[Federal Register Volume 68, Number 13 (Tuesday, January 21, 2003)]
[Notices]
[Pages 2769-2770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1175]


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FEDERAL COMMUNICATIONS COMMISSION

[CC Docket Nos. 96-45, 97-21; FCC 02-315]


Application for Review by Henrico County School District, 
Richmond, Virginia; Federal-State Joint Board on Universal Service; 
Changes to the Board of Directors of the National Exchange Carrier 
Association, Inc.

AGENCY: Federal Communications Commission.

ACTION: Notice.

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SUMMARY: In this document, the Commission denies the application for 
review seeking review of an Order issued by the Common Carrier Bureau 
(Bureau) on delegated authority and affirm the decision of the Bureau. 
In the Order, the Bureau upheld the decision of the Schools and 
Libraries Division of the Universal Service Administrative Company, 
which denied Henrico County School District's Funding Year 1999 
application for discounts under the schools and libraries universal 
service mechanism.

FOR FURTHER INFORMATION CONTACT: Narda Jones, Attorney, 
Telecommunications Access Policy Division, Wireline Competition Bureau, 
(202) 418-7400, TTY: (202) 418-0484.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order 
in CC Docket Nos. 96-45 and 97-21 released on November 20, 2002. The 
full text of this document is available for public inspection during 
regular business hours in the FCC Reference Center, Room CY-A257, 445 
Twelfth Street, SW., Washington, DC, 20554.
    1. Before the Commission is an application for review filed by 
Henrico County Public Schools (Henrico), Richmond, Virginia, seeking 
review of an Order issued by the Common Carrier Bureau (Bureau) on 
delegated authority. In the Order, the Bureau upheld the decision of 
the Schools and Libraries Division (SLD) of the Universal Service 
Administrative Company, which denied Henrico's Funding Year 1999 
application for discounts under the schools and libraries universal 
service mechanism. For the reasons set forth below, we deny the 
application for review and affirm the decision of the Bureau.
    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. 
In order to receive discounts on eligible services, the Commission's 
rules require that the applicant 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. 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. 
Approval of the application is contingent upon the filing of FCC form 
471, and funding commitment decisions are based on information provided 
by the school or library in this form.
    3. On March 29, 2000, Henrico filed an FCC form 471 for Funding 
Year 1999 including 10 funding requests, each seeking discounted 
internal connections. It did not file an FCC form 470 in Funding Year 
1999. Henrico's FCC form 471 referenced FCC form 470 App. No. 
952970000283996, a Funding Year 2000 form 470 that was posted to SLD's 
website on December 20, 1999 (Year 2000 form 470). Henrico also relied 
on this Year 2000 form 470 in support of its Funding Year 2000 
applications for discounts, which were filed on January 19, 2000. On 
July 17, 2000, SLD rejected Henrico's Funding Year 1999 application for 
discounts because Henrico had not specified a Funding Year 1999 FCC 
form 470 in connection with its Funding Year 1999 funding requests. 
Henrico then sought review of this SLD decision.
    4. Before the Bureau, Henrico argued that reliance on a Funding 
Year 2000 FCC form 470 in support of a Funding Year 1999 service 
request was permissible because ``[n]owhere in your correspondence, 
procedures or instructions does it stipulate that the [Funding Year 
1999] application must be based on a [Funding Year 1999] 470 form.'' 
The Bureau found, however, that, with one exception inapplicable to 
Henrico, an FCC form 470 seeking services in one year could not be used 
to satisfy the requirement of competitive bidding for service requests 
in another Funding Year.
    5. In its application for review before the Commission, Henrico 
argues that it should be permitted to rely on the Funding Year 2000 
form 470 because, at the time it electronically posted its FCC form 470 
for Funding Year 1999, SLD had switched to an on-line application 
system for Funding Year 2000 that only permitted the posting of Funding 
Year 2000 FCC form 470s. Henrico asserts that it was therefore 
``impossible to post a Year [1999] form 470 to the SLD website,'' and 
argues that its Funding Year 1999 application should therefore not be 
denied for its failure to do so.
    6. Section 1.115(c) of the Commission's Rules provides that ``[n]o 
application for review will be granted if it relies on questions of 
fact or law upon which the designated authority has been afforded no 
opportunity to pass.'' We find that Henrico did not raise its present 
argument in the request for review to the Bureau. In that pleading, 
Henrico merely asserted that, under program procedures, it was not 
required to use a Funding Year 1999 FCC form 470 to post a Funding Year 
1999 service request. Now it argues that using a Funding Year 1999 FCC 
form 470 was impossible at the specific time during which it sought to 
post a request. The former argument asserts a general right to use a 
Funding Year 2000 form to post Funding Year 1999 requests, while the 
latter argument suggests such use should be deemed permissible under 
the limited circumstances present at the

[[Page 2770]]

end of Funding Year 1999. Similarly, the factual bases for the current 
argument, including the limited circumstances just mentioned, and the 
assertion that these circumstances made posting a Funding Year 1999 
request ``impossible,'' were also not presented below. Accordingly, 
because Henrico did not raise these factual and legal questions in its 
request for review before the Bureau, consideration of these arguments 
by the Commission is precluded by Sec.  1.115(c).
    7. Further, even if we were to consider the merits of this 
argument, we would still deny the application for review. First, the 
record demonstrates that Henrico's Funding Year 2000 FCC form 470 was 
clearly intended to support its Funding Year 2000 applications for 
funding. Henrico submitted two Funding Year 2000 FCC forms 471 
applications seeking Funding Year 2000 discounts. Each application 
referenced FCC form 470 App. No. 952970000283996 as the supporting form 
470. On September 29, 2000, SLD approved Henrico's Funding Year 2000 
App. No. 188486. SLD denied Henrico's Funding Year 2000 App. No 165166 
because this application sought support for internal connections and 
the funding cap could not accommodate applicants, such as Henrico, that 
were entitled to less than an 81 percent discount in Funding Year 2000.
    8. Further, it would appear that Henrico's requested relief would 
work at cross purposes to its already secured funding for Funding Year 
2000. Were we to construe the FCC form 470 App. No. 952970000283996 as 
a Funding Year 1999 FCC form 470, thus supporting funding of Henrico's 
Funding Year 1999 FCC form 471, it would also establish that Henrico's 
successful Funding Year 2000 application violated our competitive 
bidding regulations. This application sought new services in Funding 
Year 2000, which needed to be posted for bidding by a Funding Year 2000 
FCC form 470 to comply with our competitive bidding rules.
    9. Moreover, it is true that, after October 25, 1999, because SLD 
switched its on-line application system from one designed to process 
Funding Year 1999 applications to one designed for Funding Year 2000, 
applicants seeking to file FCC form 470 posting requests for services 
in Funding Year 1999 were forced to use the on-line system for Funding 
Year 2000 to do so. However, at the same time that USAC gave applicants 
official notice of the availability of additional funds on March 1, 
2000, it also instructed applicants how to apply for Funding Year 1999 
funds with the Funding Year 2000 form 470s. Specifically USAC directed 
applicants to indicate on their Year 2000 forms 470 that they were 
seeking services for Funding Year 1999. Forms 470 so designated were 
included in a list posted on the website separate from the Funding Year 
2000 FCC forms 470, and SLD took special steps to ensure that providers 
were made aware that there were FCC form 470s seeking Funding Year 1999 
services that were not included among the FCC form 470s posted in the 
on-line Funding Year 1999 location.
    10. Thus, contrary to Henrico's assertion, it was not 
``impossible'' to post a request for services in Funding Year 1999. 
Henrico, having already posted a Funding Year 2000 FCC form 470 on 
December 19, 1999, that did not specify its intention to seek Funding 
Year 1999 funds, had ample opportunity, after March 1, 2000, to 
resubmit its Year 2000 form 470 with a notation that the form was 
seeking Funding Year 1999 funds as USAC instructed. In fact, numerous 
applicants successfully posted their Funding Year 1999 requests for 
services using the Funding Year 2000 on-line application system. 
Therefore, while the absence of a Funding Year 1999 on-line system 
certainly justified applicants using the Funding Year 2000 system to 
post their Funding Year 1999 requests for bidding, it does not excuse 
applicants who made no attempt to post Funding Year 1999 requests at 
all. Here, Henrico made no such attempt to post Funding Year 1999 
services. Henrico seeks to rely on an FCC form 470 that it concedes 
actually requested services in Funding Year 2000 and on which Henrico 
in fact relied on to support its subsequent successful Funding Year 
2000 FCC form 471 application. Consequently, we conclude that the 
circumstances to which Henrico refers would not support relief in this 
case.
    11. It is ordered, pursuant to section 5(c)(5) of the 
Communications Act of 1934, as amended, and Sec.  1.115 of the 
Commission's rules, that the application for review filed by Henrico 
County Public Schools, Richmond, Virginia, on March 5, 2002 is denied.

Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 03-1175 Filed 1-17-03; 8:45 am]
BILLING CODE 6712-01-P