[Federal Register Volume 66, Number 249 (Friday, December 28, 2001)]
[Rules and Regulations]
[Pages 67112-67114]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31868]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[CC Docket No. 96-45; FCC 01-350]
Federal-State Joint Board on Universal Service; Petition of the
State of Alaska for Waiver for the Utilization of Schools and Libraries
Internet Point-of-Presence in Rural Remote Alaska Villages Where No
Local Access Exists and Request for Declaratory Ruling
AGENCY: Federal Communications Commission.
ACTION: Final rule; waiver request granted.
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SUMMARY: In this document, the Commission grants the State of Alaska
(Alaska) a limited waiver, which requires applicants to certify that
the services requested will be used solely for educational purposes,
subject to the conditions discussed below. The Commission finds that
good cause exists to allow members of rural remote communities in
Alaska, where there is no local or toll-free dial-up Internet access,
to use excess service obtained through the universal service mechanism
for schools and libraries when not in use by the schools and libraries
for educational purposes.
DATES: Effective January 28, 2002.
FOR FURTHER INFORMATION CONTACT: Katherine Tofigh, Attorney, Common
Carrier Bureau, Accounting Policy Division, (202) 418-1553.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order
in CC Docket No. 96-45 adopted on November 29, 2001 and released on
December 3, 2001. The full text of this document is available for
public inspection during regular business hours in the FCC Reference
Center, Room CY-A257, 445 Twelfth Street, SW., Washington, DC, 20554.
I. Introduction
1. In this Order, the Commission grants the State of Alaska
(Alaska) a limited waiver of Sec. 54.504(b)(2)(ii) of the Commission's
rules, which requires applicants to certify that the services requested
will be used solely for educational purposes, subject to the conditions
discussed below. The Commission finds that good cause exists to allow
members of rural remote communities in Alaska, where there is no local
or toll-free dial-up Internet access, to use excess service obtained
through the universal service mechanism for schools and libraries when
not in use by the schools and libraries for educational purposes.
[[Page 67113]]
II. Discussion
2. The Commission grants Alaska a limited waiver of
Sec. 54.504(b)(2)(ii), to permit members of rural remote communities in
Alaska, where there is no local or toll-free dial-up Internet access,
to use excess service obtained through the universal service mechanism
for schools and libraries when the services are not in use by the
schools and libraries for educational purposes. The Commission grants
this waiver subject to the following conditions: (1) There is no local
or toll-free Internet access available in the community; (2) the school
or library has not requested more services than are necessary for
educational purposes; (3) no additional costs will be incurred, i.e.,
services subject to a waiver must be purchased on a non-usage sensitive
basis; (4) any use for noneducational purposes will be limited to hours
in which the school or library is not open; (5) and the excess services
are made available to all capable service providers in a neutral manner
that does not require or take into account any commitments or promises
from the service providers.
3. This waiver is dependent on Alaska's implementation of these
conditions. The Commission believes that these conditions are
appropriately tailored to narrow the scope of waiver to ensure the
integrity of the schools and libraries mechanism, yet broad enough to
provide relief to rural remote communities in Alaska that are
encountering economic and distance-related challenges to receiving
telecommunications and advanced services. Maximizing the use of
services obtained from the schools and libraries program by permitting
such rural remote communities to use the excess service that is
available as a result of the non-usage sensitive basis of the service
and the limited hours that the service is used for educational purposes
will further the goals of universal service, consistent with the Act.
If these conditions are satisfied, then the Commission will find that
special circumstances have been met and that a waiver is in the public
interest.
4. As an initial matter, the Commission concludes that there are no
statutory prohibition against our waiving Sec. 54.504(b)(2)(ii) of the
Commission's rules. Section 254(h)(1)(B) provides that eligible schools
and libraries shall receive discounts on certain services for
educational purposes. Pursuant to the Commission's discretion to
implement the statute, the Commission narrowly constructed its rule to
require schools and libraries to certify that they use such discounted
services solely for educational purposes. This rule supports the
Commission's efforts to guard against fraud, waste, and abuse. Nothing
in section 254(h)(1)(B) prohibits the Commission from granting a waiver
of Sec. 54.504(b)(2)(ii) of its rules to expand the use of such
services, so long as in the first instance they are used for
educational purposes.
5. The Commission's rules, however, may only be waived for good
cause shown. As noted by the Court of Appeals for the D.C. Circuit,
agency rules are presumed valid. The Commission may exercise its
discretion to waive a rule where the particular facts make strict
compliance inconsistent with the public interest. In addition, the
Commission may take into account considerations of hardship, equity, or
more effective implementation of overall policy on an individual basis.
Waiver of the Commission's rules is therefore appropriate only if
special circumstances warrant a deviation from the general rule, and
such a deviation will serve the public interest.
6. The Commission finds that Alaska's waiver request satisfies the
above-stated conditions. First, Alaska has adequately demonstrated
special circumstances. Alaska states that there are approximately 240
communities in the state that lack local or toll-free dial-up access to
the Internet. These communities are located in remote areas of the
state that are isolated by severe terrain and a harsh climate. Most of
these communities are sparsely populated (population under 250), and
are reachable only by air or water. As a result, access to information
services is minimal and generally cost-prohibitive. In fact, Alaska
asserts that start-up costs for an Internet service provider in a
village is often more than $20,000, in addition to the monthly cost for
a satellite link. Of the communities without local or toll-free dial-up
access to the Internet, 135 have available, non-usage sensitive
Internet access at local schools or libraries. Given their extreme
isolation and the lack of access to affordable Internet services, the
Commission believes it is appropriate to allow rural remote areas in
Alaska that lack local or toll-free dial up access to the Internet to
utilize excess service obtained through the universal service mechanism
under the limited circumstances described above.
7. The Commission also concludes that granting Alaska's waiver will
serve the public interest. The Commission believes that it is in the
public interest to take steps to utilize the excess services obtained
through the schools and libraries mechanism. Alaska explains that
nearly 75 percent of rural Alaskan communities do not have Internet
access via a local dial-up or toll-free connection. In many of these
communities, however, schools and libraries have access to information
services because of assistance from the schools and libraries
mechanism. This waiver will serve the public interest by promoting
access to available resources and allowing communities to make use of
the excess service. The Commission finds that the waiver is also in the
public interest because it is consistent with the Commission's efforts
to encourage access to advanced telecommunications and information
services.
8. In addition, the Commission believes that each of the conditions
imposed with this waiver promotes the public interest by reducing the
likelihood of waste, fraud, and abuse, and guarding against additional
costs from being imposed on the schools and libraries mechanism. These
conditions are discussed separately below.
9. The first condition limits application of the waiver to
communities in Alaska where there is no local or toll-free dial-up
Internet access. As noted above, many of these communities lack
affordable access to the Internet due to their remote nature but also
have available, non-usage sensitive connections to the Internet in
their schools and libraries. The Commission believes that allowing
these communities to access services obtained from the schools and
libraries universal service mechanism will serve the public interest by
reducing waste and making more efficient use of available resources.
10. Under the second condition, eligible schools and libraries in
Alaska are not permitted to request more services than are necessary
for educational purposes. Alaska will protect against that possibility
by instructing schools and libraries to maintain information
documenting the necessity for additional services. This will reduce the
likelihood of fraud and abuse by enabling the Schools and Libraries
Division of the Universal Service Administrative Company to efficiently
assess whether additional requests are associated with educational
purposes. As noted above, this waiver only allows for the use of excess
service that is incidental to services provided for educational
purposes. If there are increases in requests not warranted by
educational purposes, we believe that it will be appropriate to
reassess the propriety of this waiver.
[[Page 67114]]
11. The third condition limits the waiver to communities where the
services used by the school are purchased on a non-usage sensitive
basis. By limiting implementation of this waiver to communities that
pay a flat, non-traffic sensitive rate for services, it reduces wasted
resources and it protects against abuse by ensuring that the schools
and libraries program does not incur additional costs based on the
increased utilization. In addition, the Commission notes that any
additional equipment related to the provision of Internet service to
the community will not be eligible for support.
12. The fourth condition limits local community usage to hours in
which the school or library is not open. By limiting use for non-
educational purposes to non-operating hours for the schools and
libraries, the Commission guards against abuse by eliminating the
possibility that community usage may interfere with usage of services
for educational purposes in schools and libraries. In accord with this
condition, Alaska will include terms in agreements with ISPs
restricting community usage to non-operating hours. Specifically,
agreements will include an explicit statement that service is
restricted to non-operating hours of the school or library and will
designate normal operating hours, along with the anticipated school
year calendar. The local Internet service provider will also be
required to demonstrate the effectiveness of how it will restrict
service to the designated hours.
13. Pursuant to the fifth condition, excess services must be made
available to all capable service providers in a neutral manner that
does not require or take into account any commitments or promises from
the service providers. This condition is consistent with the Act, which
prohibits any discounted services or network capacity from ``being
sold, resold, or transferred by such user in consideration for money or
any other thing of value.'' We believe that this condition will ensure
that excess services are not transferred in exchange for any benefit to
the school, library, or surrounding community, whether the benefit is a
promise of particular services, prices, or other thing of value. This
condition will also protect against fraud, waste, and abuse by
providing that all public, tribal, non-profit, and commercial entities
will be treated equally. We note that there may be circumstances in
which demand for the excess services by service providers is greater
than the available excess services. In such instances, the school or
library may determine priority based on a set of neutral criteria that
is consistent with this condition, such as random selection, first-
come-first-served, or any other methodology that does not prioritize
based on expectations of particular benefits to the institution or
surrounding community. The Commission also notes that this condition in
no way prohibits schools and libraries from establishing minimal
technical requirements to protect the integrity of the institution's
network, to ensure that selected providers are actually capable of
providing service, or to ensure that selected providers are prepared to
offer service.
14. Therefore, because the Commission finds that this waiver is in
the public interest and that Alaska has demonstrated special
circumstances, we find good cause to grant Alaska's waiver request
subject to the provided conditions. The Commission is confident that
this waiver will ensure that appropriate steps will be made to ensure
the integrity of the schools and libraries universal service mechanism.
III. Ordering Clause
15. Pursuant to sections 1, 4(i), and 254 of the Communications Act
of 1934, as amended, 47 U.S.C. 151, 154(i), and 254 and 1.3 and 1.925
of the Commission's rules 47 CFR 1.3 and 1.925, the waiver request
filed by the State of Alaska on January 29, 2001, is granted, subject
to the conditions indicated herein.
Federal Communications Commission.
Magalie Roman Salas,
Secretary.
[FR Doc. 01-31868 Filed 12-27-01; 8:45 am]
BILLING CODE 6712-01-P