News of the Week

E-Rate for FY 2024:

Wave 6 for FY 2024 was released on Thursday, May 30th, for $41.5 million.  Total funding is now $1.33 billion.  At this point, USAC has already funded 72.3% of the originally submitted applications representing 43.2% of the dollars requested.

E-Rate for FY 2023:

No additional funding wave for FY 2023 was issued last week.  Total funding remains at $2.63 billion.  At this point, USAC has funded 98.3% of the originally submitted applications representing 96.4% of the dollars requested.

The U.S. Congress talks a good game — and sometimes a bad game — regarding broadband internet legislation that would affect schools and libraries, but not much has come of the talk lately.  The following is a brief summary of the initiatives we have been following.

• The Affordable Connectivity Program (“ACP”) officially ran out of money this month and is being shut down.  ACP, while not directly a schools and libraries program, had been providing critical discounted internet services for low-income families benefiting both students and library patrons.  Despite broad bipartisan support in both the House and Senate to extend the program, including a specific proposal to add $7 billion in funding, the issue never came to a vote in either House or even a committee.  While considerable support remains to reinitiate ACP, such an effort is unlikely to succeed unless a permanent funding source can be found, perhaps for a scaled-down ACP-like program.  Simply providing a $7 billion infusion, for example, would lead to a confusing restart with another funding crisis arising next year.
• A group of seven Republican Senators, led by Sen. Ted Cruz (R-TX) have filed a brief in the U.S. Court of Appeals for the Fifth Circuit supporting a lawsuit filed by two parents (“Molak vs. FCC”) worried about the potential for their children to access social media platforms like TikTok and Instagram unsupervised during bus rides to and from school.  This effort is an extension of Sen. Cruz’s earlier criticism of school bus Wi-Fi eligibility.  On the flip side of this issue, Rep. Adam Schiff (D-CA) has introduced the Clarifying E‑Rate Act of 2024, confirming the FCC’s declaratory ruling making bus W-Fi eligible for E-rate funding.  Schiff’s bill, to amend the Communications Act of 1934, would deem E‑rate funding applicable to “schools, buses associated with schools…and other locations where learning occurs as determined appropriate by the Commission.”  The “other locations” portion of that proposed amendment would cover the FCC’s hotspot initiative.
• A bipartisan group of four Senators is supporting the Eyes on the Board Act that was initially introduced by Sen. Cruz in 2023 and is now incorporated within the Kids Off Social Media Act (“KOSMA”).  The Eyes on the Board Act portion mandates that schools must restrict access to social media platforms on any services, devices, and networks supported by E‑rate subsidies.  More broadly, KOSMA would:
  • Prohibit children under the age of 13 from creating or maintaining social media accounts;
  • Prohibit social media companies from pushing targeted content to users under the age of 17;
  • Give the FTC and state attorney generals the authority to enforce the bill; and
  • Follow the existing CIPA framework to require schools to block and filter social media.

ALA, SHLB, SETDA, and CoSN have sent a joint letter to the U.S. Senate Committee on Commerce, Science and Transportation strongly opposing the Eyes on the Board Act section of KOSMA.

• Efforts to further protect children from online dangers are also arising at the state level.  In the month of May alone, we noted:
  • The Maryland Kids Code was signed into law with the aim of limiting the data that could be collected from children online and protecting them from being flooded with harmful material they were not requesting.
  • Gov. Kathy Hochul of New York announced that she wants to explore a ban on personal cellphone internet access usage in schools while, as a compromise, allowing students to keep their phones to stay in contact with their parents.

Upcoming Dates:

Cybersecurity Ex Parte Comments:

With the FCC set to vote on its Cybersecurity Pilot program rules at its open meeting this Thursday, there was a short window of opportunity for interested parties to comment on the proposed rules that were first released two weeks ago (see our newsletter of May 20th).  Whether such comments will lead to any changes in the final rules, is uncertain.  At the very least, however, we note that the following two sets of comments point to sections in the proposed rules that will require clarification:

The State E-Rate Coordinators’ Alliance (“SECA”) recommended the following:

1. A competitive bidding exemption for the Pilot should be provided to cover advanced firewall features bid as a part of basic firewall contracts properly bid for E-rate purposes.
2. Competitively bid master contracts using the E-rate Form 470 process should be available for use by Pilot applicants.
3. The Pilot form filing period should begin no sooner than the start of the 2024-2025 school year, and:
   1. The filing period for the Form 484-Part 1 should be at least 30 days with a deadline on or after September 30, 2024.
   2. The filing period for the Form 484-Part 2, for selected Pilot applicants, should be at least 45 days.
   3. The FCC should clarify the approval process, including opportunities for appeal, of the Form 484-Part 2.
   4. The FCC should also clarify the filing process and deadlines for Pilot versions of the Form 470 and Form 471.
4. The Pilot data reporting requirements should be published at least 15 days before the opening of the Form 470 window.
5. The Eligible Service List for the Pilot should be updated with equipment and services that have substantially similar features or equivalents.
6. The invoice deadline should be 120 days from the end of the service delivery period.
7. The FCC should identify other E-rate-like rules and procedures that will govern the Pilot program.

The Schools, Health & Libraries Broadband (“SHLB”) Coalition, together with ALA, CoSN, and Common Sense, highlighted the following sections of the proposed Pilot rules that require additional clarification:

1. The draft order is unclear as to whether the specified budget amounts are annual or total Pilot program limits.
2. It is unclear as to whether the specified library budgets represent minimum or maximum amounts.
3. The rules should clarify whether the ineligible portion of equipment purchased under the E-rate program (e.g., advanced firewall functions) might be eligible under the Pilot program.
4. The ten-year record retention rule should be clarified to indicate that the provision applies only to documents and does not impose any changes to the current E-rate rule governing the disposal of obsolete equipment components of eligible services.
5. Clarification was also sought regarding:
   1. The timeline for the release of the final Pilot report.
   2. The ability of the Commission to analyze prior to three years.
   3. The ability of the Commission to increase the Pilot budget if supported by the demand.
   4. The timeline on forms submission.
   5. The ability of individual sites within a consortium to apply separately.
   6. Whether various references to the amount an applicant will “receive” is a pre-discount or discounted amount.