Here is the text of comments that Funds For Learning sent to the Federal Communications Commission Feb. 15 concerning the agency's proposal for implementing the E-rate portion of the Children's Internet Protection Act. The FCC is accepting reply comments for 22 days from that date.
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Federal-State Joint Board on Universal Service ) CC Docket No. 96-45
Magalie Roman Salas
Office of the Secretary
Federal Communications Commission
445 12th Street SW
Washington, DC 20554
RE: Comments on the Further Notice of Proposed Rule-Making, Adopted
January 22, 2001
Funds For Learning, LLC is an educational technology consulting firm that has focused on the E-rate program since the company's inception in 1997. We work with both schools and libraries to help them understand the E-rate process and to complete applications and document requests for E-rate funding. We also work with companies that want to support their customers that participate in the program. From our vantage point of working with both applicants and service providers, we offer these comments on the Federal Communications Commission's proposal for implementing the E-rate provisions of the Children's Internet Protection Act (the so-called "CHIP Act.")
At the outset, we should make clear that we believe that congressionally mandated filtering requirements are a mistake, and that each school and library should be permitted to decide for itself whether to control the Internet content its students and patrons can access. Indeed, one of the guiding principles of the E-rate program has been to allow individual schools, school districts and libraries to determine how to best meet their needs through careful technology planning and their own determination of the products and services that they wish to purchase. However, recognizing that the FCC is required by law to issue regulations implementing this law, our comments will focus solely on the potential impact of the FCC's proposed regulations on administration of the E-rate program.
Issues for Comment
Obtaining certifications: We agree with the commission that the most efficient and effective way to obtain a certification of compliance with the law, without imposing an unnecessary burden, is to ask applicants to specify that they are in compliance, or that the law does not apply. However, we believe that using different language than what the commission suggested would provide applicants with a clearer understanding of the nature of compliance.
The CHIP Act includes a provision (Section 1721, 5, E, ii (II) (aa)) that specifies that a school "for the first program year after the effective date . . .in which it is applying for funds. . .shall certify that it is undertaking such actions, including any necessary procurement procedures, to put in place" an Internet safety policy and technology protection measures. A similar provision applies to libraries. Accordingly, we believe that in the first funding year, applicants should be given a choice of:
A) "I certify that the recipient has met the pertinent compliance requirements of the Children's Internet Protection Act."
B) "I certify that the recipient is in the process of complying with the pertinent requirements of the Children's Internet Protection Act."
C) I am not required to comply with the Children's Internet Protection Act because I am seeking support only for telecommunications services."
Those statements would parallel the formulation used on the Form 471 application when schools and libraries are asked to describe the status of their technology plans. This language would help applicants understand what they are actually required to do, particularly in the law's first year when they are most likely to be confused.
Proposed Form for Certification: We agree that the Form 486 is the best mechanism for obtaining the required certification. However, we see a potential problem in the law's requirement that certifications must be filed on or before Oct. 28, 2001. In its current form, the Form 486 may not be filed until after services are delivered. For most telecommunications services and Internet access arrangements, that start date would normally be July 1, 2001, providing plenty of time to get the Form 486 filed to meet the deadline. However, if a school has sought support only for internal connections, and does not plan to start the installation until later in the funding year, it could not file the Form 486 until that work had begun, a date that could fall after Oct. 28, 2001. It's possible, too, that an applicant could file a Form 486 for telecommunications services starting on July 1, 2001, which would not make it subject to the CHIP Act, and a Form 486 for internal connections projects much later in the year, which would make it subject to the law.
Further, the deadline assumes that the Schools and Libraries Division will complete all of the Year 4 funding commitments on a timely basis. While we understand that the SLD intends to complete this work by July 1, 2001, we recognize that the approval process requires continual interaction with applicants at a pace that is not completely under the SLD's control. Meeting the July 1 deadline will require the SLD to complete the process more than four months faster than it has been able to in the past two years. Because a school district cannot file a Form 486 until it has received an approved funding commitment, the October deadline may prove to be too ambitious for all of the parties involved in the process.
We see two ways that this problem could be addressed. In what we acknowledge would be a liberal interpretation of the law, the FCC could take the position that the Oct. 28, 2001 date is the date by which the FCC must implement the certification form, and that any applicant filing a Form 486 after that date would have to use a revised Form 486 that included the certification. Or the FCC could add a separate certification block to the Form 486 and require that applicants who expected to receive funding in Year 4 would have to file the form by that date, whether or not they had begun receiving services. This application could reference the pertinent Form 471 numbers, but not specific Funding Request Numbers. This approach, however, would increase the paperwork burden for some applicants, not to mention the administrative burdens that the SLD would have to shoulder. (We also note that this would serve to "complicate" the Form 486 less than a year after the SLD attempted to simplify it.)
In implementing the legislation, the FCC should remain cognizant of the fact that although the instructions to the Form 486 specify that the form should be filed within seven days of the receipt of services, in fact, these filings have tended to lag several months behind when services actually begin. If applicants will, in fact, be required to file a Form 486 by Oct. 28, 2001, that requirement must be well publicized to the applicant community.
Certification in Future Years: The FCC has proposed shifting the certification to the Form 471 in future years. We believe, however, that the Form 486 should be retained as the certification mechanism. Although the law puts the emphasis on the application process by referring to "for the second program year. . . in which it [the school or library] is applying for funds," the law also emphasizes the "receipt" of funds by asserting that schools and libraries "may not receive services at discount rates" unless they comply with the law.
At the time a school or library files a Form 471, it does not know whether it will, in fact, receive the discounts it requests. In fact, for lower-discount schools requesting internal connections support, the process amounts to a calculated gamble. Thus we believe that E-rate applicants should not have to comply with the law's requirements until they are, in fact, in a position to actually receive funding through the Form 486 process. We believe that that will continue to be the correct point at which to obtain the certification, just as the FCC chose the submission of that application as the point by which an applicant had to have its technology plan approved.
In the second year of the new requirements (the fifth funding year), the law permits applicants who are unable to meet the deadline because of local procurement rules, regulations or competitive bidding requirements "to apply for a waiver." The least burdensome way to accomplish this, for both applicants and administrative agencies, would be to modify choice "B" in the certification language suggested above. Such a construction might be "I certify that the recipient is in the process of complying with the pertinent requirements of the Children's Internet Protection Act, but is delayed by state and local procurement regulations or rules involving competitive bidding. The recipient will be in compliance by [the date that the FCC establishes as the start of the third year, under the law]."
Entities Making a Certification: We believe that most school districts will be in a position, if necessary, to make the required certification on behalf of their schools.
The required certification is, however, more burdensome for consortia. Although consortia seeking support for services beyond Plain Old Telephone Service are already required to certify that all of their members have approved technology plans, that is comparatively easy for statewide consortia because state educational and library agencies generally serve as the approval agency for these tech plans. A requirement that a consortium must know where each member stands in regard to content management is more burdensome, but the FCC may not have any better choice.
However, we believe that the FCC should provide some provision in case a consortium member is found not to be in compliance with the law. Surely such a finding should not jeopardize the total funding commitment for a consortium, either while it is under review or after it has been approved. Rather, it would seem fair to require the non-compliant participant to return its share of the funding, if already committed, but not to adjust the funding level for the rest of the consortium, or the approved discount rate, if a consortium member is later found not to be in compliance. In cases where funds do not flow directly to consortium members, the consortium could be asked to return a pro-rata share of its funding commitment, based on the amount attributed to the non-compliant member.
Internet Safety Policies: As long as applicants are not required to have an approved Internet safety policy in place by Oct. 28, 2001, we believe that the timetable provided in the CHIP Act under Sections 254 (h) (5) (E) and 254 (h)(6)(E) is reasonable and could be applied to the policy described in Section 254(l). This timetable would, in effect, waive the requirement until the program's second year if an applicant could certify that it had begun the process of developing a policy.
Because most school districts already have Acceptable Use Policies in place, we assume the FCC's position will be that if an E-rate applicant's policy already addresses the issues detailed in the Section 254(l) of the legislation, it will not be required to devote scarce resources to going through the motions of re-adopting its Acceptable Use Policy. We encourage the FCC to make this clear in its implementing regulations.
Definition of "Technology Protection Measure": The CHIP Act did not directly address the question of what constitutes a "technology protection measure." We encourage the commission to adopt a definition that is as broad as possible.
Schools have many different content management approaches available to them. In addition to filtering software that can be installed at the server or client level, many districts access the Internet through Internet Service Providers or statewide networks that already have installed filtering controls. Further, many districts make use of portals or so-called "green spaces" to give their students access to only a limited number of pre-screened sites. In addition, some districts use a variety of approaches that are suited to particular age groups. Regulations implementing this law should permit school districts to choose a content management solution or solutions that best fit the needs of their particular technology and student body, not to mention their educational philosophy.
Further, we encourage the commission to expand the eligibility of filtering technology for E-rate support, an idea that was supported by President Bush in his recently released education reform package entitled "No Child Left Behind." This could be accomplished easily by modifying the definition of eligible internal connections to be products and services "necessary to transport information permissible under the CHIP Act all the way to individual classrooms."
The way the E-rate rules are currently applied could have the unintended consequence of distorting the market for filtering solutions, now that they appear to be required by law. For instance, while filtering software per se is not currently eligible for support, it appears that a school district (at any discount rate level) can receive support for filtering if it is provided by an Internet Service Provider as part of a bundle of basic services that is competitively priced. We do not think that the law, or the commission, intended that schools would be directed to a particular content management solution because of an anomaly in the application of E-rate eligibility rules.
Further, we urge the commission to revisit the eligibility of caching servers. Caching servers provide school districts with a cost-effective way of managing filtering and reducing the amount of bandwidth they need to purchase to supply their students with Internet access. To the extent that the E-rate program's goals include promoting the most cost-efficient solutions, caching servers should be added to the list of server types that are eligible for support to help schools implement this cost-effective approach to Internet content management.
Treatment of Administration Buildings: Under current regulations, E-rate support can be provided to school administrative buildings that are part of the "network of shared services for learning." We ask the commission to make clear that the CHIP Act applies only to school buildings, not to administrative buildings to which children do not have unsupervised access. We know of at least one large Virginia school district that has installed filters on school computers that are used by adults, but not on the computers used in administrative buildings.
Congressional Support for Direct Payments to E-rate Applicants
We would like to bring to the commission's attention the fact that the CHIP Act includes language that could address one of the fundamental difficulties of the E-rate program, namely, an apparent prohibition on direct payments to E-rate applicants.
Up to now, the FCC has taken the position that Congress required it to distribute and recoup all E-rate discounts through service providers, rather than directly to schools and libraries. This has forced the FCC to impose such complicated procedures as the Form 472 (Billed Entity Applicant Reimbursement Form) process through which the applicant is reimbursed for eligible purchases that it has already made through a payment to its service provider that must then be transferred to the applicant. In addition, FCC regulations require service providers to, in effect, serve as agents of the Universal Service Administrative Company in recouping funds that are found to have been committed in error to a school or library.
The CHIP Act specifies that a school or library that "knowingly fails to ensure the use of its computers in accordance with a certification under subparagraphs (B) and (C) shall reimburse all funds and discounts received under this subsection for the period covered by such certification." Clearly, Congress here assumed that direct payments could be made between applicants and USAC, and, presumably, vice versa.
This language may provide the FCC with the congressional mandate it needs to simplify those procedures in a way that makes both administrative and financial sense. School districts, for instance, would no longer have to enlist the help of USAC in forcing recalcitrant vendors to remit BEAR checks to them. In our own experience, for example, we know of a South Carolina school district that has been waiting for more than a year for a company to remit more than $162,000 worth of approved BEAR payments for Year One. In addition, on Feb. 12, 2001, the SLD posted what it called its "Good Samaritan" procedure to provide relief to school districts whose vendors went out of business or filed for bankruptcy before processing their BEAR reimbursements. If reimbursement payments could be made directly to applicants, as it appears the CHIP Act would permit, these kinds of problem could be avoided.
We encourage the commission to consider these issues as this new requirement is added to the gantlet of regulations through which an E-rate applicant must run. We also encourage the commission to adopt rules that will provide applicants with the maximum amount of flexibility as they try to tackle these difficult issues.
Funds For Learning, LLC
2111 Wilson Blvd. #700
Arlington, VA 22201
 See, for example, Quality Education Data's fourth annual survey, "Internet Usage in Public Schools," dated May, 1999.
 For a fuller discussion of these approaches, see "Safeguarding the Wired Schoolhouse: A Briefing Paper on School District Options for Providing Access to Appropriate Internet Content," a white paper prepared by the Consortium for School Networking.
 In a revision of his April 2000 Texas Law Review article "The First Amendment's Limitations on the Use of Internet Filtering in Public and School Libraries: What Content Can Librarians Exclude?," former FCC attorney Mark Nadel notes that during debate over the CHIP Act, one of the bill's sponsors, Sen. John McCain, said, "The phrase ‘a system to filter or block' is intended to provide maximum discretion. . . [and] not intended to be limited to software based systems, but it is intended to encompass all technologies available now and as technology develops." Further, in the late 1980s, the Congressional Office of Technology Assessment adopted a broad definition of "technology," which included not only physical apparatuses, but also "techniques" and "social arrangements."