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Tuesday, August 14, 2007

Secrecy rules

Another appeal caught my eye today. Basically, an applicant is appealing the retroactive denial of almost a million dollars of funding that was approved and disbursed in 1999.

The appeal leads off with a reasonable request for the records that led to the denial of funding. Since lawyers wrote it, they call it "discovery." And the poor lawyer who wrote the appeal seems to really believe that it is a reasonable request that will be granted once a reasonable person reads it.

Not in the E-Rate program. As the FCC made clear in the Inter-Tel and Harrington-Lueker decisions, PIA review records are secret. That's right, if an applicant is denied for funding, and requests the records used to make that determination, USAC and the FCC will stonewall.

So not only is the 700-page rule book for PIA reviewers secret, but so is the material they collect during their review.

It's an astonishing level of secrecy for a program that involves transfer of funding from one government entity to (almost entirely) other government entities.

I don't buy the arguments that investigatory techniques, like the exact benchmarks that trigger a Selective Review, should be kept secret. Publicize them. Tell applicants: "If you do the following, you will get a Selective Review." "If you spend more than $X.XX per student on a data network, you will get a Cost Effectiveness Review." And so on. Applicants will stop doing those things.

Because by keeping them secret, USAC and the FCC are denying many more funding requests from honest applicants who made an error than from dishonest actors.

What really gets me is that the FCC keeps the information secret by hiding behind regulations created to keep "law enforcement" practices secret, so that criminals wouldn't be able to stay a step ahead of law enforcement. I'll bet you didn't know that when Solix, a for-profit private company sub-contracted by USAC (a non-profit private company), reviews your application, you are actually involved in a law enforcement proceeding. First of all, how can the government outsource law enforcement? And second, why is a routine application for funding considered a law enforcement action?

1 comment:

  1. I went back and checked; the appeal was granted ( without addressing the school's request for discovery.