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Thursday, August 17, 2006

The FCC denied an appeal!

Two FCC decisions were released yesterday: Providence ( and Academia Discipulos (, which covers 30 appeals.

No surprise, in both cases the FCC sided with the applicants and remanded the funding requests. But wait! One of the 30 appellants in the Academia Discipulos decision was denied! This hasn't happened for months.

The Providence decision doesn't look interesting to me: a vendor put "network monitoring" and monthly reporting in the preamble to its bid, but not in the later section on specific services to be provided.

This stuck out, though: both vendors in the Providence case "maintain that network monitoring and configuration management are not part of their basic maintenance contracts." So don't hire them. Monitoring should be part of any maintenance contract, except under the bizarre rules of the E-Rate. I routinely have to scrub it out of contracts, because every vendor I can think of includes it as part of their standard service. It sounds like Providence and their vendors scrubbed it out, too.

Academia Discipulos deals with competitive bidding violations from Funding Year 2003 and earlier. Apparently USAC applied the bidding requirements from the Ysleta Order, and the FCC said that the standard in the Tennessee Order should be used, since the cases took place before the Ysleta order took effect.

That's a little funky to me. The Ysleta Order denied applications because it said they did not meet competitive bidding requirements. Nowhere in that order does the FCC says it changed the requirements (the ordering clauses at the end make no changes to the regulations). So it seems to me that the requirements in the Ysleta Order have always been the requirements, and that the Ysleta Order merely applied the existing requirements to particular cases (and in doing so, clarified the requirements a bit). In fact, paragraph 72 starts: "We recognize that in certain instances, our rules and past decisions did not expressly address the circumstances presented here. That, however, does not preclude a finding that there has been a violation of our competitive bidding rules." And I think that's been USAC's take, too. Now the FCC is saying that the requirements changed in 2004.

Here's another way to look at it. Ysleta denied applicants in Funding Year 2002, because they violated program rules. The Academia Discipulos decision says that the Yselta standard does not apply to any applications before FY 2004. Huh? That would mean that of all the applications filed before FY 2004, the Ysleta Order applies only to those applications named in that order. I'm not a lawyer, but if I were, I think I'd be contacting IBM (which I think was the vendor in all the cases in the Ysleta Order).

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