ASTCA to FCC: Reconsider denial of waiver request for E-Rate
Pago Pago, AMERICAN SAMOA — The American Samoa TeleCommunications Authority (ASTCA) has requested the US Federal Communications Commission’s Wireline Competition Bureau to reconsider its earlier denial of ASTCA’s waiver request for submission of Funding Year 2017 FCC Form 474 for the Schools and Libraries Universal Support Mechanism (E-rate) program.
ASTCA missed a key Form 474 invoicing deadline in FY 2017 and contends the missed deadline was due to a natural disaster plus the “unexpected death of its Chief Executive Officer necessitated a sudden internal reorganization,” according to fundsforlearning.com documents. If the petition is denied, ASTCA “could potentially cost the only Samoa E-rate service provider nearly $740,000 in support.”
The “petition for reconsideration” was filed May 30th by ASTCA chief executive officer Lewis Wolman and ASTCA’s Washington D.C.-based law firm, Hogan Lovells US LLP.
According to the petition, ASTCA’s deadline to submit Form 474 or request an extension was no earlier than Oct. 29, 2018. Despite its best efforts, ASTCA was unable to submit the form until Nov. 28, 2018 “due to extraordinary circumstances”:
• immediate and lasting effects of February 2018 Tropical Storm Gita, which severely slowed the local Department of Education’s (ASDOE) processing and payment of the invoices that ASTCA sent ASDOE well in advance of the Form 474 submission deadline; and
• the sudden death of ASTCA’s boss at the time, Pulelei’ite Li’a Tufele.
ASTCA explained in the days leading up to Gita, an associated monsoon trough resulted in floods, evacuations, and landslides across the territory. And Gita’s heavy rains and strong winds brought additional devastation, eventually displacing more than 800 people — 15% of the population — from their homes and leaving 90% of Tutuila without power and water.
“Unfortunately, Gita’s catastrophic effects lingered well after the storm,” the petition said, noting that 12-months after the storm, “structural damage still threaten access to education for hundreds of students.”
“ASTCA endeavored to comply with its E-rate obligations despite these challenges,” the petition states, noting that ASTCA submitted its first 2017 invoice to ASDOE at the end of February, and the next one in April 2018.
ASTCA claims that it repeatedly followed up with ASDOE to ensure prompt payment. And in the “midst of this process, three months after Gita and before ASTCA had resumed normal operations” Pulele’iite passed away unexpectedly, “forcing a quick and temporary restructuring of ASTCA’s operations.
A footnote in the petition notes that as a result of the restructuring, ASTCA’s Chief Financial Officer assumed CEO duties for seven months, until ASTCA’s new CEO (referring to Wolman) started last November. Furthermore, the significant burden created by these added responsibilities, in the aftermath of Gita and after the unexpected death of the CEO, contributed to ASTCA’s missed deadline.
According to the petition, amidst the “company’s internal turmoil”, ASTCA submitted additional invoices to ASDOE in May, June, and July 2018, again following up persistently, both in writing and in person.
Last July, ASDOE asked ASTCA to substantially revise six months of invoices to account for service interruptions caused by Gita, many of which had been previously undocumented in ASTCA’s “trouble ticket” docket due to the urgency of Gita response efforts, the petition said, adding that ASTCA submitted the revised invoices within a week.
“Yet DOE did not pay the invoices until November 9, 2018, days after the Form 474 submission deadline,” according to ASTCA. “Given the extensive damage caused by Gita, ASDOE’s payment delays were foreseeable.”
The petition also revealed that “ASTCA’s staff at the time, inexperienced in E-rate procedures, did not understand that in light of ASDOE’s delays, ASTCA should have filed an automatic extension request” before the October 29, 2018 Form 474 submission deadline.
ASTCA claims that Pulele’iite’s passing “had left the company without the leadership needed to ensure full compliance during a very critical period.”
“And throughout these challenges, ASTCA delivered critical communications services to ASDOE, including the 17,000 students who depend on ASTCA for connectivity.
PREVIOUS SIMILAR RECOGNITION
ASTCA argues that FCC’s Wireline Competition Bureau (Bureau) has previously recognized that natural disasters can create the type of conditions that justify a waiver of meeting the deadline in filing Form 474.
It pointed to areas designated as Major Disaster Areas eligible for FEMA assistance to the more recent “extensive damage and disruption in service caused by the October 2017 wildfires” in California. In such cases, the Bureau granted extension waiver to file Form 474.
“ASTCA faced similarly dire circumstances when Gita made landfall in American Samoa” where FEMA designated several districts and counties as Major Disaster Areas, according to the petition.
It also notes that the Bureau has also granted waivers in response to health crisis involving key personnel, acknowledging that unexpected events outside of a program participant’s control can hamstring even the most diligent of efforts by resource-strapped E-rate recipients.
For example, White Lake District’s (WLD) E-rate compliance was thrown into tumult when its business manager suddenly developed a brain tumor that rendered her unable to carry on her duties.
“Much like WLD, ASTCA had no way of predicting its CEO’s untimely death. When [ASTCA] responsibilities had to be quickly reassigned as a result, ASTCA’s small staff lacked the resources needed to ensure E-rate compliance,” the petition says.
ASTCA “moved swiftly to resolve” this personnel issue, and sent staff to Washington, DC in late November 2018 for formal training in E-rate procedures, and ASTCA had filed in January this year, a request for waiver that “underlies this Petition, unfortunately without the benefit of legal counsel”.
“ASTCA has no reason to believe that it will miss any future program deadlines,” it says.
As the only E-rate Internet service provider in American Samoa, “ASTCA truly provides essential services to the territory, which is why it is maintained as a State-owned enterprise,” the petition points out, noting that given American Samoa’s remote geographic location, “a lack of connectivity would leave American Samoans without a way to do their homework, search and apply for jobs, access critical healthcare and safety resources, and fully participate in the global digital economy.”
ASTCA said ASDOE is its biggest customer, with E-rate constituting approximately 50% of ASTCA’s total enterprise revenues, 20% of its total Internet revenues, and 5% of its total annual revenues.
“Losing six months of revenues — amounting to $558,303.95 for services it laudably provided during Funding Year 2017 — would severely hamper ASTCA’s ability to reinvest in its network and offer American Samoa’s residents more advanced, affordable, and resilient telecommunications and broadband services.”