[Federal Register Volume 85, Number 183 (Monday, September 21, 2020)]
[Rules and Regulations]
[Pages 59196-59198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20899]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[CC Docket No. 02-6; DA 20-1091; FRS 17084]


Schools and Libraries Universal Service Support Mechanism

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Wireline Competition Bureau (Bureau) 
adopts, on an emergency basis, temporary rules to provide immediate 
relief to schools that participate in the E-Rate program as they 
continue to contend with the ongoing disruptions caused by the 
pandemic. These temporary rules make available additional E-Rate 
funding to schools in funding year 2020 to purchase additional 
bandwidth needed to meet the unanticipated and increased demand for on-
campus connectivity resulting from the COVID-19 pandemic.

DATES: Effective September 21, 2020.

FOR FURTHER INFORMATION CONTACT: Kate Dumouchel, Wireline Competition 
Bureau, (202) 418-7400 or TTY: (202) 418-0484.

SUPPLEMENTARY INFORMATION: This is a summary of the Bureau's Order in 
CC Docket No. 02-6; DA 20-1091, adopted on September 16, 2020 and 
released on September 16, 2020. Due to the COVID-19 pandemic, the 
Commission's headquarters will be closed to the general public until 
further notice. The full text of this document is available at the 
following internet address: https://www.fcc.gov/document/fcc-opens-second-e-rate-application-window-funding-year-2020.

I. Introduction

    1. Schools across the United States continue to face unprecedented 
disruptions and challenges due to the coronavirus (COVID-19) pandemic. 
As the school year begins, many school districts are relying on remote 
learning, either in whole or in part, to educate students. This 
heightened reliance on remote learning has dramatically increased 
demand on school networks, creating an urgent need for additional 
bandwidth this school year.
    2. Consistent with the relief the Federal Communications Commission 
(Commission) has previously provided to schools affected by natural 
disasters as well as recent actions the Commission has taken in 
response to the COVID-19 pandemic, the Bureau adopts, on an emergency 
basis, temporary rules to provide immediate relief to schools that 
participate in the E-Rate program as they continue to contend with the 
ongoing disruptions caused by the pandemic. These temporary rules make 
available additional E-Rate funding to schools in funding year 2020 to 
purchase additional bandwidth needed to meet the unanticipated and 
increased demand for on-campus connectivity resulting from the 
pandemic.
    3. Specifically, given the urgent need for additional bandwidth 
this funding year and subject to the limitations set forth in the 
following, the Bureau directs the Universal Administrative Service 
Company (USAC) to open a second funding year 2020 filing window to 
allow schools to request additional funding for this limited purpose 
without having to undergo a new competitive bidding process. This 
window shall open September 21, 2020 and close on October 16, 2020. As 
explained in the following, the Bureau finds that the exigent 
circumstances faced by the schools contending with this full or partial 
shift to remote learning constitute good cause to adopt these temporary 
rules without notice and comment.

II. Discussion

    4. Recognizing the many challenges facing schools as they shift to 
full or partial remote learning during this school year, the Bureau 
directs USAC to open a second funding year 2020 application window to 
allow schools to request additional E-Rate discounts for the limited 
purpose of purchasing additional bandwidth to meet the unanticipated 
and increased demand for on-campus connectivity, subject to the 
parameters and limitations in the Order. Specifically, in light of the 
extraordinary and unforeseeable changes our nation's schools are facing 
since the start of the COVID-19 pandemic, and consistent with the 
Commission's prior actions in response to this unprecedented public 
health emergency and other extreme circumstances caused by natural 
disasters, the Bureau adopts temporary rules to allow schools needing 
more bandwidth to request additional E-Rate support without conducting 
a new competitive bidding process for bandwidth provided in funding 
year 2020.
    5. Second Funding Year 2020 Application Window. The second funding 
year 2020 application window shall open September 21, 2020 and will 
remain open through October 16, 2020. The Bureau finds that this window 
will provide enough time for applicants participating in the second 
funding year 2020 application window--many of which have already 
contracted for additional bandwidth before the school year began--to 
apply for additional E-Rate discounts for funding year 2020 and, to the 
extent necessary, complete any competitive bidding that may be required 
under state and local laws.
    6. In keeping the window open only through October 16, 2020, the 
Bureau also balances the need to provide immediate relief to applicants 
requiring additional bandwidth in funding year 2020 with its obligation 
to ensure the efficient administration of the E-Rate program, including 
minimizing any potential delays in opening the funding year 2021 
administrative and regular application windows. Given the upcoming 
changes to the category two budget rules beginning in funding year 
2021, the Bureau anticipates that applicants will need as much time as 
possible during the funding year 2021 administrative window to make 
necessary updates to their student count numbers for category two 
budget purposes. Thus, the Bureau seeks to avoid further delaying the 
opening of the administrative window by closing this second funding 
year 2020 filing window before that occurs. Both windows cannot be open 
at the same time. The Bureau expects demand for E-Rate funding to 
remain well below the cap for funding year 2020.
    7. Eligible Services. During this second funding year 2020 
application window, schools may only request E-Rate discounts for 
additional on-campus category one internet access and/or data 
transmission services needed as a result of the COVID-19 pandemic. The 
Bureau

[[Page 59197]]

limits the eligible services to narrowly tailor this competitive 
bidding exemption and relief to the most pressing issue facing schools. 
Consistent with section 254 of the Telecommunications Act directive 
that E-Rate may only be used to ``enhance . . . access to advanced 
telecommunications and information services for . . . school 
classrooms,'' the Bureau reminds applicants that off-campus use of 
eligible services, even if used for an educational purpose, is 
ineligible for support. If eligible based on the competitive bidding 
exemption outlined in the following, applicants may request discounts 
on services already provided in funding year 2020 as early as July 1, 
2020.
    8. Competitive Bidding. Competitive bidding is a cornerstone of the 
E-Rate program, ensuring that applicants are informed of their options 
and service providers have sufficient information to provide services, 
leading to cost-effective pricing, and guarding against waste, fraud, 
and abuse. The Bureau recognizes, however, that schools could not have 
anticipated the need for additional bandwidth when they competitively 
bid for services and submitted their applications during the initial 
funding year 2020 application window and that many are now facing 
tremendous connectivity challenges as the school year begins. To help 
them meet this urgent need, the Bureau will allow applicants to request 
E-Rate discounts for their bandwidth increases without conducting 
additional competitive bidding subject to the limitations in the 
following, while setting a limit on the price per megabit applicants 
request to serve as a safeguard against wasteful spending.
    9. Specifically, schools may submit an FCC Form 471 during the 
second funding year 2020 application window requesting E-Rate discounts 
without initiating a new competitive bidding process for the requested 
services if the applicant: Already sought bids for the services by 
posting an FCC Form 470; received a Funding Commitment Decision Letter 
from USAC approving a funding year 2020 funding request for eligible 
category one internet access and/or data transmission services that 
relied on that FCC Form 470, or has such a funding request pending; and 
requests additional E-Rate discounts during the second application 
window to purchase additional bandwidth through the existing service 
provider or a new one. For the purposes of this second funding year 
2020 application window only, USAC shall grant funding requests from 
applicants seeking funding where the price per megabit is the same or 
less than the original contract. Alternatively, if the price per 
megabit is higher than the original contract, USAC will limit the 
funding commitment to the price per megabit in the original contract. 
This temporary exemption to the Commission's competitive bidding rules 
does not relieve service providers of their obligation to offer the 
lowest corresponding price for services. The Commission also recognizes 
that many states and localities have waived local procurement rules in 
light of COVID-19. To the extent they have not, applicants may post an 
FCC Form 470 if necessary, to comply with local laws.
    10. The Bureau's action is intended to expedite the ability of 
schools in urgent need of additional bandwidth to request funding and 
thereby continue providing vital educational services to students 
during this pandemic. Applicants that wish to apply for this funding 
opportunity must submit the following information in the narrative 
section of the new FCC Form 471 funding request: The identification 
numbers for the funding year 2020 FCC Form 471 and funding request that 
previously relied on the FCC Form 470; and a statement confirming that 
the requested E-Rate discounts are for additional bandwidth needed as a 
result of COVID-19. To facilitate and expedite USAC's review, 
applicants are required to provide additional information in the 
narrative section about the price per megabit in the original and new 
funding requests and highlight any difference in pricing.
    11. Preventing Waste, Fraud, and Abuse. The Bureau is committed to 
guarding against waste, fraud, and abuse in the Universal Service Fund 
(USF) programs. Accordingly, all relief granted by the Order is subject 
to the limitations stated herein and conditioned upon compliance with 
all E-Rate program rules that are not specifically modified in this 
document. The Bureau requires all eligible E-Rate program participants 
to retain records documenting the services that they receive pursuant 
to the temporary rules described and consistent with the document 
retention rules. Applicants and service providers requesting E-Rate 
support during the second funding year 2020 application window are 
responsible for maintaining records that demonstrate their compliance 
with the temporary rules. Although the Bureau grants the temporary 
rules described in this document, program participants and service 
providers remain otherwise subject to audits and investigations to 
determine compliance with USF program rules and requirements. The 
Bureau will require USAC to recover funds through its normal process 
that the Bureau discovers were not used properly. The Bureau emphasizes 
that it retains the discretion to evaluate the uses of monies disbursed 
through the USF programs and to determine on a case-by-case basis that 
waste, fraud, or abuse of program funds occurred, and that recovery is 
warranted. Additionally, in the event the Bureau discovers any improper 
activity resulting from its action in this document, the Bureau will 
subject the offending party to all available penalties at its disposal, 
and will direct USAC to recover funds, assess retroactive fees and/or 
interest, or both. The Bureau remains committed to ensuring the 
integrity of the E-Rate programs and will continue to aggressively 
pursue instances of waste, fraud, or abuse under its own procedures and 
in cooperation with law enforcement agencies.
    12. Effective Date. Section 553 of the Administrative Procedure Act 
(APA) permits an agency to implement rules without public notice and 
opportunity for comment ``when the agency for good cause finds . . . 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' As explained, the 
COVID-19 pandemic has caused unforeseeable changes to the bandwidth 
demands at schools, creating an urgent and immediate need for the 
relief provided by the Order. While public notice requirements are an 
essential part of the Commission's rulemaking process, the school year 
is already underway, and schools need immediate action to make 
necessary plans and preparations for both this school year and the 
submission of their requests for E-Rate support for funding year 2021. 
The temporary rules that the Bureau adopts herein provide an efficient 
mechanism to assist schools as they face huge disruptions and financial 
challenges due to the pandemic that were unanticipated when E-Rate 
applicants sought discounts for services for funding year 2020, but are 
also narrowly tailored to allow for an efficient second application 
window without jeopardizing regular program funding or administration 
for funding year 2021. The Bureau's action in this document is also 
consistent with the statutory mandate of the E-Rate program to enhance 
``access to advanced telecommunications and information services'' to 
schools and furthers the public interest to provide discounts for 
needed eligible services, particularly to those applicants that could 
not have known that they would require this

[[Page 59198]]

additional bandwidth during the competitive bidding process leading up 
to the initial funding year 2020 application window and when demand for 
E-Rate funding is well below the cap for funding year 2020. The Bureau 
finds, therefore, that good cause exists to forgo notice and comment on 
these rules.
    13. For similar reasons, the Bureau finds that there is good cause 
to make the temporary rules adopted by the Order effective immediately 
upon publication in the Federal Register. Although rules generally must 
be published at least 30 days before they become effective, the APA and 
the Commission's rules make an exception ``for good cause found and 
published with the rule.'' Given the unprecedented and immediate need 
for additional bandwidth presented by the COVID-19 pandemic, along with 
the fact that the instructional year has already begun, it is crucial 
that the Bureau begins offering relief as soon as possible. In 
addition, the Bureau finds that delaying the opening of the second 
application window would delay the opening of the funding year 2021 
administrative and application windows, resulting in slowdowns in the 
regular E-Rate program administration, with potentially adverse 
spillover effects.

III. Procedural Matters

A. Paperwork Reduction Act

    14. This document does not contain new or modified information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA), Public Law 104-13. In addition, therefore, it does not contain 
any new or modified information collection burden for small business 
concerns with fewer than 25 employees, pursuant to the Small Business 
Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 
3506(c)(4).

B. Congressional Review Act

    15. The Commission has determined, and the Administrator of the 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, concurs that this rule is non-major under the Congressional 
Review Act, 5 U.S.C. 804(2). The Commission will send a copy of the 
Order to Congress and the Government Accountability Office pursuant to 
the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

IV. Ordering Clauses

    16. Accordingly, it is ordered that, pursuant to the authority 
contained in Sections 4(i), 4(j), and 254 of the Communications Act of 
1934, as amended, 47 U.S.C. 151, 154(i), and 254 the Order is adopted, 
and the temporary rules shall become effective September 21, 2020, 
pursuant to 5 U.S.C. 553(d)(3); 47 CFR 1.427(b).

Federal Communications Commission.
Daniel Kahn,
Associate Chief, Wireline Competition Bureau.
[FR Doc. 2020-20899 Filed 9-18-20; 8:45 am]
BILLING CODE 6712-01-P