Lawyer Article

Womble Carlyle attorneys Howard Barr and Mark Palchick closely follow the FCC's E-Rate decisions. Click here for a library of previous memos about E-rate decisions.

The Commission recently released on Order granting Hickory (NC) Public Schools' ("Hickory") Request for Review of a Universal Service Administrative Company ("USAC") decision denying Hickory discounted services for Funding Year 2004 under the schools and libraries universal service support mechanism. Following is a summary of the Order:

Hickory had sought E-rate program funding for six internal connections funding requests from two service providers. On December 3, 2004, USAC mailed Funding Commitment Decision Letters ("FCDLs") notifying Hickory that the requests were "As Yet Unfunded." On January 11, 2005, USAC issued FCDLs notifying Hickory that its requests for funding were granted. Hickory contended that it received the December FCDLs but not the January FCDLs. It only learned that its requests had been funded on October 17, 2005 when searching for USAC’s Funding Year 2005 funding decisions. On October 20, 2005, Hickory filed FCC Forms 486 for the six funding requests. It also filed a service delivery deadline extension request since the approved services were implemented after September 30 following the close of the 2004 Funding Year. USAC denied the request on the grounds that Hickory "did not provide information that satisfied" an extension of the deadline.

In an appeal to USAC, Hickory attached letters from its two service providers who also claimed they did not receive the FCDLs. USAC denied the appeal, noting that the FCDLs were sent to Hickory at the address supplied by Hickory and that they were not returned to USAC as undeliverable. It also noted that Hickory had received the December FCDLs, mailed a month before the January FCDLs. Hickory appealed to the Commission.

The Commission granted the appeal based on its rule permitting applicants to receive extensions of the September 30 deadline in cases where the "ervice provider is unable to complete implementation for reasons beyond the service provider's control."It found that, in this case, Hickory was unable to complete installation by September 30, 2005, because neither it nor its service providers were made aware that the funding requests had been granted. The Commission found that Hickory provided sufficient evidence to rebut the presumption of receipt -- an item mailed is presumed to be received by the addressee.

The commission relied principally on the fact that neither of its service providers received the January FCDLs. Also central to the grant was Hickory' prompt action in filing its FCC Forms 486 and extension requests immediately after discovering that its funding commitments had been funded. This action led the Commission to the conclusion that Hickory would have similarly followed through with the E-rate program application process had it received the FCDLs in January 2005.

Please let us know if you have any questions or would like a copy of the Order. Please contact Mark Palchick (202/857-4411) or Howard Barr if you have any questions regarding this advisory.