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April 20, 2004 Minutes

Board of Directors Meeting

The quarterly meeting of the Board of Directors of the Universal Service Administrative Company (USAC) was held at the USAC office in Washington, DC on Tuesday, April 20, 2004. Mr. Gumper, Chair of the Board, called the meeting to order at 8:30 a.m. Eastern Time. Ms. Howard, Executive Assistant to the CEO, called the roll.

Sixteen of the nineteen members were present, representing a quorum::

Bryant, Anne

Hess, Kevin

Buller, Karen

Hughes, Alison

Campbell, Anne

Jackson, Jimmy – Secretary

Christensen, Doug

Jortner, Wayne – Treasurer

Cornell, Diane

Lubin, Joel – Vice Chair– by telephone

Duff, Bridget

Sanford, Jo Anne

Eichler, Ed

Talbott, Dr. Brian

Gumper, Frank – Chair

Zaina, Lisa – CEO

Two members joined the meeting in progress:

Askin, Jonathan

Baker, Dave

One member was absent:

Sanders, Jay

Other Officers of the Corporation present:

Barash, D. Scott - Vice President and General Counsel
Blackwell, Mel - VP, External Communications and Rural Health Care Division
Carmichael, Mark - Assistant Treasurer; VP, Finance and Financial Operations
Flannery, Irene - VP, High Cost and Low Income Division
Haga, Robert - Assistant Secretary; VP, Strategic Planning and USAC Operations
McDonald, George - VP, Schools and Libraries Division
Scott, Wayne - VP, Internal Audit Division
Others present for the meeting:

Name

Company

Cullen, Kathy

Telcordia

Divak, Helen

Telcordia

Gallant, Pam

USAC

Gill, Chuck

NECA Services, Inc.

Hegmann, Bill

NECA

Howard, Cathy

USAC

Lamoureux, Renee

USAC

Long, Deborah

NECA

Miller, Linda

USAC

Nadel, Mark

FCC

Action Items

a1.

Approval of the Minutes. On a motion duly made and seconded, the Board approved the meeting minutes as distributed of Tuesday, January 13, 2004; Tuesday, January 27, 2004; and March 10, 2004. Ms. Hughes and Ms. Zaina abstained from this vote, as they were not present at some of the respective meetings.

Board member Mr. Askin joined the meeting during discussion of the next item.

a2. 

Reports from the Committee Chairs. Each of the Chairs of the USAC programmatic Committees reported on issues discussed and action taken by each Committee since the January 2004 quarterly meetings: Mr. Eichler reported on the Audit Committee meetings of April 15 and 19, 2004; Mr. Gumper reported on the Executive Committee meeting of April 15, 2004; Mr. Hess reported on the High Cost & Low Income Committee meeting of April 19, 2004; Mr. Jackson (on behalf of Dr. Sanders) reported on the Rural Health Care Committee meeting of January 26, 2004; and Dr. Talbott reported on the Schools & Libraries Committee meetings of February 23 and April 13 and 19, 2004 .

The minutes of each Committee meeting provide a full accounting of the discussions and actions taken by the Committees.

a3.   Approval of Changing the Universal Service Fund Fiscal Year to the Federal Government Fiscal Year. Mr. Carmichael introduced this item. He explained that changing the Universal Service Fund (USF or Fund) fiscal year would not require any administrative or financial changes: the main reason to change the USF fiscal year is to line up the Fund with federal government accounting standards and the FCC’s fiscal year for purposes of the FCC annual financial audit. He noted that USAC’s fiscal year would not change, as USAC itself is not a government agency, and that the FCC financial staff recognizes and supports the importance of maintaining the distinction between USAC as a corporation and the USF itself, which rolls into the FCC’s financial statements.

On a motion duly made and seconded, the Board adopted the following resolutions:

               RESOLVED, That the USAC Board of Directors accepts the recommendation of the USAC Executive Committee and directs that the fiscal year for the Universal Service Fund shall end on September 30, effective September 30, 2004, in order to conform to the federal government fiscal year end.

Board member Mr. Baker joined the meeting during the discussion of the next item.

a4.  

Approval of Revised Engagement Arrangements with Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC. Mr. Barash introduced this item. He discussed the fact that the amount of legal work performed by its longtime primary outside counsel, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, PC has increased significantly over the last three years as the scope of USAC’s legal affairs has broadened. This increased work prompted USAC to reexamine the terms and conditions of its engagement with the firm and to renegotiate certain of those terms. He indicated that the new proposed engagement letter more fully defines the terms and conditions of the engagement and includes a volume discount negotiated by USAC. Mr. Barash noted that monetary recoveries associated with USAC’s bankruptcy work have been significant. In response to an inquiry, Mr. Barash explained that at this point it is generally more effective and cost-efficient to continue to use outside counsel for bankruptcy and litigation matters in local courts around the country rather than hire additional in-house attorneys for numerous reasons, including the fact that outside counsel is better equipped to manage the day-to-day aspects of USAC’s extensive bankruptcy litigation practice and that many of the bankruptcy cases in which USAC must participate are in geographical areas in which Mintz, Levin and USAC’s other outside counsel maintain offices. Mr. Barash also noted that local counsel is required in most jurisdictions, which necessitates retaining outside law firms for most contested bankruptcy matters in any event.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors accepts the recommendation of the USAC Executive Committee and approves the revised terms and conditions of USAC’s engagement of the law firm Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo PC.

a5. Approval of Course of Action and Request for Budgetary Authority Concerning an Investigative Audit Matter – Confidential & Proprietary – Executive Session Recommended. In accordance with the approved criteria and procedure for conducting USAC Board and Committee business in Executive Session, Mr. Barash recommended that this item be discussed in Executive Session because discussion this matter relates to specific internal controls, and/or confidential company data that would constitute a discussion of internal rules and procedures concerning the administration of the universal service support mechanisms where discussion of the matter in open session would result in disclosure of confidential techniques and procedures that would compromise program integrity.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors determines that discussion of the proposed course of action regarding an investigative audit matter and request for budget authority shall be conducted in Executive Session.

See Executive Session for a report of the discussion and action taken on this item.

a6.   

Approval of 3rd Quarter 2004 USAC Common and Consolidated and Revised 2004 Annual Common and Consolidated Budgets. Mr. Carmichael introduced this item. Following a request by a Board member for basic budget training for the Board, Mr. Carmichael agreed to circulate a draft agenda for such training prior to the next Board of Directors meeting. Mr. Gumper requested USAC staff to update the benchmarking study showing how much each Universal Service Fund “application” or “grant” costs to process and comparing this number against other grant-making agencies to the extent that such a comparison is practical.

On a motion duly made and seconded, the Committee adopted the following resolution:

               RESOLVED, That the USAC Board of Directors accepts the recommendation of the USAC Executive Committee to approve a 3rd Quarter 2004 USAC common budget of $3,822,200; and

               RESOLVED FURTHER, That the USAC Board of Directors accepts the recommendation of the USAC Executive Committee to approve a 2004 annual USAC common budget of $14,801,400; and

               RESOLVED FURTHER, That the USAC Board of Directors accepts the recommendation of the USAC Executive Committee to approve a 3rd Quarter 2004 USAC consolidated budget of $19,210,700; and

               RESOLVED FURTHER, That the USAC Board of Directors accepts the recommendation of the USAC Executive Committee to approve a 2004 annual USAC consolidated budget of $73,710,100.

a7.   

Approval of 3rd Quarter 2004 Revenue Projections and Resolutions for the June 1, 2004, FCC Filing. Mr. Carmichael introduced this item. There was no further discussion.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors, having reviewed at its meeting on April 20, 2004, a summary of the current status of the June 1, 2004, FCC filing requirements, accepts the recommendation of the USAC Executive Committee to authorize staff to proceed with the required June 1, 2004, filing to the FCC on behalf of USAC using a preliminary estimate of $18,861.616 million for the Universal Service Fund contribution base. Staff may make adjustments in accordance with the approved $1.25 billion variance threshold.

a8.   Revisit Approval of July 2004 – January 2006 Board of Directors Quarterly Meeting Schedule. At the request of two Board members, the Board revisited the issue of the quarterly Board and Committee meetings schedule for July 2004 – January 2006 as approved at the January 2004 quarterly Board meeting. The Board determined that a majority of the members preferred the Monday/Tuesday schedule or were indifferent.

On a motion duly made and seconded, the Board adopted the following resolution:

RESOLVED, That the USAC Board of Directors adopts the following revised July 2004 through January 2006 Monday/Tuesday schedule of quarterly meetings of the Board of Directors and Committees:

Audit Committee Part I & Executive Committee

Programmatic Committees & Board of Directors

July 15, 2004

July 19 – 20, 2004

October 14, 2004

October 18 – 19, 2004

January 20, 2005

January 24 – 25, 2005

April 14, 2005 April 18 - 19, 2005
July 14, 2005 July 18 - 19, 2005
October 20, 2005 October 24 - 25, 2005
January 19, 2006 January 23 - 24, 2006
a9.  

Miscellaneous.

_01.

Solicit Ideas for April 2004 Board Agenda. Mr. Gumper reminded Board members that they may offer suggestions for agenda items at each quarterly meeting or by contacting him or Ms. Zaina between quarterly meetings.

_02.

Update from Members of the NECA Board of Directors on Recent Events Involving NECA and NECA Services, Inc. – Confidential & Proprietary - Executive Session Recommended. In accordance with the approved criteria and procedure for conducting USAC Board and Committee business in Executive Session, Mr. Barash recommended that discussion of matters regarding corporate governance and corporate fiduciary duties be conducted in Executive Session. The Board of Directors has sought legal advice concerning certain corporate governance issues and discussion of these matters in Executive Session is required in order to ensure the continued applicability of the attorney-client privilege. In addition, Mr. Barash noted that certain matters relate to the employment situation of individuals, and Executive Session is warranted on privacy grounds. Executive Session is also warranted because the matters discussed relate to USAC’s procurement activities, and discussion of these matters in open session would compromise USAC’s business interests.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors determines that an update from members of the NECA Board of Directors on recent events involving NECA and NECA Services, Inc. shall be conducted in Executive Session.

See Executive Session for a report of this discussion.

_03.

Report on Application of the Improper Payment Act to the Universal Service Support Mechanisms – Confidential & Proprietary - Executive Session Recommended. Mr. Gumper stated that Ms. Zaina had information to share regarding pre-decisional conversations between USAC staff and the FCC on the matter of the Improper Payment Act. In accordance with the approved criteria and procedure for conducting USAC Board and Committee business in Executive Session, Mr. Gumper recommended that this matter be discussed in Executive Session because discussion of this issue centers on pre-decisional matters before the FCC to which USAC is privy, and discussion of such matters in open session would undermine the agency’s deliberative process or could result in the disclosure of an agency’s conclusions or rationales before the agency has formally decided the matter.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors determines that discussion of information regarding conversations between USAC staff and the FCC on the matter of the Improper Payment Act shall be conducted in Executive Session.

See Executive Session for a report of this discussion.

Information Items

i1.    

Assistant Treasurer’s Report. For information only. No discussion held.

i2.    Status of Financial Services Operations Transition. Ms. Bryant commended USAC staff on its work related to the transition of USAC’s financial operations from an outsourcing arrangement to an in-house operation. Mr. Gumper explained the history behind the decision to transition these operations in-house.
i3.  Report on Transition of the Universal Service Fund to Government Accounting Standards. Mr. Carmichael provided a status report on the transition of the Universal Service Fund (USF or Fund) from Generally Accepted Accounting Principles (GAAP) to Federal Generally Accepted Accounting Principles (FGAAP), as required by the Federal Communications Commission (FCC) order. Mr. Carmichael indicated that USAC expects to meet the imposed deadline of October 1. He said that USAC staff would be conducting parallel tests with the FCC this summer in preparation for the cutover on October 1. Mr. Gumper explained that the decision to move these operations in-house was done quickly and several of the changes to the budget this quarter are due to staffing increases.
i4.  Report on Legislative and Media Activity. Mr. Blackwell reported on the continuing investigation of the Schools and Libraries Support Mechanism being conducted by the United States House of Representatives Committee on Energy and Commerce, Subcommittee on Investigations and Oversight. Mr. Blackwell then recommended that because he had pre-decisional information regarding the details of possible upcoming hearings, further discussion of this matter should be conducted in Executive Session in accordance with the approved criteria and procedure for conducting USAC Board and Committee business in Executive Session.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors determines that further discussion of possible upcoming hearings by the United States House of Representatives Committee on Energy and Commerce, Subcommittee on Investigations and Oversight on the continuing investigation of the Schools and Libraries Support Mechanism shall be conducted in Executive Session.

See Executive Session for a report of this discussion.

i5.  Regulatory Report. In response to a Board member inquiry, Mr. Barash reported to the Board that USAC does not expect any action on the letter filed with the FCC by the North American Numbering Plan Billing and Collection Agent (NBANC) objecting to the FCC treating North American Numbering Plan (NANP) funds as part of the Commission's financial statements. Mr. Gumper noted that NBANC has the same issue as USAC concerning the treatment of its funds as federal funds for accounting purposes.
i6. Report on Pending Litigation and Bankruptcy Matters. For information only. No discussion held.
i7.  Update on Universal Service Support Mechanisms Enforcement Activity. Mr. Barash informed the Board that additional arrests have been made related to the Milwaukee fraud case that has previously been publicly announced. In addition, he said he had additional information regarding an longstanding investigatory matter, and that in accordance with the approved criteria and procedure for conducting USAC Board and Committee business in Executive Session, he recommended discussion of the issue be held in Executive Session because this matter involves program integrity and investigatory records and contemplated enforcement action against a participant in the universal service support mechanism.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors determines that discussion of information regarding a longstanding investigatory matter shall be conducted in Executive Session.

See Executive Session for a report of this discussion.

i8.  Disposition of Administrator Appeals by USAC Staff. For information only. No discussion held.
i9.

Miscellaneous.

  • Report on Corporate Governance Matters – Confidential & Proprietary – Executive Session Recommended. In accordance with the approved criteria and procedure for conducting USAC Board and Committee business in Executive Session, Mr. Barash recommended that discussion of matters regarding corporate governance and corporate fiduciary duties be conducted in Executive Session because the Board of Directors has sought legal advice concerning certain corporate governance issues and discussion of these matters in Executive Session is required in order to ensure the continued applicability of the attorney-client privilege.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors determines that discussion of certain matters regarding corporate governance and corporate fiduciary duties shall be conducted in Executive Session.

See Executive Session for a report of this discussion.

i10. Report of the FCC Financial Audit of the FCC’s Financial Statements for the Year Ending September 30, 2003. For information only. No discussion held.
i11. Status Report on Ongoing USAC Audits. Mr. Scott reviewed the cumulative dollar effect of the KPMG audit reports and the randomly selected audits performed by the USAC Internal Audit Division (IAD). The Board DIRECTED staff to further summarize the data by determining the dollar amount of each type of finding and whether the findings are due to lack of education thus requiring more outreach, or due to fraud or abuse, thus requiring consideration of possible referral for enforcement action. Mr. Gumper explained that the non-compliant findings and percentage of dollars disbursed from the internal audits conducted by USAC staff are large compared to the KPMG audits because USAC’s audits are targeted audits, while KPMG audits are randomly selected applicants. The Board also DIRECTED USAC staff to tie outreach plans with audit findings in an effort to reduce the need for audits.

At this point in the discussion, a Board member asked to discuss USAC’s outreach efforts regarding the Schools and Libraries Support Mechanism program integrity requirements in detail. Mr. McDonald recommended, and Mr. Barash agreed, that in accordance with the approved criteria and procedure for conducting USAC Board and Committee business in Executive Session, discussion of USAC program integrity requirements be held in Executive Session because the outreach plans involve internal rules and procedures concerning the administration of the universal service support mechanisms and discussion of the matter in open session would result in disclosure of confidential techniques and procedures that would compromise program integrity.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors determines that discussion of specific details of Schools and Libraries Support Mechanism outreach plans shall be conducted in Executive Session.

See Executive Session for a report of this discussion.

i12. Status Report on Actions Taken on Final USAC Audits. For information only. No discussion held.
i13. Review of Revised 2004 USAC Internal Audit Plan – Confidential & Proprietary. For information only. No discussion held.
i14. Review of 37 Contributor Revenue Agreed-Upon Procedures Operational Reports as Prepared by Deloitte & Touche LLP and One Summary Report as Prepared by USAC Internal Audit Division – Confidential & Proprietary – Executive Session Recommended. In accordance with the approved criteria and procedure for conducting USAC Board and Committee business in Executive Session, Mr. Barash recommended that the agreed-upon procedures reports be discussed in Executive Session because discussion of the reports relates to specific internal controls, and/or confidential company data that would constitute a discussion of internal rules and procedures concerning the administration of the universal service support mechanisms where discussion of the matter in open session would result in disclosure of confidential techniques and procedures that would compromise program integrity.

On a motion duly made and seconded, the Board adopted the following resolution:

               RESOLVED, That the USAC Board of Directors determines that discussion of the Contributor Revenue Agreed-Upon Procedures Report labeled US2003OP001 – US2003OP037 and one summary report labeled US2003OP038 shall be conducted in Executive Session.

See Executive Session for a report of the discussion and action taken on this item.

i15. Review of the 3rd Quarter 2004 Programmatic Budgets and Revised Annual 2004 Programmatic Budgets for High Cost and Low Income and Schools and Libraries Support Mechanisms. For information only. No discussion held.
i16.

Review of 3rd Quarter 2004 High Cost, Low Income, Rural Health Care, and Schools and Libraries Support Mechanisms Projections for the April 30, 2004, FCC Filing. For information only. No discussion held.

At 9:47 a.m., on a motion duly made and seconded, the Board voted to move into Executive Session for purposes of discussing the confidential and proprietary items as noted above. The Chair then recessed the meeting. At the call of the Chair, the Board reconvened in Executive Session at 10:02 a.m. Ms. Howard called the roll at the request of the Chair. Seventeen of the nineteen members were present, representing a quorum:

Seventeen of the nineteen members were present, representing a quorum:

Askin, Jonathan

Gumper, Frank – Chair

Baker, Dave Hess, Kevin
Bryant, Anne Hughes, Alison
Buller, Karen Jackson, Jimmy – Secretary
Campbell, Anne Jortner, Wayne – Treasurer
Christensen, Doug Sanford, Jo Anne

Cornell, Diane

Talbott, Dr. Brian
Duff, Bridget Zaina, Lisa – CEO
Eichler, Ed  

One member joined the meeting in progress:

Lubin, Joel – Vice Chair– by telephone

One member was absent:
Sanders, Jay

Other Officers of the Corporation present:

Barash, D. Scott - Vice President and General Counsel
Blackwell, Mel - VP, External Communications and Rural Health Care Division
Carmichael, Mark - Assistant Treasurer; VP, Finance and Financial Operations
Flannery, Irene - VP, High Cost and Low Income Division
Haga, Robert - Assistant Secretary; VP, Strategic Planning and USAC Operations
McDonald, George - VP, Schools and Libraries Division
Scott, Wayne - VP, Internal Audit Division
Others present for the meeting:

Name

Company

Gill, Chuck

NECA Services, Inc.

Hegmann, Bill

NECA

Howard, Cathy

USAC

Lamoureux, Renee

USAC

Miller, Linda

USAC

Nadel, Mark

FCC

Executive Session

a9.   

Miscellaneous.

_02.

Update from Members of the NECA Board of Directors on Recent Events Involving NECA and NECA Services, Inc. – Confidential & Proprietary. Mr. Gumper introduced Mr. Bill Hegmann and Mr. Chuck Gill, Chairs of the NECA and NSI Boards of Directors, respectively. Messrs. Hegmann and Gill reported on recent NECA/NSI events. At the conclusion of the presentation and discussion Messrs. Hegmann and Gill left the meeting.

a5.  

Approval of Course of Action and Request for Budgetary Authority Concerning an Investigative Audit Matter – Confidential & Proprietary. Mr. Scott introduced and briefly discussed this item. The Board determined to amend the resolutions by eliminating the resolution that specifically speaks to hiring three new auditors since the Board already approved such hires under agenda item #aBOD06, the budget issue paper.

Mr. Lubin and Mr. Gumper abstained from voting on this item.

On a motion duly made and seconded, the Board adopted the following resolution as amended (in strikeout):

               RESOLVED, That the USAC Board of Directors approves the recommendation of the USAC Audit Committee to accept the recommendation made by USAC Internal Audit Division management to proceed with the required audit work to investigate the issues raised in the March 5 letter to the USAC CEO concerning the activities of certain contributors to the Universal Service Fund; and

               RESOLVED FURTHER, That the USAC Board of Directors accepts the recommendation of the Audit Committee and authorizes USAC Internal Audit Division management to proceed with hiring three additional auditors.

i4. Report on Legislative and Media Activity – Confidential & Proprietary. Mr. Blackwell informed the Board of potential hearings by the United States House of Representatives Committee on Energy and Commerce, Subcommittee on Investigations and Oversight on the continuing investigation of the Schools and Libraries Support Mechanism.
i7.   Update on Universal Service Support Mechanisms Enforcement Activity – Confidential & Proprietary. Mr. Barash provided the Board with a brief update on an ongoing Schools and Libraries Support Mechanism enforcement issue.
i9.  Report on Corporate Governance Issues – Confidential & Proprietary. Mr. Haga and Mr. Barash reported on several corporate governance issues. After discussion, the Board DIRECTED USAC management to provide the Board with an assessment of the issues discussed at the next quarterly meeting.
i14.  Review of 37 Contributor Revenue Agreed-Upon Procedures Operational Reports as Prepared by Deloitte & Touche LLP and One Summary Report as Prepared by USAC Internal Audit Division – Confidential & Proprietary. Mr. Gumper discussed some of the findings of these audits and reviewed the quality of the deliverables produced by Deloitte & Touche LLP.
a9.

Miscellaneous.

_03.

Report on Application of the Improper Payment Act to the Universal Service Support Mechanisms– Confidential & Proprietary. Ms. Zaina informed the Board of dialogue between USAC staff and the FCC regarding the potential application of the Improper Payment Act to the universal service support mechanisms.

i11.

Status Report on Ongoing USAC Audits. Mr. Gumper reminded the Board that one of the reasons that the Schools & Libraries Committee along with some USAC staff were taking a trip to Whippany, New Jersey later this same day is to brainstorm outreach issues. Dr. Talbott summarized how the members of the Schools & Libraries Committee feel that USAC’s outreach efforts are going.

The Board adjourned from Executive Session and reconvened in open session at 12:14 p.m. to report the discussions and actions of the Committee during Executive Session.

There being no further business, Mr. Gumper adjourned the meeting at 12:16 p.m.

 

____________________________________
Robert W. Haga
Assistant Secretary

___________________________________
Date

Content Last Modified: June 8, 2004