News of the Week

Funding Status

Wave 14 for FY 2011 will be released on Tuesday, September 20th.  Cumulative funding for FY 2011 is $846 million.  Only Priority 1 applications are being funded at this time, but Priority 2 funding at 90% is expected soon.  Other FY 2011 funding news includes:

1. Last week, the status of seven of the twenty-two EDU2011 applications for the "Learning On The Go" wireless pilot program had changed to one of the "Quality Assurance" designations.  This suggests that they may be funded soon, as early as this week.
2. The week before, USAC released Wave A01, the first appeal wave for FY 2011.  Information on this wave does not show up in the SLD's Commitments tool, but can be searched by state using the SLD's Data Retrieval Tool.

Wave 67 for FY 2010 will be released on Wednesday, September 21st.  Cumulative funding for FY 2010 is $2.59 billion.  As of this wave, Priority 2 funding will include FRNs at 80% and above (down from the previous 81% threshold).  USAC reviews of Priority 2 funding requests at 79% and below, also approved by the FCC, will begin shortly.

Wave 93 for FY 2009 will be released on Monday, September 19th.  Cumulative funding for FY 2009 is $2.87 billion.

Clerical and Ministerial Errors

A potentially large battle is shaping up this year over the correction of FY 2011 application errors during PIA.  Here's the background:

In mid-April, the FCC issued an Order (FCC 11-60) extending the deadline for making certain corrections to existing Form 471 applications during the PIA review process.  Previously, at least technically, corrections for "clerical and ministerial" errors had been permitted only during the 20-day RAL period early in the SLD's application review cycle.  The new Order permitted corrections any time during the review process up until the funding commitment is issued.  A stated purpose of the Order was to avoid unnecessary appeals to the FCC that would otherwise be required — and typically granted.

Unfortunately, the basic text of the FCC's Order appears to define clerical and ministerial orders quite narrowly noting that such errors "include only the kinds of errors that a typist might make when entering data from one list to another, such as mistyping a number, using the wrong name or phone number, failing to enter an item from the source list onto the application, or making an arithmetic error."

Current PIA procedures take this language quite literally — indeed, quoting it exactly when addressing a request to correct a specific error.  PIA then goes on to request quite detailed information on the supposed error, asking in part:

Please explain how the error occurred.  Provide a copy of the source or supporting documentation you used to prepare your Form 471 application, if applicable, that features the correct information.  Examples of source documentation are contracts, vendor quotes, vendor bills, invoices, RFPs, NSLP data, board minutes, etc.

In addition to holding up the funding of a number of applications, these procedures seem destined to generate more appeals, not less.

A possible answer to this dilemma lies in an important footnote in the FCC's Order that does not appear to be reflected in the new PIA procedures.  Footnote 12 — to the very sentence PIA quotes — states that many more examples of correctable errors are found in an earlier FCC appeal Order designated Ann Arbor Public Schools, et al (DA 10-2354).  Ironically, less than two weeks before the FCC 11-60 Order was released, in the SLD's News Brief for April 8, 2011, USAC had discussed such correctable errors and had referenced the Ann Arbor decision.  The key paragraph of this appeal decision reads:

These errors include: failing to timely notify USAC to correct a USAC clerical error, entering the wrong FCC Form 470 number, wrong billed entity number, or wrong billed entity number/worksheet number on their FCC Form 471; entering the wrong name or service provider identification number (SPIN); entering the wrong expiration date for a contract; erroneously characterizing the purchase and installation of equipment as a recurring service; making a calculation error; entering the monthly charge as the annual charge; entering the discounted annual price rather than the pre-discount annual price; entering the amount that a service provider was mistakenly temporarily charging rather than the contracted monthly rate; miscalculating its discount rate; failing to separately list a building where equipment was to be located; failing to enter a request for telecommunications service that was clearly indicated on its item 21 attachment; basing its block 5 funding requests on the wrong FCC Form 471 block 4 worksheet; selecting the wrong term or service; selecting the wrong category of service in its FCC Form 471; making a typographical error in recording the cost of ineligible equipment in response to a USAC request for additional data; failing to follow the correct procedure for modifying its FCC Form 471; mistakenly providing the wrong documentation concerning a purchase; and describing the service it purchased as for its entire district when it was only intended to serve a single elementary school.  In addition, one applicant omitted a service from a service substitution request, and another entered the wrong application number on the certifications it submitted and apparently failed to press the submit button to submit its otherwise completed application.

Our belief is that USAC and the FCC will ultimately agree on a better definition of correctable "clerical and ministerial" application errors in line with the more flexible Ann Arbor decision.  In the interim, we recommend the following:

1. If the errors in question are of the typist-nature currently used by PIA, respond to the PIA inquiries as precisely as possible.
2. For other types of unintentional errors explain, and document wherever possible, the cause of the errors.
3. If the errors are not corrected by PIA, resulting in funding denials or reductions, be prepared to appeal.

E-Rate Updates and Reminders

Proposed Changes to COPPA:

Although there is no direct impact on E-rate's CIPA rules, it is interesting to note that the Federal Trade Commission ("FTC") just released a Notice of Proposed Rulemaking ("NPRM") of proposed changes to the Children's Online Privacy Protection Act ("COPPA") rules.  As noted in the FTC's press release:

The Federal Trade Commission is seeking public comment on proposed amendments to the Children's Online Privacy Protection Rule, which gives parents control over what personal information websites may collect from children under 13. The FTC proposes these amendments to ensure that the Rule continues to protect children's privacy, as mandated by Congress, as online technologies evolve. The Commission proposes modifications to the Rule in five areas: definitions, including the definitions of "personal information" and "collection," parental notice, parental consent mechanisms, confidentiality and security of children's personal information, and the role of self-regulatory "safe harbor" programs.
The Children's Online Privacy Protection Act (COPPA) requires that operators of websites or online services directed to children under 13, or those that have actual knowledge that they are collecting personal information from children under 13, obtain verifiable consent from parents before collecting, using, or disclosing such information from children. The FTC's Rule implementing the COPPA statute became effective in 2000.

SLD Fall Training Status:

The first of the SLD's fall training workshops will be held next week on Monday, September 26th, in Washington, DC. Subsequent workshops are being held regionally on the following schedule:

Typically, these workshops provide significant new and/or clarified information on E-rate rules, procedures, and other developments.  E-Rate Central will be reporting on these workshops in its October newsletters.

Schools and Libraries News Brief dated September 16 – Tips for this Fall

Last week's SLD News Brief for September 16, 2011, provides several suggestions for applicant activities for the next few months leading up to the opening of the Form 471 window for FY 2012.  The tips include the following:

1. Finish filing BEAR forms for FY 2010 recurring services.  The invoice deadline is October 28, 2011.
2. Check the status of FY 2010 non-recurring services.  Unless already extended, requests for extensions beyond September 30th must be made by that date.
3. File Form 500s to free up and return unused funding to USAC.
4. Submit Form 486s for funding already approved for FY 2011.  The Form 486 deadline is 120 days from the later of the FCDL date or the start of service (which, if July 1st, would be October 31, 2011, this year).