Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) ) Request for Review by Maniilaq Association ) of Decision of Universal Service Administrator ) WC Docket No. 02-60 ) ) HCP 10249, 10810, 10811, 10812, 10813, ) 10814, 10815, 10816, 10817, 10818, 10819, ) 10820 ) REQUEST FOR REVIEW OR LIMITED WAIVER Yaron Dori Brooke Kahn Covington & Burling LLP One City Center 850 Tenth Street, NW Washington, DC 20001 Tel. (202) 662-6000 Counsel for Maniilaq Association July 2, 2019 TABLE OF CONTENTS Page(s) EXECUTIVE SUMMARY ............................................................................................................. i I. INTRODUCTION AND BACKGROUND ....................................................................... 2 II. DISCUSSION ..................................................................................................................... 4 A. Statement of Interest ............................................................................................... 4 B. Statement of Facts ................................................................................................... 4 1. The Competitive Bidding Process and the Contracts ................................. 5 2. USAC’s FY 2017 Information Request ....................................................... 8 3. USAC’s FY 2017 Funding Denial Notice ................................................. 10 4. USAC’s Decision ...................................................................................... 11 C. Question Presented................................................................................................ 12 D. Relief Sought ........................................................................................................ 13 1. Maniilaq Was Not Required to Submit the EarthLink Document or the GCI Bids with its FCC Form 466 Service Requests ........................... 13 2. Any Failure on the Part of Maniilaq Was, at Most, a Clerical Error ......................................................................................................... 18 3. If Necessary, the Commission Should Grant a Limited Waiver of its Competitive Bidding Rules ........................................................................ 21 III. CONCLUSION ................................................................................................................. 23 TABLE OF ATTACHMENTS EXECUTIVE SUMMARY On November 30, 2018, USAC denied Maniilaq’s RHC Program funding requests for FY 2017 due to minor clerical errors that in no way undermined the competitive bidding process or the integrity of the RHC Program. That competitive bidding process resulted in two service contracts between Maniilaq and GCI, one to serve Manillaq’s Health Center in Kotzebue, Alaska, and another to serve Maniilaq’s 11 village clinics. Maniilaq appealed USAC’s decision, but on May 6, 2019, USAC denied Maniilaq’s appeal. If the Commission does not overturn USAC’s decision, Maniilaq will lose over $16 million in RHC Program funding. This will put at risk the provision of reliable and affordable health care services by Maniilaq, the only provider of such services to approximately 8,500 people in a remote region that spans 38,000 square miles, a territory roughly the size of State of Indiana. This Request for Review respectfully requests that the Commission overturn USAC’s decision, or, in the alternative, waive the Commission’s competitive bidding rules to the extent necessary so that Maniilaq can receive RHC Program funding for FY 2017 and retain its ability to provide reliable and affordable health care services to the thousands of Alaskan natives and other non-native patients in the remote region of Northwest Alaska who depend on them. Maniilaq complied with the Commission’s rules. But even if the Commission finds that Maniilaq made errors, those errors were, at most, clerical in nature and thus had no bearing on the competitive bidding process, Maniilaq’s overall compliance with the RHC Program, or the underlying policies and objectives of the Commission. Indeed, if USAC’s decision is upheld, the overall goals of the RHC Program and the Commission’s rules will be undermined rather than realized, as the loss of this funding will threaten the provision of health care services by the only provider of such services in the region. The threat of this loss already has caused uncertainty for Maniilaq, as it depends on this funding to deliver telemedicine and transmit electronic medical i records in an area that is not even accessible by roads. Good cause exists to promptly overturn USAC’s decision, and doing so would be in the public interest. USAC has put forward alternating theories as to why Manillaq and the people it serves should endure such a harsh and disproportionate penalty: • Initially, USAC stated that Maniilaq should have included with one of its FCC Form 466 funding requests a copy of a short promotional brochure that one entity, EarthLink, submitted after Maniilaq posted its FCC Form 465 service request for its Health Center in Kotzebue – even though EarthLink, by its own admission, could not and would not provide the services Maniilaq requested. • Later, in upholding its denial, USAC shifted its rationale to claim that Maniilaq should have included with its FCC Form 466 funding requests for both the Health Center in Kotzebue and the 11 village clinics the bids it received from GCI that Maniilaq accepted – even though Maniilaq subsequently produced those bids, the only bids received, and even though both USAC and the Commission have at various points in time stated that bids need not be submitted with an FCC Form 466 when there is only one bidder. • In upholding its denial, USAC also concluded that Maniilaq and the communities it serves should lose this critical funding because Maniilaq inadvertently checked the “no” box on its FCC Form 466 funding requests in 2015 and 2016 in response to a question that asked whether any bids were received – even though the Commission has issued clear guidance in the past (and USAC itself has acknowledged) that clerical errors should not form the basis of funding denials. In short, USAC construed the omission of a short promotional brochure by an entity that confirmed it could not and would not provide the requested service, the omission of documents subsequently produced, and an inadvertently-checked box as somehow conspiring to “taint” the competitive bidding process. This reasoning is unfounded, elevates form over substance, and disregards the real-world consequences of denying funding for critical telemedicine services on which a vulnerable population depends. USAC’s decision should be overturned promptly or the Commission’s competitive bidding rules should be waived as needed to correct this injustice. ii Before the FEDERAL COMMUNICATIONS COMMISSION Washington, DC 20554 In the Matter of ) ) ) Request for Review by Maniilaq Association ) of Decision of Universal Service Administrator ) WC Docket No. 02-60 ) ) HCP 10249, 10810, 10811, 10812, 10813, ) 10814, 10815, 10816, 10817, 10818, 10819, ) 10820 ) REQUEST FOR REVIEW OR LIMITED WAIVER The Maniilaq Association (“Maniilaq”) hereby respectfully requests that the Federal Communications Commission (“FCC” or “Commission”) review and reverse the decision of the Universal Services Administrative Company (“USAC” or “Administrator”) to deny eligible service funding under the Universal Service Fund (“USF”) Rural Health Care (“RHC”) Program for Funding Year (“FY”) 2017 in connection with the above-captioned facilities under two contracts – one from 2015 and another from 2016 – between Maniilaq and GCI Communication Corp. (“GCI”).1 In the alternative, Maniilaq requests a limited waiver of the Commission’s competitive bidding rules relating to those contracts so that Maniilaq’s funding requests in FY 2017 are granted in full.2 1 To the extent USAC’s basis for denying funding in FY 2017 extends to FY 2018 or other periods, Maniilaq respectfully requests that this Request for Review or Limited Waiver be applied to those periods, too. 2 Supra note 1. I. INTRODUCTION AND BACKGROUND The funding denials that Maniilaq challenges in this submission stem from two separate competitive bidding processes that began when Maniilaq posted FCC Form 465 service requests in 2014 and 2015. Those FCC Form 465 service requests resulted in Maniilaq entering into two distinct service contracts with GCI, one in 2015 and another in 2016. According to USAC, Maniilaq violated the Commission’s competitive bidding rules by (1) failing to submit certain documentation pertaining to its decision to enter into those contracts when it subsequently filed its FCC Form 466 funding requests in 2015 and 2016, and (2) checking the “no” box in response to the question on those FCC Form 466 funding requests that asked whether Maniilaq received any bids in response to its FCC Form 465 service requests. For the reasons set forth below, USAC either is incorrect or its findings do not merit the funding denials. Its decision therefore should be overturned, and Maniilaq’s funding requests for FY 2017 should be granted in full. Even if Maniilaq should have submitted additional documentation or checked the wrong box in its FCC Form 466 submissions in 2015 and 2016, any failure to do so was either the result of prior Commission or USAC guidance or, at most, a clerical error that could not possibly have undermined the competitive bidding process. The Commission therefore can (and, if necessary, should) overturn