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October 13, 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 23 for FY 2014 will be released on Thursday, October 16th.  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 $2.01 billion.

Wave 69 for FY 2013 will be released on Friday, October 17th.  Funding for FY 2013 is available for Priority 1 services only. Priority 2 funding is being denied at all discount levels.  Cumulative funding for FY 2013 is $2.12 billion.

Wave 94 for FY 2012 will be released on Wednesday, October 15th. Funding for FY 2012 is available for Priority 2 funding requests at 90 percent and denied at 89 percent and below.  Cumulative funding for FY 2012 is $2.86 billion.

Both the E-rate modernization Order (FCC 14-99) and the draft of the Eligible Services List (“ESL”) for FY 2015 indicated that cellular data plans would remain eligible only if the applicant could show that the service was the most cost-effective means of providing on-campus broadband connectivity.  USAC and the FCC made it clear that the cost-effectiveness test would be a difficult one to pass except in special circumstances (a library bookmobile being the only example cited).  More specifically, a footnote in the Public Notice (DA 14-1130) accompanying the draft ESL, stated that “E-rate funding for individual data plans or air cards for individual users is not cost effective when users of those services can already access the Internet through internal wireless broadband networks.”

By all initial indications, this change in policy on cellular data was to apply to FY 2015 and beyond.  But recently we have seen a number of instances in which USAC — apparently with the full blessing of, if not instigation by, the FCC — is beginning to apply the same cost-effectiveness test to certain large multi-user cellular data plans for FY 2014 and earlier.

The following is an example (with applicant-identifying data removed) of an extensive cellular data audit letter that USAC recently issued.  Note that, although the letter references the E-Rate 2.0 modernization Order, it bases many of its questions on the long-standing requirement for cost-effectiveness and prohibition of duplicative services.

We are currently in the process of reviewing your FY2014 application for E-Rate support and have some questions about your Priority One funding requests for wireless data services.

Applicants are required to select cost-effective solutions when seeking E-rate support.  The above-referenced funding request(s) seeks substantial financial support for individual cellular data plans.  In the recent E-rate Order, the FCC explained that individual data plans are generally not a cost-effective means for applicants to purchase on-campus Internet connectivity.

Furthermore, you have also requested E-rate funding for separate high-capacity connections to your schools, which appears to make the individual data plans a duplicative service.  Duplicative services are services that deliver the same functionality to the same population in the same location during the same time.  In the Second Report and Order, the FCC determined that the use of duplicative services contravenes the requirement that discounts be awarded to meet the “reasonable needs and resources” of applicants.

In order for us to reach a funding decision regarding your funding request for (XXX monthly service plans for wireless mobile Internet access service (air card, MIFI or data plans for mobile devices such as tablets) used for educational purposes) request on application XXXXXX, please provide answers to the following questions:

A. Preliminary eligibility of services

For all FYs:

  • Please provide an explanation of why you are requesting funding to purchase a large number of cellular data connections rather than building out your Local Area Network (LAN)/Wireless Local Area Network (WLAN).
  • Please describe who used/will be using the individual data plans and how the connections were used/are to be used.  Are the connections for students, teachers, or staff?  Please provide a breakdown of the number of data plans for students/teachers/other staff.  Where are the services used?
  • Do any of the individual data plans come with free or reduced prices for mobile devices?  If so, because E-rate does not support the cost of mobile devices, have you deducted any cost attributable to the device from the cost of the service plan?  If so, what is the cost allocation?  If not, why not?  Note, your cost-allocation must be based on tangible criteria and reach a realistic result.
  • Are students/teachers/staff that use the individual data plans able to take the devices associated with those data plans off campus?  Can some or all of the students/teachers/other staff use the data services off campus?
  • If so, how many students/teachers/other staff can use the data services off campus and what is the breakdown?
  • If so, because E-rate only supports on campus use, not off-campus use, have you deducted a portion of the cost of the service based on off-campus use?  If so, how did you allocate costs and what, if any, records of off-campus traffic usage did you base it on, and can you provide them?  If not, why not?

(c) If not, what safeguards do you have to prevent off-campus use?

B. Duplicative services and cost-effectiveness

Please answer questions 5-8 for each building used by the students, teachers, or other staff with access to the individual data plans for which you have sought support.

  • For each funding year at issue, how much bandwidth did you or do you need to meet the on-campus educational needs of your students?  For example, for each elementary school you may have determined that in funding year 2013, you needed 100 Mbps connectivity.
  • How much bandwidth do the individual wireless data plans for which you are seeking support provide for the students, teachers, and staff in in the school?
  • What other broadband connections do you have to that building and how much bandwidth do such connections provide?
  • How much bandwidth do the individual wireless data plans for which you are seeking?
  • If the total of 6) and 7) exceeds the total for 5), please explain why your request does not represent a request for duplicative services?
  • For each building, did you investigate the cost of providing the same wireless data access by expanding the capacity of your existing wired or wireless LANs to handle any additional bandwidth required (or purchasing it if you did not have any prior access (including purchasing any necessary wireless access points (WAPs)))?  If not, why not?
  • If you did, a) what was the cost for such upgrades and b) explain why purchasing such upgrades was not more cost effective than purchasing the wireless data plans?  Please provide supporting documentation.  Did you use anything in addition to the FCC Form 470, such as a Request for Proposal, to provide potential bidders with a more detailed description of the service you sought, i.e., to provide connections to the mobile devices at issue here?  If so, please provide such materials.  If your description narrowed your request to only wireless priority one solutions or individual data plans, why did you do so?
  • If you compared the cost of cellular data plans to the cost of upgrading your broadband capacity to handle the wireless devices, did you compare the prices of the options in the marketplace BEFORE considering any E-rate discounts or only AFTER reducing the prices by the expected E-rate discounts?

Note that while this inquiry begins by citing the applicant’s FY 2014 application (still pending), it requests information on earlier funding years as well.  This raises the specter, not only of a funding denial for FY 2014, but of COMADs for the previous year(s).

Editorial:  The retroactive nature of audits such as this is, in our view, unprecedented.  Although we understand the basis for the guidance on cellular data eligibility expressed in both the E-rate modernization Order and the ESL for FY 2015, this is entirely new guidance that had not been provided to applicants in the past.  We hope that the FCC will reconsider the retroactive application of this new guidance to funding years 2014 and earlier.

FCC Appeal Decision Watch:

The FCC denied a request from Le Jardin Academy seeking review of a decision of USAC denying funding under the E-rate program on the grounds that Le Jardin had cancelled the funding request at issue.  After Le Jardin cancelled the funding request, USAC issued a Funding Commitment Decision Letter to Le Jardin indicating that Le Jardin had canceled the FRN.  Nearly two months later Le Jardin filed the instant request for review with the Commission, explaining that that it had cancelled the FRN because the service provider had not filed the forms necessary to be considered an E-rate provider and Le Jardin did not want to jeopardize its other funding requests. However, Le Jardin further explained that the service provider had just informed Le Jardin that the service provider was indeed authorized to provide E-rate services. The Commission found no basis in the record for granting the request for review, since Le Jardin voluntarily and intentionally cancelled one of its FRNs.

FCC Issues Erratum for E-Rate Modernization Order:

The FCC issued an Erratum on Friday, October 10th, 2014 correcting the E-rate Modernization Order and FNPRM that was released on July 23, 2014. While there are clerical corrections for items both within the body of the Order and in its footnotes, some of the corrections clarify operational items, such as:  (a) an example of how the $150 per student pre-discount budget works over the five-year period; (b) a consortium lead’s authorization proof to lead the consortium; (c) the new district-wide discount for any school in that district for Category 2 services; (d) clarification on the urban/rural definitions’ relationship to the national Census definitions; and (e) the poverty level determination for libraries.

E-Rate Modernization Comment Periods:

An invitation to submit comments to the FCC on proposed revisions to the Forms 470 and 471 (and instructions) was posted in the Federal Register.  The due date for comments is October 22nd.  Copies of the revised drafts are available at:

New York Fall E-Rate Training Schedule:

E-Rate Central will be conducting regional E-rate training workshops sponsored by the NYSED during the November-December timeframe.  A full schedule of times, dates, and locations is available in the Training Workshops section of our NYS E-rate website.  The schedule is as follows:

November 14 New York City   (note change of date)
November 17   Southern Westchester BOCES Webinar
November 20 Madison-Oneida BOCES, Oneida
November 21 Mid-York Libraries, Utica
November 24 Capital Region BOCES, Albany
December 4 Nassau BOCES, Westbury
December 4 Erie 1 BOCES, West Seneca
December 15 NYS Library Webinar
TBD Agudath Israel, Brooklyn

New Mexico Fall E-Rate Training Schedule:

Save the date: E-Rate Central will be conducting a full-day E-rate training workshop for applicants sponsored by the NMPED in Santa Fe on Monday, December 8, 2014.  With the new E-rate modernization rules taking effect for FY 2015, training this year is going to be critical.

Half-day workshops will also be at CES in Albuquerque for service providers on December 9th, and in Las Cruces on December 10th.

Michigan Fall E-Rate Training Schedule:

E-Rate Central will be conducting regional/consortium E-rate training workshops sponsored by the TRIG E-Rate Activity group during the October/November timeframe as per the schedule below.  Please see 2014 TRIG Workshops for registration and additional details.

October 22 RNMC at Marquette Alger RESA
October 27 GMEC at Oakland Schools
November 3  CMEC at Genesee ISD
November 7 SWMC at KRESA Service Center
November 10 KIC at Kent ISD
November 24   IMC at Traverse Bay Area ISD

The S&L News Brief for October 10, 2014 notes three items in its weekly news.  Applicants are encouraged to prepare for FY 2015 filings by reviewing the E-Rate Modernization Order, noting changes to such items as program forms, form submission, competitive bidding and contracts, determination of urban or rural status, discount calculations, definitions of Category One and Category Two, applicant budgets for Category Two services, eligible services, filing appeals, invoicing, and invoice deadline extension requests.

The News Brief reminds applicants that the invoice deadline for FY 2013 recurring services is October 28, 2014, just a few days more than two weeks away.  Applicants are reminded, that if they have completed invoicing USAC for services delivered on an FRN and the properly completed invoices have been paid, to check if any funds remain on the FRN.  If funds remain, applicants are urged to file an FCC Form 500 to return the unused funds to USAC, thus making them available for commitments to other applicants.

Lastly, applicants are reminded to submit and certify their FY 2014 FCC Form 486 if they have not already done so.  In general, if committed FRNs are featured on an FCDL dated on or before July 1 and the service start date on those FRNs is July 1, the deadline to file an FCC Form 486, Receipt of Service Confirmation and Children's Internet Protection Act and Technology Plan Certification Form, featuring those FRNs is October 29.