FCC Grants More Applicant-Friendly Appeals
Message Posted November 6, 2008
Last week the FCC issued 287 applicant-friendly appeal decisions, keeping with their recent tradition of granting appeals where unintentional, non-fraudulent mistakes were made. The most significant decisions dealt with applicants that filed their Form 471s after the deadline, RFP violations, Tennessee Test reclassifications from priority 1 to priority 2, and bundled telecommunications/internet access services that are provided by a non-eligibile telecommunications provider. The other major appeal decision was named after a Pennsylvania school district -- Canon McMillan -- and granted appeals where BEARs were submitted after the invoice deadline.
The lesson to be learned with these decisions is that E-rate errors resulting in funding reductions or denials should always be appealed. Appeal to the SLD first, and if unsuccessful, appeal to the FCC - even if the deadline to appeal has expired.
Below is a summary of the more important appeal decisions from last week, as prepared by E-rate Central. When appealing to the SLD or FCC, it is always helpful to cite a previous FCC appeal decision as the basis for your appeal argument.
Cannon-McMillan School District, et al (DA 08-2385): The FCC granted 20 appeals in which invoice forms were untimely filed and/or received. Essentially, the FCC is indicating that USAC should be more flexible in granting invoice deadline extensions when the untimely filings were caused by “staff changes or inadvertent errors.” The FCC emphasized “…that these applicants missed a procedural deadline and did not violate a substantive rule.”
Acorn Public Library District, et al (DA 08-2376): The FCC agreed to waive the Form 471 filing window deadline for 78 applicants under the following two conditions: (a) the applicant’s Form 471 was filed within 14 days of the close of the window, or (b) the filing was delayed as the result of illness or death of the applicant’s E-rate staff or a death in the family. The following two points should be noted:
-- This decision does not give the SLD authority to accept late filed Form 471s meeting either of these two conditions. It does, however, set a precedent indicating that FCC waivers sought by other similarly affected applicants will eventually be approved.
-- The FCC did not deny appeals by other applicants who missed the Form 471 deadline for other reasons. While this decision suggests that many of these other appeals will be denied, technically they remain pending
Adams County Public Library, et al (DA 08-2377): The FCC approved seven appeals in which the applicants argued that the SLD had improperly reclassified on-premise Priority 1 equipment to Priority 2 under the seven strict conditions of the Tennessee Order (see http://www.universalservice.org/sl/applicants/step06/on-premise-priority1-equipment.aspx#2). One interesting case involved a lease-purchase contract, which violates one of those conditions. The FCC ruled, however, that such a provision, alone, is not a determining factor. Rather, the FCC indicated that the provision is but one “indicia” of Priority 2 status. This decision is likely to make SLD decisions on the correct categorization of on-premise equipment more complicated.
Approach Learning and Assessment Centers, et al (DA 08-2380): The twelve appeals covered by this decision all dealt with Form 470s indicating that there were no RFPs, whereas in fact there were. FCC approval of these appeals was on a case-by-case basis, but does indicate that future appeals might be similarly approved. In nine of the cases, the FCC concluded that: “Despite petitioners’ failure to correctly indicate on the Forms 470 whether they had issued an RFP, we find that all bidders were on a level playing field. The petitioners’ FCC Forms 470 contained enough detail for service providers…and it appears that all interested bidders also had access to whatever additional information petitioners provided in the auxiliary documents.”
Addison Northeast Supervisory Union, et al (DA 08-2378); Bay Shore Union Free School District, et al (DA 08-2383); and Broaddus Independent School District, et al (DA 08-2384): All three decisions, involving 30 appeals, deal primary with the requirement that discounted Telecommunications services can be received only from Eligible Telecommunications Providers (“ETPs”). The decisions make two key points.
-- The SLD should not deny Telecommunications funding simply because the carrier was not properly registered with USAC as an ETP. Indeed, the SLD is instructed “…to process the applications if it can verify that the providers used were actually [ETPs] during the period for which the applicants sought E-rate discounts…”
-- In instances in which an applicant applies for Internet Access, but is later found to have received broader Telecommunications services from a non-ETP, the SLD was instructed to allocate the service between Internet Access and Telecommunications, and to process the Internet Access portion.
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