E-Rate Modernization Comment Periods:
The following three E-rate-related FCC proceedings — two with initial comments due this week — are currently out for public comment:
- Comments on the Further Notice of Proposed Rulemaking (“FNPRM”), issued as a part of the first E-rate modernization Order (FCC 14-99), are due September 15th; reply comments are due September 30th. (See our newsletter of August 4, 2014.)
- Comments on the draft Eligible Services List (“ESL”) for FY 2015 (DA 14-1130) are due September 3rd; reply comments are due September 18th. (See our newsletter of August 11, 2014.)
- Comments on the Tenth Broadband Progress Notice of Inquiry (FCC 14-113) are due September 4th; reply comments are due September 19th.
FCC Appeal Decision Watch:
The FCC denied and/or dismissed (FCC 14-127) all aspects of an application for review filed by Yakutat School District seeking a waiver of the FY 2011 Form 471 filing deadline. The decision is interesting in part because it demonstrates the extent to which the FCC’s appeal process permits multiple stages for review, albeit with subsequently lower probabilities of success.
As we discussed in our newsletter of August 25, 2014, the FCC has historically granted application window waivers for applicants missing the deadline by 14 days or less. Waivers for late-filed applications beyond 14 days have been approved only under extraordinary circumstances.
In this case, Yakutat had filed its application 18 days late. The district’s initial waiver request, pointing to a change in personnel, was rejected as not meeting the special circumstances test. A subsequent petition for reconsideration was rejected for not meeting the FCC’s 30-day filing deadline. A second petition for reconsideration was also rejected for not presenting any new arguments of substance. All these denials were issued under delegated authority by the Wireline Competition Bureau. The district then filed another appeal seeking a review by the full Commission. In it, the district raised several new arguments, namely:
- The E-rate process is complicated, and that the failure to file a timely application was an error of a clerical and ministerial nature that should be correctable under FCC precedent. The FCC rejected this argument.
- The denial of funding will have an adverse effect on the district. The FCC rejected this argument (as it has in many other cases).
- The 14-day waiver window cutoff is arbitrary and unduly harsh to small rural applicants with limited resources. Yakutat proposed that the FCC should grant 28-day waivers for schools with fewer than 200 students. The FCC rejected this small school proposal.
- The 30-day deadline for filing a petition for reconsideration should be based on the date the applicant received the initial letter of denial rather than on the date of the denial itself. The FCC rejected this argument as well, noting that the denial becomes public on the date of its release.
A second FCC decision (DA 14-1256) on application window deadlines was more straight-forward and “consistent with precedent.” It granted five requests for waivers for applications filed within 14 days of the deadlines, including two whose certifications or Item 21 attachments were filed later. Conversely, the FCC denied thirteen waiver requests for applications filed more than 14 days late, and dismissed four petitions for reconsideration.
In separate non-appeal actions, the FCC released notices of suspensions and initiations of E-rate debarment proceedings against three individuals who had pled guilty of conspiring to defraud the E-rate program. All three cases (English, Freeman, and Styles) involved competitive bidding and fraudulent invoicing violations.
USAC Appoints CEO:
USAC announced the appointment, and the FCC Chairman’s confirmation, of Chris Henderson as USAC’s Chief Executive Officer (“CEO”) effective September 3rd. According to USAC’s press release, “Henderson began his career in investment banking and private equity, where he spent fifteen years, before joining the Mayor of Denver's senior management team as Chief Operating Officer (COO). He then served as Senior Advisor to Secretary Salazar at the U.S. Department of the Interior where he led the Department’s administration of $3 billion in Recovery Act funds and reorganization of the Minerals Management Service following the Gulf oil spill. Most recently, Henderson served as Director/Chief Operating Officer at ASI Government, a provider of consulting services to the federal government.”
Mr. Henderson succeeds Scott Barash, who had served for many years as USAC’s Acting CEO until his departure last February, and Richard Belden, USAC’s COO, who had served as interim CEO for the past six months.