I'm intending to give a more fulsome review of the new C2 Order, but today I'll single out one thing that seemed wrong: "the Commission has previously explained that the Children’s Internet Protection Act prohibits recipients from obtaining discounts under the universal service support mechanism for the purchase or acquisition of technology protection measures necessary for compliance with the Children’s Internet Protection Act." Wait, what?
So I went back to the FCC's 2001 CIPA Order, and sure enough: "CIPA clearly prohibits recipients from obtaining discounts under the universal service support mechanism for the purchase or acquisition of technology protection measures necessary for CIPA compliance."
The FCC reached that conclusion based on § 1721(g) of the Act that created this mess, which says: "Notwithstanding any other provision of
law, funds available under section 3134 or part A of title VI of
the Elementary and Secondary Education Act of 1965, or under
section 231 of the Library Services and Technology Act, may be
used for the purchase or acquisition of technology protection
measures that are necessary to meet the requirements of this title
and the amendments made by this title. No other sources of funds
for the purchase or acquisition of such measures are authorized by
this title, or the amendments made by this title."
OK, I see that CIPA does not authorize the use of E-Rate funds for filtering. But I don't think "not authorized" means the same thing as "prohibited." It seems to me that Congress intended to ensure that applicants could use IDEA and LSTA funds for filtering, by overruling any provision that might have prohibited it ("notwithstanding") and to ensure that no one thought CIPA required other funding programs to change in order to allow funding of filters.
At one point, the FCC seemed to have some ambivalence on the subject. The NPRM for the 2009 ESL wondered "whether [§ 1721(g)] explicitly prohibits E-rate program funding from being used for filtering software or whether the statute can be interpreted so that the Commission is not precluded from funding filtering software through the E-rate program." (paragraphs 14-15) EdLiNC gave the most complete response, looking at legislative history and all. Unfortunately, they came out against filtering. Would EdLiNC reach a different conclusion now that we no longer hit the program cap? (Back in 2008, any time a new service was included in the ESL, it meant the funding ran out earlier, and fewer applicants got Priority Two funding.)
So I disagree with the FCC. CIPA does not "prohibit" the use of federal funds for filtering. The law expressly allows the use of IDEA and LSTA funds (overruling any existing rules to the contrary), and makes no statement on whether other federal funds can be used.
I think filtering should be considered like any other service when it comes to E-Rate eligibility. Which means it comes down to: are filters necessary to deliver broadband to classrooms and public areas of libraries? My answer: "yes." Or more precisely: "It's necessary if the applicant decides it is." Almost all schools filter, because they know that the Internet has lots of content that is not conducive to education. Lots of (most?) libraries, on the other hand, don't filter adult access, because they don't want to be in the position of censoring access. (Unfiltered libraries can't get E-Rate funding for Internet access and Category 2, of course.) I'd be interested to know what percentage of libraries allow young children to have unfiltered Internet access.
The other test I often think of is: "Do organizations which do not get E-Rate funding use the service?" The answer is yes. Well, at least it is here at On-Tech. I make sure all our Internet access is filtered, just so we don't stumble on something unsavory. It also protects us from malicious sites.
Let's add filtering to the ESL.
