explained: "This determination . . . is based on our finding that
    you have not secured access to all of the resources necessary to
    effectively use the services you are ordering, as well as to pay for
    the discounted charges for eligible services."[^15] On January 19,
    2000, Mass. DOE filed an appeal of this decision with SLD, asserting
    that the educators who received MassEd.net funding had the necessary
    resources.[^16] It also described some of the resources available,
    and provided documentation of its budgetary allocation for paying
    its share of the charges.[^17]

6.  On September 11, 2000, SLD issued a decision denying the
    appeal.[^18] It explained that "\[t\]he applicant certifies on the
    FCC Form 471 that the entities it represents have secured access to
    adequate resources to make effective use of the discounts" and
    "\[i\]t is the responsibility of the applicant to provide
    documentation to support that certification if requested."[^19] SLD
    further rejected the new information and documentation proffered by
    Mass. DOE, finding:

    According to our written procedures, we cannot consider new
    information, on appeal, unless there is evidence in the file that
    the applicant was not given the opportunity to provide us with
    documentation during the review process. Since the applicant was
    given sufficient time to provide information during the review
    process, the appeal is denied.[^20]

    Mass. DOE subsequently appealed this decision to the Commission by
    filing the pending Request for Review.

7.  We initially note that SLD was acting well within its authority in
    engaging in a careful review of Mass. DOE's Item 22 necessary
    resources certification. In *United Talmudical Academy*, the
    Commission upheld SLD's practice of reviewing the accuracy of
    applicants' certifications regarding necessary resources. It
    concluded that by doing so, SLD ensures program compliance with
    statutory requirements, including the directive in section
    254(h)(1)(B) of the Communications Act of 1934 which allows funding
    only for bona fide requests for services to be used for educational
    purposes.[^21] The Commission also found that review of the
    certifications curbs waste, fraud, and abuse in the schools and
    libraries universal service program.[^22] Thus, there is no doubt
    that SLD was authorized to obtain estimates and documentation from
    Mass. DOE in support of its necessary resources certification.

8.  We find that Mass. DOE failed to provide any documentation to
    support its necessary resources certification. SLD originally faxed
    an Item 22 review documentation request to the applicant contact
    person, Tom Iacobucci, on August 17, 1999, with instructions to
    respond within seven days.[^23] SLD repeated its request on
    September 13 and 28, 1999.[^24] On September 30, 1999, Tom Iacobucci
    responded that he believed that the matter had been taken care of,
    and that he would provide the documentation as soon as
    possible.[^25] No documentation was forthcoming, and SLD repeated
    its request to Mr. Iacobucci yet again on October 29, 1999.[^26] On
    November 3,1999, SLD contacted John Fuller, Director of Operations
    for the Massachusetts Department of Education Office of Technology,
    and informed him that it had not received the documentation. SLD set
    November 4, 1999 as the deadline for the requested information.[^27]
    No documentation was received at any time prior to the issuance of
    the Funding Commitment Decision Letter on December 15, 1999.[^28]

9.  Along with its Request for Review, Mass. DOE has supplied an
    affidavit from Mr. Fuller in which he alleges that, when the first
    request was received, he instructed Mr. Iacobucci to gather the
    information and forward it to SLD immediately.[^29] Mr. Fuller
    alleges that when he received the November 1999 call from SLD,
    informing him that the documentation had not arrived, he spoke again
    with Mr. Iacobucci who stated that he had sent the information to
    SLD "several times already."[^30] Nevertheless, Mr. Fuller
    instructed Mr. Iacobucci to resend the information. Mr. Fuller
    states that a day or two later, Mr. Iacobucci told him that the
    information had been sent, and Mr. Fuller relied on this
    assurance.[^31]

10. Mr. Fuller concedes, however, that he is unable to locate any
    documentation or evidence that the Item 22 information was in fact
    ever sent.[^32] This, Mr. Fuller explains, is because Mr. Iacobucci,
    who was responsible for maintenance of the relevant records, was not
    retained when his employment term ended on June 30, 2000.[^33] Thus,
    Mr. Fuller cannot say for certain that any documentation was ever
    sent to SLD. Based on the absence of any contrary evidence in the
    record, and the inability of Mass. DOE to provide any evidence
    demonstrating that the documentation was in fact sent, we find that
    it was reasonable for SLD to conclude that Mass. DOE had failed to
    document that it had sufficient resources in response to SLD's
    inquiry.

11. Mass. DOE argues that Mr. Fuller acted in good faith throughout the
    application process in attempting to see that SLD's requests were
    complied with and that Mass. DOE should be excused from any
    inadvertent failure to respond to SLD's demands. However, regardless
    of the good faith efforts of Mr. Fuller, Mass. DOE is still
    responsible for its failure, and specifically the failure of Mr.
    Iacobucci, its chosen contact person, to supply the requested
    information. Given that Mass. DOE supplied no documentation during
    the review process in support of its necessary resources
    certification, we conclude that Mass. DOE failed to demonstrate that
    its members possessed the necessary resources to make effective use
    of the services requested, and we hold that SLD properly denied
    funding on that basis.

12. On appeal, Mass. DOE offers additional documentation supporting its
    necessary resources certification. In order to ensure that
    implementation of the schools and libraries program is not unduly
    delayed, however, we have affirmed SLD's authority to require that
    requested documentation be supplied by applicants within a
    reasonable time.[^34] Therefore, when SLD requests information to
    support an Item 22 review, applicants must respond within a
    reasonable time period or risk the potential of denial based on the
    failure to support an Item 22 certification.[^35] SLD's policy is to
    require information within seven business days, and we have found
    that a two-week period is a reasonable period of time.[^36] Here,
    SLD gave the applicant over two months, far more time than it had
    to, and yet Mass. DOE still did not supply the required information.
    It is therefore not entitled to supplement the record further.

13. Mass. DOE argues that it should not be denied funding because it was
    not on notice that the failure to submit "necessary resources"
    documentation might result in the denial of its application.
    However, even if Mass. DOE were not given express notice of the
    consequences of failing to provide requested documentation, it
    should have known that it could not fail to produce the material
    indefinitely, and that after SLD had made five separate requests
    over a period of more than two months without success, SLD might
    then proceed to a decision based on the existing record.[^37]
    Moreover, the record demonstrates that Mr. Fuller was in fact
    expressly informed on November 3, 1999 that unless the "necessary
    resources" information was received by November 4, 1999, "the entire
    application was at risk of being denied."[^38] In addition, as noted
    above, we had issued Orders prior to November of 1999 making it
    clear that denial of funding was a possible consequence of the
    failure to submit requested documentation.[^39] Therefore, Mass.
    DOE's argument that it should be excused because it lacked notice
    regarding the consequences of failing to comply with SLD's document
    requests is both contrary to the record and unreasonable on its
    face.

14. Finally, we note that Mass. DOE was not entitled to relief from SLD
    for the additional reason that its appeal to SLD was untimely. Under
    section 54.720 of the Commission's rules, an appeal must be filed
    with SLD within 30 days of the issuance of the decision as to which
    review is sought.[^40] Documents are considered to be filed with the
    Commission or SLD only upon receipt.[^41] Here, SLD issued its
    Funding Commitment Decision Letter on December 15, 1999.[^42] Mass.
    DOE did not file its appeal with SLD until January 19, 2000. Thus,
    although we have reviewed and affirmed the merits of the
    Administrator's Decision on Appeal, we also find that, under the
    Commission's regulations, SLD should have dismissed Mass. DOE's
    appeal without reaching the merits. We also observe that SLD's
    decision on the merits of Mass DOE's appeal cannot be construed as a
    waiver of the 30-day rule, because SLD has no authority to make such
    a waiver.[^43] Since Mass. DOE is not entitled to relief even when
    the merits are considered, we need not decide whether it would be
    appropriate to grant a waiver of section 54.720.

15. 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 on October 5, 2000 by Massachusetts Department of Education,
    Malden, Massachusetts, IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Carol E. Mattey

Deputy Chief, Common Carrier Bureau

[^1]: Letter from John Fuller, Massachusetts Department of Education, to
    Federal Communications Commission, filed October 5, 2000 (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(b)(1), (b)(3). In submitting its FCC Form 470,
    an applicant is required to provide general information about the
    services for which it seeks discounts, *e.g*., number of phones that
    require service, number of dial-up connections necessary, as well as
    an assessment of the applicant\'s existing technology that may be
    necessary for the effective use of eligible services. *See* Schools
    and Libraries Universal Service, Description of Services Requested
    and Certification Form, OMB 3060-0806 (Form 470).

[^5]: 47 C.F.R. § 54.504(c); *see also* Schools and Libraries Universal
    Service, Services Ordered and Certification Form, OMB 3060-0806
    (Form 471).

[^6]: *See* Form 470 at Item 25.

[^7]: *See* Form 471 at Item 22.

[^8]: *Federal-State Joint Board on Universal Service,* CC Docket No.
    96-45, Report and Order, 12 FCC Rcd 8776, 9079, para. 577 (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 in Texas Office of Public
    Utility Counsel v. FCC*, 183 F.3d 393 (5^th^ Cir. 1999), *motion for
    stay granted in part* (Sept. 28, 1999), *petitions for rehearing and
    rehearing en banc denied* (Sept. 28, 1999) (affirming *Universal
    Service Order* in part and reversing and remanding on unrelated
    grounds), *cert. denied in 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). *See also*
    47 C.F.R. § 54.504(b)(1) (requiring applicants to provide
    information about equipment, services, training and other facilities
    in place to make use of the services requested) *and* 47 C.F.R. §
    54.504(b)(2) (requiring that each applicant's FCC Form 470 certify
    that "all of the necessary funding in the current funding year has
    been budgeted and approved to pay for the 'non-discount' portion of
    requested connections and services as well as any necessary hardware
    or software, and to undertake the necessary staff training required
    to use the services effectively . . . "). These requirements are
    referred to collectively hereinafter as the "necessary resources
    certifications."

[^9]: *Universal Service Order*, 12 FCC Rcd at 9079, para. 577.

[^10]: FCC Form 471, Massachusetts Department of Education, filed April
    6, 1999.

[^11]: Request for Review at 10-11; Affidavit of John Fuller in Support
    of Request for Review, para. 2 (Fuller Affidavit).

[^12]: Letter from Schools and Libraries Division, Universal Service
    Administrative Co., to Thomas K. Iacobucci, Commonwealth of
    Massachusetts Information Technology -- Department of Education,
    dated September 11, 2000 (Administrator's Decision on Appeal) at 1.

[^13]: Administrator's Decision on Appeal at 1.

[^14]: Letter from Schools and Libraries Division, Universal Service
    Administrative Co., to Thomas K. Iacobucci, Commonwealth of
    Massachusetts Information Technology -- Department of Education,
    dated December 15, 1999 (Funding Commitment Decision Letter).

[^15]: Funding Commitment Decision Letter at 1.

[^16]: Letter from Thomas K. Iacobucci, Commonwealth of Massachusetts
    Department of Education, to Schools and Libraries Corp., filed
    January 19, 2000 (Appeal to SLD) at 2.

[^17]: Appeal to SLD at 1-2.

[^18]: *See* Administrator's Decision on Appeal.

[^19]: *Id.* at 1.

[^20]: *Id.*

[^21]: *Request for Review by United Talmudical Academy, Federal-State
    Joint Board on Universal Service, Changes to the Board of Directors
    of the National Exchange Carrier Association, Inc.*, File No.
    SLD-105791, 15 FCC Rcd 423, paras. 9, 14 (2000) (*United Talmudical
    Academy*).

[^22]: *Id.* at para. 14.

[^23]: Administrator's Decision on Appeal at 1.

[^24]: Administrator's Decision on Appeal at 1; Fuller Affidavit para.
    6; Letter from Schools and Libraries Division, Universal Service
    Administrative Co., to Massachusetts Department of Education, dated
    July 10, 1999, at 2 (Item 22 Review Letter) (attached to Request for
    Review).

[^25]: Administrator's Decision on Appeal at 1.

[^26]: Administrator's Decision on Appeal at 1.

[^27]: Administrator's Decision on Appeal at 1; Fuller Affidavit para.
    7.

[^28]: Administrator's Decision on Appeal at 1.

[^29]: Fuller Affidavit paras. 5-6.

[^30]: Fuller Affidavit para. 7.

[^31]: *Id.*

[^32]: Fuller Affidavit para. 9; Request for Review at 7.

[^33]: Fuller Affidavit para. 9.

[^34]: *Request for Review by Nefesh Academy, Federal-State Joint Board
    on Universal Service, Changes to the Board of Directors of the
    National Exchange Carrier Association, Inc.*, File No. SLD-27881, CC
    Dockets No. 96-45 and 97-21, Order, DA 99-2284, para. 4 (Com. Car.
    Bur. rel. October 22, 1999) (*Nefesh Academy*).

[^35]: *Id.* at para. 4.

[^36]: *Id*.

[^37]: Administrator's Decision on Appeal at 1.

[^38]: *See* Transcript of Phone Message from Catriona Ayer, Schools and
    Libraries Division, Universal Service Administrative Co., to Greg
    Nadeau, Massachusetts Dept. of Education, dated November 3, 1999.

[^39]: *See* *Nefesh Academy* at para. 4.

[^40]: 47 C.F.R. § 54.720.

[^41]: 47 C.F.R. § 1.7.

[^42]: Funding Commitment Decision Letter at 1.

[^43]: *See* *Request for Review by Springfield Public Schools,
    Federal-State Joint Board on Universal Service, Changes to the Board
    of Directors of the National Exchange Carrier Association, Inc.*,
    File No. SLD-152238, CC Dockets No. 96-45 and 97-21, Order, 15 FCC
    Rcd 18893, 18894, n. 4 (Accnt. Pol. Div., Com. Car. Bur. 2000).