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September 15, 2014

Introduction

The E-Rate Central News for the Week is prepared by E-Rate Central. E-Rate Central specializes in providing consulting, compliance, and forms processing services to E-rate applicants. To learn more about our services, please contact us by phone (516-801-7804), fax (516-801-7810), or through our Contact Us web form. Additional E-rate information is located on the E-Rate Central website.

Wave 19 for FY 2014 will be released on Wednesday, September 17th. Funding for FY 2014 is available for Priority 1 services only. Priority 2 funding is being denied at all discount levels. Cumulative funding for FY 2014 is $1.85 billion.

Wave 92 for FY 2012 will be released on Friday, September 19th. Funding for FY 2012 is available for Priority 1 services as well as for Priority 2 services at the 90% discount level. Cumulative funding for FY 2012 is $2.86 billion.

  • Last month, in its S&L News Brief for August 8, 2014, USAC briefly discussed the procedures for filing an FY 2015 Form 470 for contracted services. Because the Form 470 is such a critical and integral part of the E-rate competitive bidding and application process — and because we’re still getting many questions on the Form 470 for FY 2015 — it is worth delving into this issue in more detail.

    Delay in Implementing the Form 470 for FY 2015:

    Usually, well before this time of the year, USAC would have updated its online Form 470 tool to reflect the coming funding year. If you file an online Form 470 for FY 2015 now, however, you will find that the only option in the Funding Year field is 2014. If you submit a paper Form 470, you can write “2015” in that field, but USAC’s only option for now is to data enter it as “2014.”

    The reason given for the delay in enabling the Form 470 for FY 2015 is that the Form 470 (as well as the Form 471) is in the process of being revised. A draft of the new version has not yet been made public. At the very least, the revision is expected to change the current Priority 1 and Priority 2 designations to Category 1 and Category 2, and to eliminate the technology plan certification. Changes to the Form 470 instructions will also be required to reflect the E-rate modernization Order.

    Before the revised Form 470 can be made available, a draft will first have to be sent to OMB for review (as per the Paperwork Reduction Act of 1995). The FCC is expected to take this step later this month. The OMB approval process requires publication in the Federal Register and at least a 30-day comment period. Practically, the revised Form 470 is not likely to become effective before November.

    Interim Use of the FY 2014 Form 470 for Contract Procurements:

    As a preliminary matter, it should be noted that this year’s delay in implementing the Form 470 for FY 2015 is a historically unique problem. Last year, in roughly the same time period, the Form 470 was also being revised. In this case, however, the previous version of the Form 470 had already been enabled for FY 2014. Applicants were free to use the previous version until the revised version became effective in December 2013. The only transitional hitch, affecting a few applicants, was that Form 470s started, but not finished, before the effective date of the revision, had to be redone.

    This year is different. The current version of the Form 470 has not been enabled for FY 2015. Although this may avoid the limited transitional issue that arose last year, it creates a larger issue for applicants seeking to begin their procurement cycles for the coming year.

    To understand the current issue, it is important to understand the E-rate distinction between (a) contracted services and (b), tariffed or month-to-month (“MTM”) services. E-rate rules require contracts for all Category 2 services and many Category 1 services. Obtaining such services usually involves more formal procurement procedures, often including RFPs or the equivalent. E-rate does, however, recognize that certain Category 1 services are often made commercially available on a monthly recurring basis without a formal contract. The Form 471 uses different fields to distinguish between the two types of services. One critical criterion for using tariffed or MTM services is that they must be rebid via a Form 470 each year — specifically a Form 470 for that funding year. A Form 470 for contracted services, on the other hand, is required only when a new contract — often a multi-year contract — is sought.

    For FY 2015 Form 470 purposes, applicants are currently faced with two options. Depending upon the services ultimately utilized, picking the wrong option may lead to funding denials for FY 2015.

                For Tariffed/MTM Services:

    An applicant filing for tariffed or MTM services for FY 2015 must have posted its requirements for such services on a FY 2015 Form 470. Since there is currently no 2015-enabled Form 470, an applicant’s only option is to wait until it becomes available — hopefully by about November.

    In theory, this should not be a problem. Generally, the procurement of tariffed/MTM services is not a complicated process. Assuming that Form 471 applications will not be due until March of next year, waiting until November or December to file the requisite Form 470 merely delays when applicants can begin the FY 2015 application cycle. For some, this is just an annoyance.

    The fear is that some applicants may take advantage of the “FY 2014” Form 470 filing option discussed below, but forget to file a FY 2015 Form 470 for tariffed/MTM services.

                For Contracted Services:

    Recognizing that some applicants, particularly those generally seeking contracts with long procurement cycles, need to file their Form 470s earlier in the year, the FCC has approved the use of the current Form 470, with the default funding year of 2014, if it is clearly marked as being for FY 2015 services.

    The procedure for using this option is described in the SLD News Brief referenced above. Essentially, the process involves filing what would otherwise be an “FY 2014” Form 470, but using the textual capability of Item 13 to explain that the Form 470 is really for FY 2015. The language needed to be able to do this may be as simple as “This Form 470 is for contractual services to be procured for Funding Year 2015.”

    For filing such a Form 470, the specific steps required are as follows:

  • Go to the Apply Online page and click the Create Form 470 button.
  • Choose "FY 2014" in Item 2, Funding Year (currently the only option).
  • Provide the information required, including the services you are seeking.
  • When you get to Item 13 on the form, locate the second text box – the one immediately below the statement "If you are requesting services for which an FCC Form 470 cannot yet be filed online, include that information here."
  • In that text box, clearly indicate that you intend this form to be applicable for FY 2015.
  • Complete the remainder of the form and certify it.

 

Final Warning:

Until the revised Form 470 becomes effective, or unless and until the FCC changes the FY 2015 application process to permit earlier use of the current Form 470 enabled for FY 2015, applicants have to be very careful in filing a Form 470. With the proper language in Item 13, the current Form 470 can be used for FY 2015 contracted services, but not for FY 2015 tariffed/MTM services.

To repeat the warning in the SLD News Brief, applying to both the Brief and the discussion above:

Please note: If you are requesting services for which you will sign a contract, you can use the above guidance now. HOWEVER, if your services will be non-contracted services provided under tariff or on a month-to-month basis, you MUST wait until the FY2015 option is available online before you file your FCC Form 470.

E-Rate Modernization Comment Periods:

The following two E-rate-related FCC proceedings are currently out for public comment:

  1. Comments on the Further Notice of Proposed Rulemaking (“FNPRM”), issued as a part of the first E-rate modernization Order (FCC 14-99), are due today, September 15th; reply comments are due September 30th. (See our newsletter of August 4, 2014.)
  2. Reply comments on the draft Eligible Services List (“ESL”) for FY 2015 (DA 14-1130) are due September 18th. (See our newsletters of August 11, 2014 and

    The S&L News Brief for September 12, 2014, discusses Category 2 school and library budgets for FY 2015 and FY 2016. Category 2 refers the class of products and services eligible for E-rate funding as of FY 2015 to support what the FCC refers to as “Wi-Fi” networks — more broadly wired and wireless local area networks (“LANs”) — to bring broadband services into classrooms and public library spaces.

    The budgetary mechanism was established in the FCC’s modernization Order as a new way to limit and allocate internal connections funding. It replaces the older Priority 2 two-in-five rule. There is no corresponding budgetary mechanism for Category 1 services.

    Specifically, the new budgetary rule limits an individual school or library to Category 2 discounts over a five-year period based on a maximum pre-discount budget of $150 per student for schools or $2.30 per square foot for libraries. For a very small school or library, the rule sets a minimum pre-discount budget of $9,200.

    The News Brief reviews a number of key aspects of the budget and funding process, namely:

    1. Separate budgets apply to each individual school or library, meaning:
      1. A school district or library system would have separate and distinct budgets for each of their component schools and libraries.
      2. There is no budget for a NIF (or even a NIF with classrooms).
      3. A school or library with a separate annex or additional site(s) would share one budget.
      4. The school district or library system, on the other hand, would not be able to combine its component budgets. To the extent eligible equipment is shared, the costs would have to be allocated to the individual budgets.
    2. Discounts on the maximum five-year budget total would have to be applied for in the funding year or years in which the funding is to be used. This could be all in one year, or spread out over five years (beginning with the first year of funding).

    The News Brief only briefly mentions, or in other cases ignores, some of the complications inherent in this process that should be recognized. Most importantly, it should be noted that the budget numbers appear to be designed to provide funding totaling about $5 billion over a five-year period to support the average Wi-Fi needs of all schools and libraries at all discount levels. Given the limited availability of Priority 2 funding in the past, this is the good news. The not so good news is that:

    1. Category 2 funding in any given year — and certainly in FY 2015 — is unlikely to meet the needs of all applicants. Thus funding for all applicants is not guaranteed. To the extent funding in a given year is less than the Category 2 demand, available funding will be allocated, first by discount rate bands (starting with the highest), and second, if a full discount band cannot be funded, by actual student eligibility percentages within that band (again starting with the highest).
    2. As a result of last minute compromises in the Commission’s approval of the E-rate modernization Order, the new budgetary rules apply only to applicants funded in FY 2015 and FY 2016. Unless the FCC acts to extend the process for FY 2017 and beyond, or comes up with another process, the Category 2 funding allocation process apparently defaults to the equivalent of the previous Priority 2 allocation process, presumably with the reinstatement of the two-in-five rule.