News of the Week

FY 2020:

Wave 39 for FY 2020 was released on Thursday, January 21st, for a total of $23.0 million.  Cumulative commitments are $2.14 billion.   Nationwide, USAC has now funded 96% of the FY 2020 applications representing 77% of the requested funding.

FY 2021:

USAC opened the FY 2021 Form 471 application window on Friday, January 15th.  The window will close on Thursday, March 25th, at 11:59 p.m. EDT.  For additional information on the FY 2021 application window, see the USAC Special Edition Schools and Libraries News Brief dated December 22, 2020.

As of last Monday, the FCC had received over 150 comments on the implementation of the Emergency Broadband Benefit (“EBB”) program, a component of the recent COVID stimulus legislation (the Consolidated Appropriation Act, 2021).  When implemented, the EBB program will provide discounts up to $50/month ($75/month in tribal areas) on internet services (and up to $100 for connecting devices) for low income households for an “emergency period” ending six months after the government deems that the COVID crisis has been resolved.  The program is expected to be put in place in less than 40 days and last at least through 2021.

Most of the comments received responded directly to the issues raised in the FCC’s Public Notice (DA 21-6) including:

• Qualifying service providers for participation in the EBB program
• Interpreting the “standard rate” for services subject to the discount
• Verifying household eligibility
• Processing supplier reimbursements

Particular attention should be paid to the comments filed by Common Sense Media, the Council of the Great City Schools, EducationSuperHighway, the State E-Rate Coordinators’ Alliance (“SECA”), and SETDA, CoSN, and All4ED.  All five responses note that a growing number of schools are already providing at-home financial support covering mobile hotspots, computing devices, and ongoing monthly internet services for students who would not otherwise be able to afford the necessary tools and services for remote learning.  The comments stress that the rules should make it clear that EBB discounts should apply to eligible student households regardless of whose names the monthly service subscriptions are held (i.e., the households or the schools).  Such rules would have the effect of focusing initial service provider EBB participation on the important school market and encouraging even greater school participation in the EBB program.

Another important point raised by these comments is the need for EBB rules to specify appropriate levels of internet service — an issue not addressed in the FCC’s Public Notice.  Presumably, by including “Broadband” in the EBB program’s name, any service meeting the FCC’s definition of advanced telecommunications — i.e., 25 Mbps/3 Mbps (the recommended minimum bandwidth for a Zoom meeting) — would suffice.  Asynchronous internet service of this type may meet the basic needs of single-user households but greater bandwidth, will be required for families with more than one concurrent remote learner.  Similarly, to the extent the EBB program supports cellular data services, remote student learning cannot be constrained by monthly data caps.

All initial EBB comments can be seen and reviewed in the FCC’s Electronic Comment Filing System by entering “20-445” in the “Specific Proceeding” field and clicking the “Search” bar at the bottom of the page.  Reply comments on this proceeding — hopefully including those supporting proactive school participation as discussed above — are due February 16th.  Interested parties may want to participate in a virtual roundtable discussion on EBB (DA 21-91) that the FCC has scheduled for February 12th.  The topic is also set to be discussed in the FCC’s next open meeting on February 17th.

In another move to support funding for remote learning, the Schools, Health & Libraries Broadband Coalition (“SHLB”), and an impressive list of other educational organizations*, filed an FCC petition last week seeking an expedited declaratory ruling and waivers to allow off-campus use of E-rate funds during the COVID-10 pandemic.  The SHLB petition asks the FCC to:

• Clarify, for the duration of the pandemic, off-campus use of E-rate funded services used to enable remote learning constitutes an “educational purpose” under E-rate rules.
• Immediately declare that the cost-allocation of currently eligible E-rate services used off-campus is no longer required.
• Open an additional window to allow applicants to apply for additional E-rate funds for both FY 2020 (retroactively to the extent necessary) and FY 2021 to support off-campus services for remote learning for students and staff.  For purposes of this window, the FCC should waive any rules necessary (e.g., competitive bidding and eligible services) to allow applicants to take advantage of the additional funding.

Given President Biden’s recent Executive Order on Supporting the Reopening and Continuing Operation of Schools and Early Childhood Education Providers, which encouraged the FCC “to increase connectivity options for students lacking reliable home broadband,” and FCC Chair Jessica Rosenworcel’s longstanding support for using E-rate to do so, the SHLB petition is likely to be well received.  The next step, should the FCC agree, would be the release of a Public Notice (much like the EBB notice discussed above) with a request for public comment.

Upcoming E-Rate Dates:

FCC Streamlined Decisions:

The FCC issued another set of “streamlined” precedent-based decisions (DA 21-92) last week.  As with past streamlined decisions, applicants facing similar problems as those addressed in these decisions may garner useful information by carefully reading the additional FCC explanations found in the footnotes.  The original appeal and waiver requests can be found online in the FCC’s Search for Filings under Docket 02-6.

In January’s streamlined decisions, the FCC:

1. Dismissed on Reconsideration:

• • One Petition for Reconsideration involving the failure to file a Form 470 and wait the required 28 days.  In denying the petition, the FCC found that “Although the petitioner filed a petition for reconsideration citing a different FCC Form 470 number, we find that the form provided on reconsideration was used for a different procurement and does not cure the underlying competitive bidding violation.”

2. Granted:

• • Two Requests for Waiver for which the applicants inadvertently listed the wrong service start date on their Form 486s.
  • Nine Requests for Review and/or Waiver for ministerial and/or clerical errors involving incorrect pricing.
  • One Request for Review and/or Waiver in which the FCC found that the applicant did in fact issue an RFP that was properly uploaded with the FCC Form 470 and provided sufficient information to enable service providers to formulate responsive bids.  As a result of this finding, the FCC also granted an extension of the applicant’s special construction service delivery deadline.
  • Four Requests for Waiver for late-filed FY 2020 Form 471 applications — two filed less than the standard 14 days after the close of the window; one filed less than 60 days after the close of the window; and one filed late due to circumstances beyond the applicant’s control directly related the pandemic.
  • One Request for Waiver for a late-filed Form 486 wherein “the applicant demonstrated good cause for the late filing.”
  • Three Requests for Waiver (from one applicant) for contracts, not signed by the time the applications were filed, but signed “shortly after.”
  • One Request for Waiver for a service implementation delay.
  • Four Requests for Waiver for untimely filed appeals “only a few days late” or filed “within a reasonable period of actual notice” of a USAC decision.
  • One Request for Waiver, partially granted, for invoice deadline extensions on funding requests awaiting post-commitment decisions.

3. Denied:

• • One Request for Waiver for an invoice deadline extension.
  • Ten Requests for Waiver sought by applicants relying on Form 470s that did not seek bids on the type of E-rate services later requested.

USAC’s Schools and Libraries News Brief of January 29, 2021, discusses a new change to USAC’s review process for Service Provider Invoice (“SPI”) forms.  Effective last Friday, USAC will send “Service Certification” forms to applicants if there are questions concerning invoices submitted by the applicants’ service providers.  Most typically, these certifications are sent in connection with Category 2 installations in order to confirm that equipment has in fact been delivered and/or installed (if appropriate).  USAC suggests that applicants let their service providers know when they have completed and returned the Service Certification to USAC, for example, by copying the service provider on the message to USAC.

USAC’s News Brief also reminds applicants and service providers that, as a result of the pandemic, the FCC had extended a number of invoice deadlines last April.  Most importantly, the invoice deadline for FY 2019 recurring services, which normally would have been October 28, 2020, was extended 120 days to February 25, 2021 — less than a month away.  USAC provided the following tips for those new to invoicing who intend to submit invoices by February 25th:

• Gather your documentation.
• Verify your One Portal login.
• Get a PIN.
• Complete your invoicing for FY 2019 recurring services and special construction.
• If additional time is necessary, request an invoice deadline extension.