We have the dates, but not the rules

At last, the filing window has been announced.  I updated my table to reflect the new dates.

FY	ESL release	Window announced	Days to announce	Window open	60 days?	Window close	Window days
2005	10/14/2004	11/5/2004	22	12/14/2004	61	2/17/2005	65
2006	11/22/2005	11/23/2005	1	12/6/2005	14	2/16/2006	72
2007	10/19/2006	10/20/2006	1	11/14/2006	26	2/7/2007	85
2008	10/19/2007	10/28/2007	9	11/7/2007	19	2/7/2008	92
2009	11/21/2008	11/24/2008	3	12/2/2008	11	2/12/2009	72
2010	12/2/2009	12/3/2009	1	12/3/2009	1	2/11/2010	70
2011	12/6/2010	12/10/2010	4	1/11/2011	36	3/24/2011	72
2012	9/28/2011	11/22/2011	55	1/9/2012	103	3/20/2012	71
2013	9/27/2012	11/13/2012	47	12/12/2012	76	3/14/2013	92
2014	10/22/2013	11/20/2013	29	1/9/2014	79	3/26/2014	77
2015	10/28/2014	12/19/2014	52	1/14/2015	75	3/26/2015	71

What jumps out at me?  Nothing really.  A few mildly interesting things:

1. This is the latest that the window has been announced at least since 2005.  Not way later than other years, though, and USAC had a good excuse, with the overhaul of the 471.
2. The same window close date as last year.  I like it.  Imagine if they made it the same every year....
3. The latest window open date since 2005, which probably means the latest start date ever (I'm too lazy to check).
4. Only 23 days between the announcement of the window dates and the opening of the window.  Not bad, but it just feels like there should be at least 29 days between the announcement and the window opening, so it would be possible to file a Form 470 after the announcement and still have time to file a 471 on the first day of the window.

So nothing to complain about on this timing, really.  Now if we just had the Second Report and Order and Order on Reconsideration, so we could know what the rules are.

Where oh where has my E-Rate 2.1 gone?

Where's the dang Second Report and Order and Order on Reconsideration (FCC 14-189), a.k.a. E-Rate Modernization Order Part 2 or, as most applicants will call it, the Manna from Heaven Order?  It was approved on December 11th, but the only information we have so far is a press release and a recording of the meeting where it was approved.  I was going to be all responsible and read the Order before commenting, but I can't wait any longer.

The big news, of course, is the $1.5 billion dollar increase in the cap.  So now instead of  $2.4-billion-a-year program, it's a $3.9-billion-a-year program.  That is unquestionably good news, but we've been expecting that since November.  The big questions left for me:

1. Is the cap raised for 2015-2016, or do we have to wait for 2016-2017?
2. What about the $1-billion-a-year-for-the-next-two-years bump that the Chairman promised?  Will that be added on top of the $3.9 billion cap?  That would mean $4.9 billion for the next two years.

I'm sure we'll know the answer to question #1 when the Order and Order comes out.  I just hope the Order and Order also makes clear the fate of the $2 billion that the Chairman found.

But I'm really curious to see what the Order and Order has to say about other changes.  According to the press release, the Commission approved the following changes:

1. Large up front construction costs don't have to be amortized, and applicants can pay up-front construction costs over multiple years.
2. Dark fiber and lit fiber will be treated the same. 
3. Schools and libraries can self-provision fiber.
4. Providing an incentive for state support of last-mile broadband facilities through a match from E-rate of up to 10% of the cost of construction, with special consideration for Tribal schools and libraries
5. Carriers that receive subsidies from the High Cost program have to offer high-speed broadband to schools and libraries at rates reasonably comparable to similar services in urban areas.
6. $150-in-5 is no longer a 2-year pilot; it's a 5-year pilot.

My reactions:

1. Buy that WAN!  The contract might say "lease," but if you're paying the cost of building the network in year 1, then paying a small maintenance fee, it looks like a purchase to me.
2. Go over to the Dark side!  If you're leasing fiber, dark almost always makes more sense.  In the past, you couldn't get funding for the buildout of dark fiber, so it only made sense if there was some unused dark fiber on nearby poles, but now you can pay someone to build a dark fiber network to suit your needs.  And you know what?  This actually simplifies the program.
3. Rollout your own!  This is going to be a good choice for a lot of applicants, especially combined with #1 above.  I'll be very interested to see if the Order gives any thought to existing self-provisioned networks.  Will pole attachment fees on existing applicant-owned fiber be eligible?  What about maintenance fees?
4. What?  Does that mean if an 80% applicant builds a fiber network, and the state opts to kick in 10% of the cost, the E-Rate will kick in another 10%, and the applicant gets a free WAN?  Based on Commissioner Pai's comments, it sounds like it.  Oh, crap!  Look for 80% applicants to self-provision fiber rings, whacking the E-Rate for big bucks to cover the cost of installation and have the non-discounted 10% covered by state and E-Rate funding.  Even 70% schools can spend millions, get 90% of it covered, and then spread the 10% cost over several years.  The staff comments at the end of the meeting make it clear that only applicants wanting to self-provision also have to consider fiber leases, which should restrain the gold rush.
5. Yeah, yeah, just like they have to give applicants the Lowest Corresponding Price.  I'll believe it when I see it.
6. This makes sense.  I had been advising 90% clients that if they didn't get any C2 funding for the next 2 years, unless the FCC took action, they'd be back to sky's-the-limit 2-in-5 funding in year 3.  I never thought it was likely to happen, but I had to advise them of the possibility, and it was a small incentive for them to wait.  Now that perverse incentive is gone. 

So instead of calling it the Second Report and Order and Order on Reconsideration, maybe we should call it the Cap-Raising Dark Fiber Order.

How did the telecom carriers let this happen?  Think about what's happened since July.  Voice is being phased out.  Mobile data got chucked.  Now digital transmission is going to transition to dark fiber (leased or self-provisioned).  So the people paying into the fund are being squeezed out of payments from the fund.

O'Rielly mentioned that the definition of rural will change.  I'm guessing that's a change to the rules surrounding Urban Clusters.  The original E-Rate Modernization Order said only buildings located in Urbanized Areas would be considered "Urban," which would have moved a lot of formerly Urban applicants to Rural.  But in an Erratum, they added Urban Clusters with a population of at least 2,500.  That would have moved a lot of formerly Rural applicants to Urban.  Commenters asked to have only really large Urban Clusters be considered Urban, and it looks like they won.

Anyway, it all looks like good news for applicants.  But I want to read the Order before I decide whether it's really a good thing.

I'll reserve my applause

Well, I think we finally know where Chairman Wheeler found that extra $2 billion.  In a letter to USAC on reserve funding, the FCC changed the rules for how much USAC should hold in reserve for: 1) FRNs not yet approved, 2) invoices not yet paid, and 3) appeals not yet decided.

I don't know what the old rules were, but the new rules are refreshingly simple: hold enough in reserve to cover not-yet-approved applications for the current funding year and the previous two years.  Don't hold anything more for uninvoiced FRNs or FRNs under appeal.

That, combined with the new tighter rules on invoice deadline extensions, will allow USAC to cut the size of their reserve funds.  Apparently the Chairman believes it will free up $2 billion over the next 2 years.  Well, it actually only has to free up maybe $400 million per year, since the normal rollover is apparently included in the $1-billion-a-year, and that's been running $600 million or so every year.

You know I have to complain.  I have four complaints:

1. The fund will be more highly leveraged.  Not a problem unless the program loses its ADA exemption.  And that would never happen, right?  I mean, we only had a complete shutdown of new commitments that one time like 10 years ago; since then we've gotten temporary extensions every year or two.  And the current extension runs through Dec. 31, 2015, so Republicans in Congress will have a whole year to cool down after the FCC this month ignored their objections and approved the President's plan to fund a new education initiative by increasing the USF contribution factor, circumventing the need to get Congress' approval.  Surely they won't still be feeling vengeful a whole year from now....
2. In 2 years, rollovers will be much smaller.  The funds that will be made available in the next 2 years are largely funds that would have become available in later years once invoice deadline extensions ran out and decisions were made on appeals.  So the $2 billion is mostly just future rollbacks clawed back into the present.
3. You want to cut the reserve for unpaid invoices?  Stop treating the invoice payment process like another opportunity to review FRNs.  If USAC said the services were OK a year and a half ago, don't let them change their minds after the bills have been paid.  Even better, on Sept. 30 every year, send out notices to applicants of any FRNs that have not been invoiced.
4. You want to cut the reserve for undecided appeals?  Decide the appeals.  The FCC has gotten much better about deciding appeals that come in, but there is a huge backlog still sitting waiting for decisions.  Just implement my "any appeal not decided in 90 days or the appeal is automatically granted" suggestion.

But at least we got to see the rules.