Home AdvocacyPolicyWashington Notes2004 Nov

• Funding Update: The House and Senate passed the FY05 Omnibus Appropriations bill during a special session on Saturday, November 20. The bill contained an unexpected cut to the Ed Tech Block Grant program of an additional $100 million, bringing total FY05 funding to a mere $500 million. As for the smaller programs, Community Technology Centers (CTC) program received a near $5 million cut, Star Schools was level funded at $21 million, and the State Data program received its first appropriations for $25 million.
• E-Rate Update: Proponents of the E-Rate program secured a 12 month exemption from a provision in the Anti Deficiency Act that had slowed E-Rate funding commitments to a trickle.
• IDEA Update: Congress Passes the Individuals with Disabilities Education Act (IDEA).

• CALEA Update: ISTE Files Comments on CALEA.

Funding Update
FY05 Appropriations Ends with Major Cuts to Education Technology

During a rare Saturday session on November 20, the House and Senate passed the FY05 Omnibus Appropriations bill, which provided over $388 billion for all of the remaining unpassed FY05 spending bills. Although the Department of Education received $59.7 billion, representing a $1.4 billion increase for FY05, education technology programs suffered even worse than had been expected. Although the House had approved $600 million in Enhancing Education Through Technology (E2T2) funds and the Senate had supported $692 million in their separate Labor, HHS and Education spending bills, the final Omnibus legislation contained only $500 million for the program. It appears that the money removed from E2T2 may have gone to sustain the State Grants for Innovative programs (Title V), a $300 million program which faced zero funding at the beginning of the appropriations process but emerged in the final bill with a $200 million appropriation. The final appropriation for E2T2 more than doubles the House’s proposed $92 million cut and represents a nearly 28% cut over last year’s funding levels. Moreover, the final $500 million figure will be reduced by an additional 0.83% cut that Congress imposed on all non-defense and non-homeland security programs funded in this Omnibus Appropriations bill to keep spending within tight spending constraints sought by the White House. As a result, E2T2 will lose nearly $5 million more in funding, leaving the program at a funding level for FY05 of approximately $495 million.

The E2T2 program was not the only program to receive less funding than expected. Title I received approximately $500 million less than the Administration requested, obtaining $12.8 billion in the final bill. The Community Technology Centers program saw its appropriation halved, leaving it with a paltry $4.9 million to continue operations. Star Schools, which faced outright elimination in the President’s FY05 budget and the House’s version of FY05 Appropriations, survived the budget axe but received only level funding—$21 million. The only piece of positive news was that the State Data program received its first appropriations for $25 million. This program will help states develop and pay for data systems to comply with No Child Left Behind.

Here are the funding numbers by program:

• Title I $12.8 billion, $500 increase
• Professional Development $2.94 billion, $10,000 increase
• Education Technology Block Grant $500 million, $192 million decrease
• Education Block Grant $200 million, $96 million decrease
• Star Schools $21 million, level funding
• Community Technology Centers $5 million, $4.9 million decrease
• Ready to Teach $14.4 million, level funding
• Ready to Learn $23.5 million, $636 increase
• State Data Program $25 million (first appropriation ever)

E-Rate Update

After an intensive lobbying effort on and off Capitol Hill, legislation that allows E-Rate funding to begin flowing to applicants at a normal pace passed the House and the Senate before they adjourned for the year and will be signed into law by President Bush. The legislation, pushed by Senators Snowe (R-ME) and Rockefeller (D-WV) exempts for 12 months the E-Rate program and all of universal service from the federal Anti Deficiency Act provision that blocked the Universal Service Administrative Company (USAC) from mailing out E-Rate funding commitment decision letters (FCDLs) without cash on-hand to cover those commitments. Under the Anti-Deficiency Act, the federal government is barred from obligating federal funds if there is inadequate cash on hand to cover those obligations. This bill also includes an exemption for all of universal service out of concern that the projection process, by which telecommunications companies and USAC determine how much funding will be required for the high cost and low income telephone support programs, could also be considered as obligating federal funds without sufficient cash on-hand.

The trouble with E-rate funding began more than one year ago when the FCC ordered the E-Rate to convert to Federal (Government GAAP) accounting standards. While changing over to a new accounting system for E-Rate this past summer, USAC realized: 1) that the E-Rate’s funds could be construed as federal funds, thus bringing the Anti-Deficiency Act into play; 2) that FCDLs might constitute obligations, thus triggering the cash on-hand requirement; and 3) that the fund would likely not have sufficient cash on-hand to cover all Program Year 2004 applications that had been processed and approved and were awaiting the mailing of FCDLs. Consequently, USAC suspended mailing out FCDLs in early August and only resumed mailing FCDLs in November. Without this exemption, though, applications seeking upwards of $400 million in requested support would not have received letters because USAC lacked sufficient funds in its accounts to cover them.

The efforts to institute a legislative fix and thereby allow USAC to issue FCDLs for all approved applications overcame a variety of competing interests. Recognizing an opportunity to free-ride on the universal service legislation, three Senators attached three pieces of unrelated legislation to the E-Rate bill – bills on wireless E-911 service, federal spectrum relocation, and boxing reform – and attempted to pass them as a package. However, various objections on the House side to the boxing bill, championed by Senator John McCain (R-AZ), stalled the package and prevented it from being included in the FY05 Omnibus Appropriations bill. Just before Thanksgiving, the House passed by voice vote a package that included three of the four bills but left out the boxing bill. The Senate only followed suit, just prior to adjourning for the year, after Sen. McCain received assurances that the House would consider his boxing bill next year and Senator Byrd’s (D-WV) concerns about oversight of spectrum relocation funds were addressed.

The E-Rate exemption saga will not end here, though. The ADA exemption is only for 12 months, and a more permanent solution is needed. Without one, Congress and the Administration may face a rerun of this funding disruption crisis at the end of next year. Additionally, USAC and the FCC must figure out how to recoup from telephone companies $550 million in E-Rate funds that they decided not to collect last year without causing major consumer rate increases. Finally, Congress is expected to begin work early next year on rewriting the Telecommunications Act of 1996, which will likely lead to some restructuring of the E-Rate program.

IDEA Update
Congress Passes the Individuals with Disabilities Education Act (IDEA)

Last week, Congress completed action on the reauthorization of the Individuals with Disabilities Education Act (IDEA), H.R. 1350. The bill, which had been stalled in the Conference Committee for months, was passed on Friday by an overwhelming 397-3 vote in the House and by voice vote in the Senate. Perhaps the biggest success for educational groups was the bill’s provision calling for the federal government to meet the 40 percent funding match within a six-year period. The President is expected to sign the bill into law in the next two weeks.

Overall, the bill promotes the use of technology to help educate children with disabilities by infusing language concerning universally designed technology, a concept that seeks to design technology to be accessible right from the start rather than retrofitting existing technology to be accessible. The bill also supports assistive technology devices. Significantly, the bill finds that “support is needed to improve technological resources and integrate technology, including universally designed technologies, into the lives of children with disabilities, parents of children with disabilities, school personnel, and other through curricula, and assistive technologies.”

Under IDEA’s new Part B, entitled Assistance for Education of All Children with Disabilities, states are given the opportunity to use funds to carry out a number of education technology activities. First, states may use funds to better integrate new and existing technologies in the classroom for students with disabilities. Second, states may support the development and use of technology, including universally designed technologies and assistive technology devices, to maximize accessibility to the general curriculum for children with disabilities. Third, states may utilize technology to reduce the amount of paperwork that is generated in individualized education programs.

Additionally, the bill contains a number of provisions that support other efforts to better utilize technology. For example, Section 662 states that funds may be used to prepare personnel in the innovative uses and applications of technology, including universally designed technologies, assistive technology devices, and assistive technology services. In addition, the bill requires the Secretary of Education to award competitive grants under the Technology Development, Demonstration and Utilization program to entities that conduct research and promote the use of innovative and emerging universally designed technologies for children with disabilities. This provision favors those technologies that are accessible to the broadest range of individuals with disabilities and supports the use of Internet-based communications for students with cognitive disabilities in order to maximize academic and functional skills.

CALEA Update
ISTE Files Comments on CALEA

On November 8th, ISTE filed comments regarding the FCC’s Notice of Proposed Rulemaking (NPRM) that sought public input on whether to extend the Communication Assistance for Law Enforcement ACT (CALEA) to broadband Internet services. ISTE filed these comments with a number of education and library associations and with the EDUCAUSE Coalition.

The FCC issued the NPRM at the request of the Department of Justice and the FBI to move CALEA from traditional telecommunication networks (i.e. standard telephone) to broadband Internet and VoIP providers. CALEA was adopted by Congress in 1994, and created a set of statutory obligations for telecommunications carriers to assist law enforcement in executing electronic surveillance. Most importantly, the law requires carriers to design or modify their systems – usually at their own cost – to ensure that lawfully authorized electronic surveillance can be performed. The law imposes additional obligations on carriers to collect and deliver this information to law enforcement. The CALEA statute is specifically aimed at “common carriers” on the switched public telecommunications network. The law excludes all information services, such as Internet access, from coverage. Notwithstanding the current statute, the FCC found that broadband services, including VoIP services, were a “substantial replacement” for the public switched telephone network and were therefore subject to CALEA.

In its comments, the EDUCAUSE coalition asked the FCC to make a clear and specific exemption or “carve out” for educational and library institutions and educational networks. While the FCC allowed that “establishments acquiring broadband Internet access to permit their patrons to access the Internet do not appear to be covered by CALEA,” this statement does not encompass educational institutions such as facilities-based state networks and broadband Internet access providers that serve facilities such as hospitals and local governments in addition to educational institutions. As a result of this omission, many institutions would have to comply with the CALEA provisions barring any clear and specific exemption language from the FCC.

The reply comments to the NPRM are due in early December. The FCC is unlikely to take final action on this issue until late spring. The NPRM can be found here: http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-187A1.doc

Join the Ed Tech Action Network

If educational technology issues are important to you, then please join the ISTE and 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 education technology 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)