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Federal Communications Commission

DA 12-1525

Before the

Federal Communications Commission

Washington, DC 20554

In the Matter of
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Request for Waiver by
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Missoula Public Library
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File No. SLD-58189
Missoula, Montana
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Schools and Libraries Universal Service
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CC Docket No. 02-6
Support Mechanism
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ORDER

Adopted: September 26, 2012

Released: September 26, 2012

By the Chief, Telecommunications Access Policy Division, Wireline Competition Bureau:
1.
Consistent with precedent,1 we grant a request for waiver filed by Missoula Public
Library (Missoula).2 Missoula requested a waiver of the Commission’s rules regarding the timely
submission of an appeal of a decision by the Universal Service Administrative Company (USAC) to the
Commission after USAC denied Missoula’s appeal of a commitment adjustment (COMAD) decision
letter seeking to recover funds disbursed to Missoula under the E-rate program (more formally known as
the schools and libraries universal service support program) for funding year 1998.3


1 See Requests for Review and/or Waiver of Decisions of the Universal Service Administrator by Albuquerque
School District, et al., Schools and Libraries Universal Service Support Mechanism, File Nos. SLD-548427, et al.,
CC Docket No. 02-6, Order, 26 FCC Rcd 5878 (Wireline Comp. Bur. 2011) (waiving the Commission’s filing
deadline for six applicants because the Bureau found that these applicants could not submit their appeals to the
Commission in a timely manner due to circumstances beyond their control or because the petitioner submitted its
appeal to USAC within a reasonable period of time after receiving actual notice of USAC’s adverse decision); In the
Matter of Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Order on Remand, 16 FCC Rcd
571 (2000) (Iowa Communications Network (ICN) Order on Remand) (finding that ICN was a telecommunications
carrier and thus could receive direct reimbursement for the provision of discounted telecommunications services to
schools and libraries); Request for Review of Decisions of the Universal Service Administrator by Iowa Department
of Education, Adair-Casey Community School District, et al., Schools and Libraries Universal Service Support
Mechanism, File Nos. SLD-108160, et al., CC Docket No. 02-6, Order, DA 12-788 (Wireline Comp. Bur. rel. Aug.
21, 2012) (finding that the Commission’s decision in the ICN Order on Remand that ICN was a telecommunications
carrier should apply retroactively to funding years 1998 through 2000).
2 See Letter from Bette Ammon, Missoula Public Library, to Federal Communications Commission, CC Docket No.
02-6 (filed Feb. 9, 2005) (Request for Waiver). Section 54.719(c) of the Commission’s rules provides that any
person aggrieved by an action taken by a division of USAC may seek review from the Commission. 47 C.F.R. §
54.719(c).
3 See Request for Waiver; 47 C.F.R. § 54.720(a) (requiring an affected party to submit an appeal to the Commission
within 60 days of the issuance of a decision by a division of USAC). See also Letter from USAC, Schools and
Libraries Division, to Bette Ammon, Missoula Public Library (dated Jan. 24, 2003) (Administrator’s Decision on
Appeal).

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Federal Communications Commission

DA 12-1525

2.
As an initial matter, we waive the appeal filing deadline in the instant matter because we
find that Missoula did not receive notice of USAC's COMAD recovery decision until after the appeal
deadline passed and promptly filed its appeal within 12 days of receiving actual notice of USAC's
decision.4 Thus, we find that Missoula made a good faith effort to comply with the Commission’s rules
as soon as it realized that USAC had issued a decision. Accordingly, we waive the 60-day deadline for
filing appeals in section 54.720 of the Commission’s rules.5
3.
Moreover, we find that a waiver of the filing deadline in the instant matter is in the public
interest so that USAC can reconsider its decision in light of the Commission’s ICN Order on Remand.6
In October 1999, USAC notified Missoula that it sought recovery of improperly disbursed funds because
Missoula’s service provider, Missoula County Department of Communications (MCC), was not a
telecommunications carrier and was therefore ineligible to provide telecommunications services under the
E-rate program.7 It appears from the record that USAC determined that MCC was not a
telecommunications carrier because MCC did not offer its services to the public.8 The Commission had
taken the position that state-owned telecommunications networks that offer their services only to
governmental entities were not telecommunications carriers, because they do not offer their services to
the public.9 However, during the pendency of Missoula’s appeal to USAC, the Commission issued the
ICN Order on Remand, holding that a state-owned telecommunications network would be considered a
telecommunications carrier if it: (1) served its statutorily-prescribed customers indifferently;10 and (2)
allowed those customers to transmit intelligence of their own design and choosing.11 In light of the


4 See supra n.1. Generally, the Commission’s rules may be waived if good cause is shown. 47 C.F.R. § 1.3. The
Commission may exercise its discretion to waive a rule where the particular facts make strict compliance
inconsistent with the public interest. Northeast Cellular Telephone Co. v. FCC, 897 F.2d 1164, 1166 (D.C. Cir.
1990) (Northeast Cellular). In addition, the Commission may take into account considerations of hardship, equity,
or more effective implementation of overall policy on an individual basis. WAIT Radio v. FCC, 418 F.2d 1153,
1159 (D.C. Cir. 1969); Northeast Cellular, 897 F.2d at 1166. Waiver of the Commission’s rules is appropriate only
if both (i) special circumstances warrant a deviation from the general rule, and (ii) such deviation will serve the
public interest. NetworkIP, LLC v. FCC, 548 F.3d 116, 125-128 (D.C. Cir. 2008); Northeast Cellular, 897 F.2d at
1166. See Request for Waiver.
5 See 47 C.F.R. § 54.720.
6 See ICN Order on Remand.
7 See Letter from USAC, Schools and Libraries Division, to Bette Ammon, Missoula Public Library (dated Oct. 8,
1999) (USAC Letter). Subsequently, USAC granted an appeal by Missoula in part by reducing the amount to be
recovered to $3,423.90. See Administrator’s Decision on Appeal at 1-2. Specifically, USAC reduced the recovery
amount to reflect only funds disbursed for the services provided by MCC. Id.
8 In order to be considered a “telecommunications carrier” eligible to receive E-rate support for the provision of
“telecommunications services” a provider must “offer telecommunications on a common carrier basis.” ICN Order
on Remand, 15 FCC Rcd at 572, para. 2. The Commission has articulated a two part test to determine whether an
entity is offering telecommunications on a common carrier basis, first, whether the provider holds itself out “to serve
indifferently all potential users” and second whether it “allows customers to transmit intelligence of their own
design and choosing. Id. at para. 5.
9 See Federal-State Joint Board on Universal Service, CC Docket No. 96-45, Declaratory Ruling, 14 FCC Rcd
3040, 3041, para. 2 (1999).
10 In the ICN Order on Remand, the Commission stated that legal restrictions on eligibility to use a carrier’s services
do not necessarily prohibit an entity from being considered a common carrier. See ICN Order on Remand, 15 FCC
Rcd at 572, para. 8.
11 Id. at 575, para. 14.
2

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Federal Communications Commission

DA 12-1525

Commission’s decision in the ICN Order on Remand, we remand MCC’s appeal to USAC for a
determination as to whether MCC was in fact a telecommunications carrier because it provided service to
its statutorily-prescribed customers indifferently and permitted those customers to transmit
intelligence/service of their own design and choosing.
4.
ACCORDINGLY, IT IS ORDERED, pursuant to authority contained in sections 1-4 and
254 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154 and 254, and pursuant to
authority delegated in sections 0.91, 0.291, 1.3 and 54.722(a) of the Commission’s rules, 47 C.F.R. §§
0.91, 0.291, 1.3 and 54.722(a), that the request for waiver filed by Missoula Public Library on January 4,
2005 IS GRANTED and the underlying application IS REMANDED to USAC for further action
consistent with the terms of this order.
5.
IT IS FURTHER ORDERED, pursuant to authority contained in sections 1-4 and 254 of
the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154 and 254, and pursuant to authority
delegated in sections 0.91, 0.291, 1.3 and 54.722(a) of the Commission’s rules, 47 C.F.R. §§ 0.91, 0.291,
1.3 and 54.722(a), that section 54.720 of the Commission’s rules, 47 C.F.R. § 54.720, IS WAIVED to the
limited extent provided herein.
6.
IT IS FURTHER ORDERED, pursuant to the authority contained in sections 1-4 and 254
of the Communications Act of 1934, as amended, 47 U.S.C. §§ 151-154 and 254, and pursuant to
authority delegated in sections 0.91 and 0.291 of the Commission’s rules, 47 C.F.R. §§ 0.91 and 0.291,
that USAC SHALL discontinue its recovery actions against Missoula Public Library and SHALL
COMPLETE its review of the underlying application and ISSUE a revised COMAD letter to Missoula
County Department of Communications no later than 60 calendar days from the release date of this order.
FEDERAL COMMUNICATIONS COMMISSION
Trent B. Harkrader
Chief
Telecommunications Access Policy Division
Wireline Competition Bureau
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