SECA and Morgan Freeman

In what I'm calling (with apologies to my high school Latin teachers) a sua sponte a posteriori ex parte tabella maxima, the State E-Rate Coordinators Alliance (SECA) has filed with the FCC a request to fix the problem of Black Holes and COMADs. Don't know what black holes have to do with the E-Rate? I don't know who coined the term, but among E-Rate cognoscenti, a "Black Hole" application is an application that has been languishing for years, neither approved or denied. A lot of them are tied to investigations of an applicant, service provider or consultant. Or so one can surmise, since no one can get any information about the reason for the Black Hole.

Pointless aside: Of course this filing has me thinking about Star Trek, what with Black Holes and COMADs (which remind me of NOMAD). Which I guess makes the Chair of SECA Captain Kirk. And I know who's Spock. I don't know the rest of the SECA gang well enough to decide who gets to be Bones, Scotty, Sulu, Chekhov, Uhura, etc.

The first thing that struck me was that there were so few Black Hole applications. I mean, every time we get together for an E-mpa® meeting, someone has a Black Hole horror story. It looks like only about 150 applications from before 2008 are in a Black Hole. I would have guessed 1,000, based on the number of stories I've heard.

But on to the important part of the document, the proposed solutions. And, of course, my ill-considered opinion of them.

Bill of Rights: Oh, yeah! Any one of the items on the list would vastly improve the program. Every item seems like common sense to anyone who hasn't been involved with the E-Rate, but to those of us in the E-Rate trenches, they're like dreams. Well, except if they actually implemented this bill of rights, E-Rate consultants would be much less necessary, and I still have to get my kids through college.

Increased Transparency: Less revolutionary, but also nice. Basically just giving people a clue on how they got into a Black Hole, and letting the public know how many applications are sitting in a Black Hole.

“Under Review” Decisions: Who knew that USAC could issue an FCDL with some of the FRNs marked "Under Review"? So why don't they? Not that I'm surprised; they are also reluctant to use the "As Yet Unfunded" option for FRNs that are waiting to see if they'll clear the denial threshold. My guess? The metrics on their contract don't count an application as complete until all FRNs are decided, so why bother with a partial decision?

Code 9 Procedures: I'm not so sure about this one. SECA is trying to prevent abuse of the ability to make anonymous accusations. I don't think it's that big a problem. I may be wrong, but I have the impression that while every Code 9 accusation is investigated, applications don't sit in a Black Hole unless there is some evidence of a problem. And I don't like impinging on the ability of people to call in anonymously.

Recovery of Funds Deadline: I like the idea of saying that after 5 years, no funds will be recovered. But I don't like their suggestion of forcing USAC to wrap up audits quickly. Because what USAC is doing is considering whether violations found by auditors merit recovery, and I want them to take their sweet time about it. And really, is recovery 7 years after the fact any worse that 5 years after the fact?

Finality of USAC Funding Commitment Decisions Letters: Hear, hear! Why do FCDLs have to count as funding commitments if the decision is going to be reviewed again at invoicing and maybe again later in an audit? If there was intentional deception, then OK, go get them. But if an applicant was forthright in their application, and USAC mistakenly approved funding improperly, don't punish the applicant. Plus, I love the word estoppel. (But if they start estopping things, will a controversy arise of "eStop" vs. "E-Stop"?)

Gradations of Financial COMAD Penalties: Sounds like a good idea, but it's going to add to USAC's workload, and really, isn't an applicant going to appeal any COMAD to the FCC? So let the FCC decide if they want to be in the business of cost-allocating COMADs.

I think I'll have to file an ex post facto ego te amo in support of SECA's Bill of Rights.

Now, hidden forms

You've heard me bellyache about the secret rules and the hidden rules, but a new appeal has got me bothered about hidden forms.

Seems an applicant got two bids for its WAN, and selected the service provider with the higher bid. That's OK under E-Rate rules, as long as price was the primary factor. And the district says that price was the primary factor, and has supplied some evidence to support that position. But because they could not produce "RFP Response Evaluation Worksheets," they were found to have violated program rules.

So now we have a hidden form. Applicants have to retain a bid evaluation matrix. Nowhere do the rules say you have to make one. Certainly, the USAC Web pages on bid evaluation imply that you should have a written evaluation, but nowhere does it say that one must be created, and nowhere does it say what form it must take.

I've made this point before when talking about tech plans:

If USAC wants applicants to document something in a particular way, they should create a form for it. I hate forms as much as the next person, but they do clearly delineate what information must be recorded. Creating a Form 666 (or whatever) to record bid evaluations wouldn't add new rules or complexity to the process, it would reveal the rules and complexity that already exist, but are obscured by fuzzy language like "construct an evaluation."

I don't mind if USAC and the FCC use vague language to describe vague requirements, but if there is a specific program requirement, it should be described by specific language. Don't say "construct an evaluation" if you mean "build a bid evaluation matrix like the example we've provided, being sure to show the weight given to each criterion."

As it stands now, most applicants don't realize that they have to create written evaluation documents that clearly show that price was the primary factor. Because the rules don't say that they have to create such a document.

Let's bring the ridiculous number of required documents out in the open by making them all forms. If we could stack the vast quantity of rules and piles of required documentation in front of the Commissioners, maybe they would rethink the process that has been created to transfer $3,000 (the median FRN amount) to governmental and non-profit organizations.

Blog Hygiene

No E-Rate content in this post.

I just wanted to let you know that I've made a housekeeping change in this blog. When I'm reading something on the Web and come to a hyperlink, I almost always want the link to open in a new tab on my browser, so I can keep reading and look at the hyperlink later. And I write my blog assuming that readers are doing the same thing.

So I've finally figured out how to make my blog automatically open a new tab when you click on a link. Don't be alarmed when you click on a link and a new tab opens up. Click here to see how links work now. As an added bonus, when you click you'll get to see the Web site of the greatest E-Rate consulting firm on Earth. (And I don't want to hear any whining from other E-Rate consulting firms that think they're the greatest; my Mom says On-Tech is the best, and you'd better not disagree with my Mom.)

I wish I could make the new tab open behind the current window, to avoid interrupting the flow of my splendid prose, but that is beyond my poor HTML skills.

I've read that people hate sites that pop open new tabs, but that's just too bad. I like it, and since this blog exists to amuse me, new tabs it is.

Is Joe Barton Megamind?

Just yesterday as I drove along listening to the jibber-jabber about our government hurtling towards default, and what it would mean, I breathed a sigh of relief that the Universal Service Fund is not part of the budget. So I think even a complete government shutdown wouldn't stop the E-Rate. At least not for a while.

I've described before the plot to kill the E-Rate by bringing it into the US budget, then bleeding it dry. That plan died when the Republicans lost control of the government. Well, they're back. At first it looked like they would join the movement to expand the E-Rate, which I'm afraid may be the E-Rate's undoing. But I was feeling quite safe.

Then this morning I read this: House Majority Leader Eric Cantor has floated the idea of taking $1 billion from the USF to help pay down the debt. But wait, other Republicans are riding to the USF's defense, led by Rep. Joe Barton. Could you hear my jaw dropping? I've been dissing Joe "Bleed It Dry" Barton ever since he said that he wanted to kill the E-Rate by underfunding it. Now Barton is saying, "...while I think the fund needs to be reduced, I am against using the money collected for anything other than its intended purpose."

It's like the plot of Megamind come to life. Suddenly, the villain is a hero. Well, except for that "the fund needs to be reduced" part.

Equivalent <> identical

Today's shake of the head goes to Edline's comments on the ESL. Here's what got my head moving:

" Given the finding of functional equivalence in the Sixth Report and Order, e-mail service and web hosting service should not be separated in different sections of the ESL but should, instead, be contained in the same section, in one “function” category. Such a result will, to the greatest extent possible, ensure that disparate treatment of these functionally equivalent services does not occur now, or in the future."

Um, well, what the FCC said in paragraph 101 of the Sixth Report & Order was:

"We recognize that the transfer of messages across a school’s hosted website is functionally equivalent to other services that facilitate the ability to communicate such as e-mail, text messaging, voice mail, and paging."

So if Web hosting should be in the same "function" category as e-mail, shouldn't text messaging, voice mail and paging be lumped in there, too? Oh wait, they're all telecom services. So I guess "functionally equivalent" doesn't mean "functionally identical." And it doesn't mean that they should all be treated identically.

And looking more closely at the FCC's order, it doesn't say that Web hosting is functionally equivalent to e-mail. It says that activity like blogging is functionally equivalent. So only part of Web hosting is functionally equivalent.

I can understand why a Web hosting company would want to get lumped in with e-mail: many in the E-Rate community have come out in favor of dumping Web hosting from eligibility, and lashing themselves to a more popular service like e-mail is a good defense. And Edline was using the functionally equivalent argument to try to further stretch the definition of Web hosting.

FCC rocks

Man, I love it when lawyers submit appeals to the FCC.

When school and library employees post, they're basically saying, "We're really sorry, but in your great wisdom and mercy, please grant us our humble request. For the children."

But when the lawyers write appeals, they say things like, "An Order not based on substantial evidence and states mere conjecture … without substantial evidence is arbitrary, capricious, not in accordance with law, unwarranted by the facts. an abuse of discretion and is reversible." (Here's the whole appeal.)

I guess they don't teach the "get more flies with honey" philosophy in law school.

And in a nod to Dave Barry, I will note that "Abuse of Discretion" would be a great name for a rock band.

Hidden rule

So I was reading through the instructions for the Form 471 (looking in vain for definitions of the terms "district" and "consortium") when I came across this nugget:

"In addition, if you are a consortium that includes non-governmental entities ineligible for universal service support, you should note that you cannot negotiate pre-discount prices below tariff rates for interstate services from incumbent local telephone companies."

Huh?

OK, first off, I'm always whining about the secret rules, but this is a prime example of a hidden rule. I mean, you have a rule about when you're allowed to negotiate rates , and the best place to put it is the instructions for the Form 471 in the section on how to fill out Item 5a (where you say if you're a school, library, district or consortium)? Let's assume the ridiculous, and say that applicants could read all the rules. Even so, the Form 471 is completed after rates are negotiated, so it would be reasonable for applicants to read the instructions for that form after rates are negotiated.

Second, the rule is weird. So if my consortium has non-governmental entities eligible for support, or governmental entities not eligible for support, I'm still OK to negotiate a better rate, but if one of the entities is both non-governmental and not eligible for E-Rate, then I have to take the tariff rate? And if I go with a competitive local exchange carrier instead of an incumbent, I can negotiate a lower rate? For a rule to be so odd, there must be some hairy FCC politics behind it.