An RFP by any other name

A cornucopia of appeal decisions (27 by my quick count) were released yesterday. And there are enough waives to keep any surfer happy; one decision waived the rules for 78 appeals. In most cases, it looks like the FCC blew the dust off some appeals that had been sitting on the shelf since the early aughts and applied post-Bishop Perry rules to them.

Only one decision seemed to me to break new ground: the Approach Learning decision. And it's not just because I wrote one of the appeals involved. In fact, it was cited as precedent in another of the 27 decisions, so that makes it precedent-setting.

The decision grants 12 appeals, and only one of them is a waiver. So the decision says that in the other 11 cases, the applicants had not violated any rules, and USAC was mistaken in denying them.

It's a decision about a very narrow issue: the checkboxes on the Form 470 where applicants indicate whether or not they have an RFP. Up until this decision, if USAC conducted a Selective Review (or audit or Extended Outreach Site Visit or whatever), and decided that an applicant had an RFP, but didn't check the box saying so, they would deny any FRNs associated with that RFP.

I argued (as apparently did others) that the document we gave to service providers was not an RFP by any definition in state or federal law, that it was really just a restatement of what was in the 470, and that service providers did not need to see the RFP to bid. The FCC accepted those arguments.

As far as I can tell, the FCC is saying: "Check whatever box you want, as long as the bidding process is fair."

Alas, the FCC did not provide a definition of "RFP," which I had requested in my appeal. Actually, way back when those checkboxes were being added to the 470 (2002?), at the train-the-trainer workshop I warned USAC not to use the term "RFP," because it has a very specific legal definition which varies from state to state. If only people would just do what I say, this program would be so much better. On the other hand, my suggestions on simplifying the application process would dry up the need for E-Rate consultants, so I shouldn't complain. At least not until my kids are through college.

I wonder if there is any definition of "RFP" in the 700 pages of secret PIA procedures that the FCC approves every year....