FCC Record, Volume 28, No. 1, Pages 1 to 975, January 2 - January 31, 2013 Page: 71
The following text was automatically extracted from the image on this page using optical character recognition software:
Federal Communications Commission
price, gave Consorcio's members certainty about the maximum price they would have to pay for those
services, while also giving them the opportunity to pay an even lower price (and therefore seek less E-rate
support) should another provider decide to offer Consorcio the same services at a lower price.57
Therefore, Consorcio may have reasonably believed that such provisions were permissible. Furthermore,
in this case, the record reveals that the right-of-first-refusal provision would not have been known to other
bidders until the competitive bidding process was completed, and that HITN was the only bidder during
the funding years at issue. Thus, the right-of-first-refusal-provision was not exercised nor is there reason
to believe that its existence actually deterred bidders in this specific instance. Given these circumstances,
we find that a limited waiver of the Commission's competitive bidding rules is in the public interest.5s
Moreover, in the record at this time, we find no other improper behavior on the part of the applicants or
HITN during the bidding process. Thus, rejecting Petitioner Group A's funding requests is not warranted
in this instance. We therefore waive the Commission's competitive bidding rules with regard to
Petitioner Group A's FRNs that were previously denied because their contract contained a right-of-first-
refusal provision and remand these FRNs to USAC for further consideration.59 Given our finding that
right-of-first-refusal provisions violate the E-rate competitive bidding rules, we expect Consorcio to
ensure that such provisions are removed from any existing agreements and, not included in, any future E-
rate service provider agreements.6
14. Use ofEquipment. Consorcio challenges USAC's decision to deny several of the
applicants' funding requests on the ground that the service or product requested is not being used in
accordance with program rules (hereafter referred to as Petitioner Group B).6' In their funding year 2002
applications, each member of Petitioner Group B applied for funding for internal connections.62
Specifically, the applicants requested three coaxial cable connections to be used for distance learning.63
15. On November 24, 2003, USAC denied Petitioner Group B's funding requests for the
coaxial cable connections, stating that the service or product requested was not being used in accordance
with program rules.64 Specifically, USAC denied Petitioner Group B's request because it determined that
the distance learning wiring was intended to support telecommunications services for distance learning
57 See Consorcio Request for Review.
5' The Commission may waive any provision of its rules on its own motion and for good cause shown. 47 C.F.R.
1.3. A rule may be waived 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. WAITRadio v. FCC, 418 F.2d 1153, 1157, (D.C. Cir. 1969), af'd, 459 F.2d
1203 (D.C. Cir. 1972). In sum, waiver is appropriate if special circumstances warrant a deviation from the general
rule, and such deviation would better serve the public interest than strict adherence to the general rule. Northeast
Cellular, 897 F.2d at 1166.
59 See Appendix A.
60 Moreover, we encourage Consorcio and all other applicants to obtain a legally binding determination from the
Commission or seek informal guidance from USAC in the event of uncertainty about whether certain contractual
approaches would be consistent with E-rate competitive bidding requirements.
61 See Request for Review at 8-9; see also Appendix B.
62 See, e.g., FCC Form 471, Biblioteca Municipal De Juncos (filed Jan. 17, 2002); FCC Form 471, Biblioteca
Electronica Dr. Carlos Hernandez Rodrig (filed Jan. 17, 2002).
3 See, e.g., FCC Form 471, Biblioteca De La Ciudad Rosa M. Sanchez (filed Jan. 17, 2002); FCC Form 471,
Biblioteca Publica Coamo (filed Jan. 17, 2002).
4 See FCDL at 5.
Here’s what’s next.
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
United States. Federal Communications Commission. FCC Record, Volume 28, No. 1, Pages 1 to 975, January 2 - January 31, 2013, book, January 2013; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc171173/m1/86/: accessed July 18, 2019), University of North Texas Libraries, Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.