The FCC’s final rules for the Emergency Connectivity Fund (“ECF”) are due to be released today, May 10th. The past week has been a busy one for everyone involved — applicants, service providers, associated organizations, USAC, and the FCC itself.
Following the release of a draft of the new ECF rules on April 30th (see our newsletter of May 3rd), the FCC gave interested parties the opportunity to make ex parte presentations through Wednesday, May 5th, to suggest changes and/or corrections. The invitation was not ignored. As of last Friday afternoon, almost fifty ex parte reports had been filed with the Commission (see the FCC’s Electronic Comment Filing System for Docket No. 21-93).
For the most part, commenting parties recognized that the draft rules were unlikely to change dramatically when finalized due to the accelerated ECF implementation period. Commenters, therefore, focused more narrowly on suggested modifications rather than on a broad restructuring. Several of the more important issues addressed are summarized below with links to representative filings.
- Application Periods: The draft rules proposed an initial application window covering retroactive expenditures (not covered by other federal COVID funding) incurred from July 1, 2020, to April 30, 2021. At least one additional window would cover incurred or projected expenditures beginning as of May 1, 2021.
A common request was to expand the initial reimbursement period back to at least March 1, 2020 (e.g., NYCDOE) or January 27, 2020 (e.g., CGCS) to more fully cover the start of the pandemic. More broadly, but perhaps less likely, others recommended a single window starting from an earlier date and extending into the future, say through June 30, 2022 (e.g., Remote Learning Coalition).
- Allocation of Limited Funds: The FCC has proposed that if ECF demand exceed the $7 billion program cap, funding would be allocated first to those applicants with the highest discount rate (or even the highest NSLP percentage) much like the old Priority 2 rule. To assure that all applicants would receive some funding, several parties have proposed pro rata allocation (e.g., SECA).
- Equipment and Service Eligibility: The FCC’s draft rules are focused on provider-supplied internet services and devices to unserved students and patrons. The construction of facilities to extend school and library internet services off-campus to reach unserved households is conditioned on a showing that commercial service to those areas is unavailable. Numerous comments sought clarification of related certifications and the elimination of the FCC’s cost allocation rule for off-campus internet services (e.g., SHLB and USTelecom).
A related issue involves the treatment of connected end-user devices that have never before been E-rate eligible. The proposed rule requires a strict one-to-one accounting of devices with user names and the traditional ten years plus record retention. Comments indicated that this was problematic in several ways. EdLiNC, for one, suggested that applicants be allowed “to purchase additional devices to account for damage and breakage to permit uninterrupted learning.” ALA was concerned about the confidentiality of patron data noting that many libraries, often by law, proactively delete loan records when any items are returned. If the rule requiring retention of patron data is left unchanged, many libraries nationwide will be legally unable to benefit from ECF support.
- Competitive Bidding: Many parties supported the FCC’s plan not to require competitive bidding for ECF purchases (presumably eliminating Form 470s while still requiring compliance with state and local procurement rules). An ask by CTIA that the FCC clarify that the Lowest Corresponding Price (“LCP”) rule not be applied to ECF is likely to fall on deaf ears.
- Invoicing: NAIS expressed disappointment that the FCC proposed to require only BEAR invoices arguing that many applicants will be unable to front-end ECF purchases. Other filers proposed to circumvent that barrier by permitting BEAR ECF “reimbursements” upfront based upon applicant purchase orders or vendor invoices.
This has been only a brief review of ex parte comments filed within a very short time in an attempt to support or modify provisions of an early draft of the FCC’s ECF rules. With the final rules set to be released today, we will see what effect, if any, these comments made. Please see next week’s newsletter.