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Thursday, July 20, 2006

Remand, waiver, waiver, remand

Is the FCC ever going to deny an appeal again? Yesterday the FCC gave out two more applicant-friendly decisions.

In the first, an applicant didn't get around to sending the information it had promised to the SLD, but the FCC waived its rules and gave them another 15 days. One day soon, we'll see an appeal from an applicant who misses the deadline on one of these 15-day extensions. What will the FCC do then?

The second appeal was the Henkel Order. Seems some funding was approved for the Little Rock school district to get a video distribution system. Then when the vendor sent in an invoice, the SLD took another look at the system and contradicted its own funding approval, and would not pay for a few components of the system. I can't say I like this SLD practice of using the invoice process to double-check their earlier decisions. From the applicant and service provider perspective, it feels like the SLD is going back on its commitment and taking money away from them. It's not really, of course; the SLD is just adjusting its decision based on new information and withholding funding which would likely be COMADed anyway. But there must be a better way. Like having the FCC approve funding commitments, and have them iron-clad, so if an applicant honestly supplies all the requested information, if a mistake is made, the applicant and service provider don't have to pay for it.

Anyway, back to the Henkel Order. I found three things in the order interesting. First, the FCC gave some information on the eligibility of components of video distribution systems, some of which could be extrapolated to training and end-user components for any internal connections system. No earth-shattering revelations, though.

The second thing I found interesting was that the FCC treated the Eligible Services List for 2003-2004 (the funding year in this case) as if it were part of the program rules, quoting from it as the basis for determining eligibility. Until the Third Report and Order, which came into effect starting with the 05-06 ESL, the ESL was a list compiled by the SLD based on what had been approved and denied in the past. It was a good guideline, but I always treated it as an advisory document. Not until the Third Report and Order did the FCC make it a "safe haven" that applicants could count on to be correct.

It was nice to see the FCC treat an older ESL as authoritative. It's comforting to think that applicants can file appeals based on an old ESL, and the FCC will give it some weight.

Not that applicants need to supply much of a basis for an appeal any more; just ask nicely and the FCC will remand your application. Of course, the SLD then gets the unpleasant job of saying no another time if, like in the Henkel case, the application included end-user applications, which the FCC all but said were ineligible. But the case was remanded to the SLD to do the dirty work of denying that funding.

The third interesting thing is paragraph 12, which seems to say that training of end users is eligible as long as it happens near the time of installation and doesn't include programs of instruction or professional development. This is a reversal: in the past, end-user training was not eligible, only training for systems administrators. In the case of a new phone system, for example, you could get funding for training to teach a couple of people how to add extensions, clear voicemail boxes, etc., but you couldn't train end users how to transfer a call or check their voicemail. This decision seems to make that end-user training OK.

I'm all for training, but it creates an interesting situation. The cost of the end-user software of the video distribution system in this case is apparently not eligible, but training people to use that software is eligible.

Once again, I'm glad I don't work at the SLD.

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