Where oh where has my ESL gone?

What is the FCC doing with the ESL?

[Quick background:
A couple of years back the FCC took the great step of having the Eligible Services List approved by the FCC, so that it could be a safe harbor for applicants. See, if the SLD (or any other part of USAC) tells you that a service is eligible, they're only saying what they think the FCC would say. Now, the FCC says directly what is and is not eligible. The list is still vague or silent in some areas, but it gets better every year. Here's how the process goes:

1. SLD sends draft ESL to the FCC.
2. FCC publishes the list and asks for comments
3. FCC digests those comments and perhaps revises ESL
4. FCC publishes a final list

By FCC rules, the application window can't open until 60 days after the final list is published.
End of background.]

Word has it that the SLD has sent the ESL to the FCC. So what is the FCC doing with it now? Since they're going to be reviewing the list after comments are made, I would think they'd just want to throw it up, let the comments come in, and make their review as comments are coming in and then get the thing posted.

Let's work backwards. Assume a mid-February window closing (which has been the custom recently), and an 80-day window (which was policy until last year). Then the window has to open at the end of November. To meet the 60-day rule, the ESL has to come out at the end of September. Last year the FCC took 89 days to consider all the comments and finalize the ESL, which means that the ESL comment period should end at the beginning of July. Last year commenters only got 10 days to respond, so if the comment period is the same this year, then the proposed ESL should be posted some time around June 20th. What's today's date?

Last year the FCC missed the mark badly. How did they fix it? By shortening the timeframe for applicants. They shortened the application window to 73 days (OK, shaving 7 days was no great hardship). And instead of giving 60 days between publishing the ESL and opening the window, they waived their own rule and gave applicants 14 days. And since it was published the day before Thanksgiving, it really only gave applicants 8 days.

Compressing the timetable for applicants to complete the competitive bidding could help the bad actors and hurts applicants who want to get the most appropriate services at the best price. It gives applicants the sense they're behind the eight-ball, so they're more likely to be taken in by unscrupulous characters, and can't be as diligent in getting the best price or the most cost-effective system.

And this year, the ESL is going to be a big change. The SLD has tried to shorten the list (without removing any information) by overhauling the format. That's good, but it will be a year of adjustment for people used to the old format. Let's hope applicants get more than 8 days to get used to it before the window opens.

Secret rules galore

Anyone who reads the comments I make to the FCC at every NPRM and Eligible Services List comment period about the "internal controls" that the SLD uses in processing applications knows that I hate them. Not only do they cause widespread fear, but they also promote waste, fraud and abuse: if the applicants could see all the rules, they'd know that some of the things they're doing aren't allowed. If they knew the secret "brightlines" that trigger an audit or Selective Review, they would keep their requests reasonable.

Well, I've never gotten a peek at those guidelines, but I did recently learn the size: 700 pages. That's right, seven hundred pages of rules that no one can see.

Here's a real ugly way to think about it: most of the rules in the E-Rate program are secret.

So in addition to following the rules contained in hundreds of pages of information spread all over the USAC and FCC sites, applicants also have to abide by 700 pages of rules that they can't even get a peek at.

I shouldn't complain: some of my clients came to me after they got blindsided by a secret rule, threw up their hands, and hired a consultant. And since I have handled so many applications for so many years, I have been able to discern many of the secret rules. So 700 pages of secret rules is very good for those of us in the consultant business. But 700 pages of secret rules is not good for schools and libraries, and aren't they what the program is all about?

Another blow struck for applicants

The FCC just released a new appeal decision, destined to be called the Richmond County decision, and it is more cause for celebration for applicants. Unlike many recent decisions, this is more than a waiver; the FCC has actually overruled the SLD.

The SLD has created a "two-signature/two-date" rule for contracts, saying that each party must sign and date a contract for it to be valid. Why? Because buried in a list of documents that the FCC requires applicants to keep, they said applicants should keep contracts "signed and dated by both parties." From that line, the SLD deduced that all contracts must be dated by both parties, regardless of state contract law.

Yesterday, the FCC said a contract with two signatures and one date is OK. Huzzah!

What the FCC should have said is that any contract which satisfies the law in the state where it was signed is a valid contract, but one step at a time.

FCC tea leaves

An Erratum to the recent Bishop Perry decision has been released which corrects a reference to the Form 486 in the Introduction to the decision. The reference was a little odd in the first place: the 486 is not mentioned anywhere else in the decision, which deals only with the 470 and 471.

So it's got me thinking: was some FCC staffer working simultaneously on an analogous decision concerning 486es, and made a little cut-and-paste mistake?