Home AdvocacyPolicyWashington Notes2004 Aug

• Funding Update: House Appropriations Committee cuts education technology programs, including reducing funding for the Education Technology block grant by $91.8 million. In response, ISTE is calling on its members to contact their members of Congress to advocate against the cuts and support full funding for this vital program. ISTE encourages its members to use the Ed Tech Action Network (ETAN) to contact their members, and participate in the September 9th Advocacy Day on Capitol Hill.
• E-Rate Update: Oversight and Investigations Subcommittee of the House Energy and Commerce Committee held its second in a series of hearings on E-Rate waste, fraud and abuse. The FCC issued an order on E-Rate rule changes that focused on establishing processes for recovery of erroneously disbursed funds and for resolving audit findings. In a separate order, the Commission held that USAC and the FCC can collect erroneously disbursed funds from the party responsible for the rule or statutory violation, even if that party is a school or a library.
• Induce Act Update: Senate Judiciary Committee considers Induce Act legislation that would create civil liability for anyone who “intentionally induces” a consumer to infringe upon copyrighted material.
• Accessibility Update: Department of Education endorses the National Instructional Materials Accessibility Standard (NIMAS), a voluntary standardized format for electronic files such as textbooks and other classroom materials. NIMAS will facilitate the conversion of traditional textbooks into accessible formats for students with a wide range of print disabilities.

Funding Update
House Appropriations Committee Cuts Education Technology Funding from the Labor, Health and Human Services and Education Appropriations Bill

Although Congress was unable to pass a FY05 budget resolution, the House and Senate have moved on to consider the thirteen appropriations bills. The House and Senate are using similar funding levels for discretionary funding. The Senate Appropriations Committee has allocated $814 billion for discretionary funding to cover the thirteen appropriations bills, whereas the House Appropriations Committee has allocated $821.4 billion for FY05. The Senate shifted approximately $7 billion allocated for the Defense appropriations bill to emergency spending (which is not counted within discretionary funding), thereby matching the total spending level of the House.

Last month, the House Appropriations Committee passed its version of the FY05 Labor, Health and Human Services and Education appropriations bill, which significantly decreased education technology funding by over $100 million from FY04 levels. Most importantly, the Committee reduced the Enhancing Education Through Technology (EETT) program, Title II Part D of No Child Left Behind, by $91.8 million. Overall, the bill increases funding for education programs by $2.1 billion, with the bulk of the increases going toward $1 billion increases for Title I and IDEA. Additionally, the bill eliminates the Community Technology Centers program, which received $9.9 million last year, and the Star Schools program, which received $20.3 million last year. On a positive note, the Committee provided $30 million for the Statewide Data Systems program, which will provide grants to states to develop longitudinal data systems to comply with No Child Left Behind. The full House is expected to consider the bill in early September.

The Senate Appropriations Committee is not expected to consider its version of the Labor, HHS and Education appropriations bill until early September. It is unclear whether the Senate will follow the House’s lead in cutting the EETT program or fund the program at its FY04 level. There is a strong likelihood that the CTC and Star Schools program will receive funding because of strong Senate champions, although it is unclear whether their funding will match FY04 levels.

Congressional appropriators have already signaled that it is increasingly unlikely Congress will be able to pass all thirteen appropriations bills. The most likely scenario is that all unpassed appropriations bills will be wrapped into an Omnibus Appropriations bill that will be considered after the election or early next year.

Here are funding numbers for some of the programs in the House’s FY05 Appropriations bill:

In response to these massive proposed cuts, ISTE has launched several grassroots initiatives aimed at restoring funding to education technology programs. ISTE encourages its members to use the Ed Tech Action Network to write letters to their members of Congress urging them to protect these vital programs, and invites members to participate in an Advocacy Day on September 9th in Washington, DC. The ETAN and the Advocacy Day are two powerful ways that you can advocate for full funding for education technology programs and hopefully bring about positive changes for your school or district. Please contact Jee Hang Lee at 1.202.478.6131 or jhlee@lharris.com if you are interested in participating in the Advocacy Day.

E-Rate Update
Second Hearing on Waste, Fraud and Abuse Held by Congress and FCC Adopts Key Orders

On July 22nd the Oversight and Investigations Subcommittee of the House Energy and Commerce Committee held its second in a series of hearings on E-Rate waste, fraud, and abuse. The subject of the hearing was a multi-million dollar attempt to defraud the San Francisco Unified School District (SFUSD) through the E-Rate program that was perpetrated by a pair of consultants and a subsidiary of the technology company NEC. The hearing provided gripping details about the workings and extent of the fraudulent scheme and the repeated failures of the program integrity procedures of the Universal Service Administrative Company (USAC) and the Schools and Libraries Division (SLD), who administer the E-Rate, to prevent it.

The cumulative result of this hearing, and a previous hearing on the funding debacle in Puerto Rico, was an apparent strengthening of resolve from Congress and the FCC to make changes to the program. In his remarks at the hearing, House Energy and Commerce Committee Chairman Joe Barton (R-TX) stated his intention to develop an E-Rate reform package for next year that would make “structural changes” to the program. FCC Wireless Competition Bureau Chief Bill Maher indicated that his bureau was actively reviewing proposals to lower the top tier discount rate for internal connections as one way of preventing situations like those in San Francisco and Atlanta.

Two weeks after the hearing, on August 4, 2004, the FCC approved unanimously a number of major changes to the E-Rate program aimed at improving the Bureau’s ability to prevent, detect, and prosecute fraud. While the specifics of the changes to the E-Rate were not published fully, the Commissioner’s statements and a press release indicate that the Commission has made the following changes:

• Establishing a framework regarding what amounts USAC and the FCC can recover when funds have been disbursed in violation of the program’s rules. This section likely will deal with the procedures for recovering such funds and whether USAC or the Commission will collect even de minimis amounts.
• Requiring the FCC and USAC to conduct audits and investigations relating to the E-Rate within five years of receipt of supported services. This section appears to be a response to demands from numerous groups and companies that the Commission institute a statute of limitations on recovery of erroneously disbursed funds because of concerns that the Commission and USAC could reach back all the way to the beginning of the program to collect such funds, even if those funds had long since been spent. However, this section seems to only limit audits and investigations to five years from the date of receipt of services but not necessarily place a time limit on actual recovery.
• Bars applicants and service providers from receiving additional E-Rate funds if they have failed to repay erroneously disbursed funds.
• Requires applicants and providers to retain E-Rate compliance records for a minimum of five years.
• Places responsibility for reviewing audit concerns in the hands of the Wireline Telecommunications Bureau and allows for full Commission review of any Bureau decision on audit findings. The Commission must complete work on an appeal within six months.

One issue not addressed but still on the table, according to FCC Chairman Powell’s statement, is a proposal to lower the top-level discount for internal connections from 90% to possibly as low as 70%. An order on this and other issues is expected in the next few months.

During the discussion of this order at the FCC’s open meeting, many of the Commissioners expressed concerns that the Commission must strike a balance between protecting the E-Rate program from fraud and keeping it accessible to legitimate applicants in instituting any new rules. The Commissioners made clear that any new regulations put into the E-Rate application process should not make the program unnecessarily complex.

In a related action, the FCC also issued an order that changes the rules on recovery of erroneously disbursed funds. Prior to this order, the Commission permitted such funds to be recovered only from service providers (which, in turn, could collect them from applicants) because providers actually receive the funds directly from the universal service fund. After numerous objections from service providers to this system, the Commission ruled on July 30 that USAC and the FCC can direct recovery actions “to the party or parties that committed the rule or statutory violation in question,” even if those parties are schools and libraries. The FCC reasoned that applicants are oftentimes “in the best position to ensure compliance” with E-Rate rules because they fill out and file the E-Rate’s forms, conduct the competitive bidding process, and receive the discounts.

Induce Act Update
Senate Judiciary Pushes Induce Act

Despite Congress’ notoriously sluggish summer pace, there appears to be a genuine push for action this year on the Induce Act. As a precursor to moving this bill through the Senate, the Senate Judiciary Committee held a hearing on July 22 during which it heard testimony from a number of parties expressing concerns about its potential consequences. The proposed legislation, which was introduced in the Senate last month with bipartisan support from Senate leaders Bill Frist (R-TN) and Tom Daschle (D-SD), would create civil liability for anyone who “intentionally induces” consumers to download copyrighted material, such as music, movies, literature and other material. The central aim of the bill’s authors is to deter copyright infringement on peer-to-peer networks by creating secondary liability for the creators or purveyors of such technology or devices. In the July 22 hearing, though, many groups voiced their opposition to the bill, claiming that it is overly broad in its scope and does not sufficiently protect multiuse technologies or devices that can be used for non-infringing purposes. Despite these concerns, Senate Judiciary Chairman Orrin Hatch (R-UT) and Ranking Member Pat Leahy (D-VT) have both endorsed the bill.

Of specific concern to educational entities operating networks is the conspicuous absence of “safe harbor” provisions to protect them from liability for infringing acts that occur on their networks without their knowledge, such as those delineated in the Digital Millennium Copyright Act (DMCA). Senator Hatch has signaled that the safe harbor provisions in DMCA would remain in force, though the lack of specific language in the bill leaves open the possibility that, under a broad interpretation, schools could be held liable when copyright infringement takes place on their network. To address this concern, ISTE sent a letter last month to Chairman Hatch requesting that safe harbor language be inserted into the bill before it reaches the Senate floor this fall. In addition, other organizations such as the Business Software Alliance (BSA) and Institute of Electrical and Electronics Engineers (IEEE) have voiced concerns about the overly broad scope of the bill. Chairman Hatch urged these groups to submit legislative language to the Committee reflecting these suggested changes, though he remained firm on his commitment to bring the bill to the Senate floor after the August recess.

Accessibility Update
Department of Education Endorses National File Format

At a recent event commemorating the 14th anniversary of the Americans with Disabilities Act, Department of Education Deputy Secretary Gene Hickok announced that the Department has officially endorsed the National Instructional Materials Accessibility Standard (NIMAS), a voluntary standardized format for electronic files such as textbooks and other classroom materials. This voluntary electronic standard will facilitate the conversion of traditional textbooks into accessible formats for students with disabilities, such as Braille textbook editions, on-screen text displays and text-to-speech capabilities. Although there will be significant initial costs to publishers in adopting the national voluntary standard, the Department anticipates that NIMAS will help to streamline the process for publishers who were previously required to produce multiple formats to satisfy accessibility requirements and often could not release materials in time for the new school year.

The national file format, which requires that publishers use the XML (Extensible Markup Language) format as a supplement to each textbook, was developed by the National Center for Accessing the General Curriculum, and was recommended last fall by a 40-member federally funded panel consisting of industry and disability community stakeholders. Both the Senate and the House of Representatives have included the national file format provision in their versions of the reauthorization of the Individuals with Disabilities Education Act (IDEA), which would require that states adopt the NIMAS standard as a condition of receiving IDEA funds. IDEA reauthorization remains deadlocked in Congress, however, as it continues to await a joint conference committee to iron out differences in the House and Senate versions of the bill.

With no movement on IDEA likely before the November election, the Department’s endorsement of NIMAS will allow publishers to begin the transition to XML production in anticipation of Congressional action next year. The endorsement will also allow some states that were awaiting the Department’s decision – including Arizona, Kentucky, New Mexico and New York – to officially enact legislation in their state requiring compliance with the national file format. Finally, the announcement allows the Department to launch two outreach centers designed to help states implement the new voluntary standard.

Join the Ed Tech Action Network

If educational technology issues are important to you, then please join the ISTE/CoSN Ed Tech Action Network at http://www.EdTechActionNetwork.org/. This online advocacy tool will allow you to easily send important messages to your Representative and Senators, learn more about timely ed tech issues, and receive tips for communicating with elected officials. Your voice is critical for impacting the decisions of policy-makers.

Glossary

Conference Committee – A committee composed of temporary panelists from the House and Senate that meet to reconcile differences between the House and Senate versions of a bill.

Fair use - A somewhat nebulous concept that is often misused by consumer groups, private organizations, and lawmakers alike. The definition, as set forth in Section 107 of the 1976 Copyright Act, states that fair use is the doctrine that allows an individual who has violated copyright to justify that use under "recognized public purposes." Such public purposes may include, "criticism, comment, news reporting, teacher (including multiple copies for classroom uses), scholarship, or research."

Individuals with Disabilities Education Act (IDEA) - The 1997 reauthorzation of IDEA guarantees equal access to public education for people with disabilities. IDEA also includes a grant program to states and LEAs aimed at facilitating the education of children with disabilities by providing increased access to high quality programs and services.

Pay-as-you-go (PAYGO) - A Budget procedure that ensures that all legislation affecting direct spending or receipts is budget neutral in each fiscal year. Thus, any spending increases must be offset by funding cuts in other areas or tax increases.

Universal Design - "The term 'universal design' means a concept or philosophy for designing and delivering products and services that are usable by people with the widest possible range of functional capabilities, which include products and services that are directly usable (without requiring assistive technologies) and products and services that are made usable with assistive technologies." (Source: H.R. 4278, Improving Access to Assistive Technology for Individuals with Disabilities Act of 2004, Section 3)