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Tuesday, June 11, 2013

Burying the lead

Well, that's one way to cut down on the number of appeals.  Buried in the last paragraph of a minor appeal decision, the FCC has shortened the timeframe for filing appeals.  Well, not technically "appeals," but everyone still calls them appeals.  I'll dive into an ill-informed attempt to explain what's going on.

But first, a rant.  I complained long ago that it's impossible to learn the rules for this program.  And even if you do know the rules, you'd better read every obscure appeal decision, because you never know when a rule change will be buried in one.  This rule change wasn't even in a paragraph that started, "It is further ordered...."  Only OCD kept me reading this appeal to the end.

[The following text has been corrected after I was contacted by a colleague who actually knows what he's talking about.]  OK, now on to the explanation.  If you ask most people who know something about the program, "How long after a denial do I have to file an appeal?"  You'll get the answer, "60 days."  And that's sort of correct.  But people who spend way too much on this program would respond to the deadline question with a question of their own: "What do you mean by appeal?"  Because this program generates a lot of three kinds of requests for relief, at three different levels of the bureaucracy, and most people call them all "appeals."  I'm going to describe them below, based on my understanding, since I couldn't find any actual definition of any of these terms.
  1. The first is an Appeal to USAC.  You write to USAC explaining why your funding request shouldn't have been denied. The FCC clarified in 2004 that you can introduce new information on appeal to clarify ambiguity, but not to contradict earlier information.  The Second Report & Order says you have 60 days to file this appeal.  You can skip this step if you want, and appeal straight to the FCC.  [Note from the future: the E-Rate Modernization Order changed this; now you have to appeal to USAC before you can appeal to the FCC.]
  2. Next comes a "Request for Review" filed with the Wireline Competition Bureau (WCB). A lot of people call this an "appeal," and even the Second Report & Order seems to call this an "initial appeal to the FCC."  The Second Report & Order says you have 60 days to file this appeal.  This is when either:
    1. you get an FCDL or COMAD or whatever, and you decide to give USAC the breeze and go straight to the FCC asking that the decision be overturned, or
    2. you appeal to USAC, and USAC tells you to pound sand, and you want the FCC to overturn that denial.
  3. Denied again?  If you have new information or arguments, try a "Petition for Reconsideration" with the WCB.  Don't have new information/arguments?  Skip to #4, Application for Review.  
  4. Not happy with your treatment by the WCB?  Take it to the full Commission with an Application for Review.  This is the deadline that just got changed from 60 days to 30 days.
  5. If you can come up with more new information or arguments, you can file a "Petition for Reconsideration" with the full Commission.
Confused yet?  Let me see if I can put it in a table full of useless historical information to make it really confusing.

Appeal type When you use it Who you appeal to Deadline pre-2001 Deadline 2001-2007 Deadline 2007-present Future deadline
Appeal When USAC tells you something unpleasant USAC
30 days 60 days 60 days 60 days
Request for Review After your initial appeal fails (or if you don't want to appeal to USAC) WCB30 days 60 days 60 days 60 days
Petition for Reconsideration After your Request for Review fails, and you have new information WCB 30 days 60 days 30 days 30 days
Application for Review After your Petition for Reconsideration (or your Request for Review) fails, and you have no new information Full Commission 30 days 60 days ? 30 days
Petition for Reconsideration After your Application for Review (or WCB Petition for Reconsideration) fails, and you have new information Full Commission 30 days 30 days 30 days 30 days

So it's just that one little change that's in bold.  It doesn't merit a Seventh Report & Order, but it also shouldn't be paragraph 8 of a minor procedural appeal decision.

And here comes rant number two.  How about the FCC not cut into the time we have to file an appeal until it sets an actual deadline for resolving appeals?  The rules say the FCC must decide appeals within 90 days, but the only one who could enforce that rule is the FCC, and they don't have enough time to respond to appeals, much less punish themselves for not meeting their own deadline.  Recently, Commissioner Pai suggested a solution: triple the time the FCC can take to make decisions.  By itself, a bad solution; why would the FCC enforce a 9-month deadline any better than they enforce a 90-day deadline?  I mean, Commissioner Pai points out that the FCC was sitting on a couple of appeals for over 100 months until Congress pried them loose.

Here's my solution: since appeals are automatically denied if an applicant misses a deadline to file an appeal, appeals should be automatically approved if the FCC misses the deadline to decide an appeal. In exceptional cases, the FCC can give itself an extension, as long as it explains, for each appeal, why it needs an extension.

It's actually a work-saver for the FCC.  And think of the incentive system it sets up for the workers at the FCC.  Let's say you work at the FCC, and an appeal lands on your desk.  What can you do to give yourself the least amount of work?  Let the appeal sit for 90 days; poof! appeal granted.  What would create the most work for you?  Filing repeated 90-day extensions for yourself.  Under my system, we create a powerful incentive for people at the FCC to approve appeals, and if they're going to deny, to do it ASAP.

Maybe someone could slip that rule change into the last paragraph of the next boring appeal decision.

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