Home AdvocacyPolicyWashington Notes2004 Sep

• Funding Update: Senate Appropriations Committee restores funding for education technology programs, including level funding of the Education Technology block grant at $691.8 million. The full House passed its version of the Labor, HHS, and Education Appropriations bill, which cuts education technology funding by more than $90 million.
• ETAN Update: ISTE hosted Advocacy Days on September 9th and 10th which were attended by over fifty education technology supporters and featured a press conference with Sen. Jeff Bingaman (D-NM).
• E-Rate Update: Oversight and Investigations Subcommittee of the House Energy and Commerce Committee held the third in its series of hearings on E-Rate waste, fraud and abuse. In addition, the FCC issued an order requiring the Universal Service Administrative Company (USAC) to convert to the new Government GAAP accounting standard, causing USAC to freeze sending out all funding commitment decision letters.
• IDEA Update: Congress moves to conference on the reauthorization of the Individuals with Disabilities Education Act (IDEA). Senate and House have appointed conferees, but will not consider the bill until after the election to de-politicize the issue.
• Induce Act Update: Growing opposition to Induce Act on behalf of stakeholder groups makes passage in the Senate unlikely during the 108th Congress.
• ITFS Update: FCC order, published last month, contains provisions that may threaten educational ownership of licenses in the long term.

• CALEA Update: FCC issues NPRM on proposed new rules to CALEA, which may negatively impact education and library networks.

Funding Update
Senate Committee Passes FY05 Labor, HHS and Education Appropriations bill

In September, the Senate Appropriations Committee completed action on its version of the FY05 Labor, HHS and Education Appropriations bill. Overall, the bill provides $142.3 billion for the various programs within the bill, including $58.8 billion for education programs, a $3.2 billion increase. Conversely, the House’s FY05 Labor, HHS and Education Appropriations bill, also approved in September, provided $57.7 billion, $1.1 billion less than the Senate bill. Funding increases for education in the Senate bill was mainly allocated for Title I and IDEA, each of which received a $1.1 billion increase.

On the technology front, the Senate Appropriations Committee rejected the House's $91.8 million cut to the Enhancing Education Through Technology (EETT) program and provided level funding at $691.8 million. Additionally, the Senate Committee provided funding for the smaller education technology programs zeroed-out in the House version, including $24 million for the Star Schools program, a $3.6 million increase over last year, and $11 million for the Community Technology Centers program, a $1.1 million increase. The Committee also funded the Statewide Data Systems program at $40 million, which will provide grants to states to develop longitudinal data systems to comply with No Child Left Behind. That figure represents $10 million more than the House allocated for the same program. The Preparing Tomorrow’s Teachers to Use Technology program received no funding in either the Senate or House versions of the FY05 spending bills.

With limited floor time available in the next two weeks, it is unlikely that the Senate bill will be approved by the full Senate before Congress’ scheduled October 8th recess. The most likely scenario is that Congress will combine the remaining uncompleted appropriations bills, including the Labor, HHS and Education bill, into an Omnibus Appropriations bill and attempt to pass it sometime after the election and possibly as late as next February. As part of the Omnibus process, the Senate and House Appropriations Conference Committee will have to negotiate the various funding levels of the programs. It is unknown whether the House and Senate will split the difference on the relative EETT funding levels, or whether the House will agree to the Senate funding level for the program.

Because the FY 2005 fiscal year begins October 1 and very few FY05 programs have had their funding approved, Congress is expected to approve a five to six week continuing resolution (CR), which will fund all programs at FY04 funding levels until it either passes an omnibus bill or approves another CR.

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

ETAN Update
Advocates for Education Technology Funding

Earlier this month, members of the Ed Tech Action Network (ETAN) held two very successful advocacy days on Capitol Hill, urging Senators and Representatives to restore the $91 million in Enhancing Education Through Technology (EETT) funds that the House of Representatives had voted to cut for FY05. ETAN representatives from thirteen states—California, Illinois, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Missouri, New York, North Carolina, Oregon, Pennsylvania, and Texas—fanned out to meet with members of Congress and their staff. Specifically, advocates told lawmakers about the important role that education technology plays in helping students and teachers alike increase student achievement and learning, as well as with meeting the requirements of No Child Left Behind Act. As part of this effort, ETAN collaborated with the Software and Information Industry Association to hold a well attended and much reported press conference. During the press conference, two sign-on letters opposing the cuts—one from over 30 high tech companies and the other signed by over 60 state and local education organizations and individual districts—were presented to New Mexico Senator Jeff Bingaman (D-NM).

E-Rate Update
House Hearing Tackles More Allegations of E-Rate Waste, Fraud, Abuse

During a September 22nd hearing in the House Subcommittee on Oversight and Investigations on E-Rate waste, fraud, and abuse, House Energy and Commerce Chairman Joe Barton (R-TX) lambasted the administration of the program and proposed major changes to the program’s structure to reduce the number of waste, fraud and abuse cases. Specifically, Barton proposed changing the E-Rate to a loan program, with special consideration provided to low-income applicants, or funding it through local taxes rather than through the universal service fund. He even suggested that the program be frozen until major changes to the E-Rate could be affected. Although new FCC Wireline Competition Bureau Chief Jeffrey Carlisle and School and Library Division President George McDonald responded that a program suspension would be overreaching, they agreed that vast restructuring of the program is necessary. They both noted that the FCC and Universal Service Administrative Company (USAC), the program’s administrator, have explored several anti-abuse options, including audits, debarment rules for violators, and a revision to the discount matrix.

The September 22nd hearing was the third in a series of hearings targeting the allegations of waste, fraud, and abuse currently wracking the E-Rate program. While the previous hearings focused on abuses in Puerto Rico and San Francisco, Wednesday’s hearing investigated the so-called “two-step procurement process” taken on behalf of companies such as NEC-BNS, VNCI, and IBM. In the IBM case, a federal investigation was launched in May 2002 after USAC received an anonymous whistleblower letter claiming that IBM had abused the procurement process in El Paso and seven other Texas school districts in FY01 and FY02. Christopher Caine, Vice President of Governmental Programs at IBM, testified that IBM lawfully followed the E-Rate rules and that its service prices were based strictly upon the school districts’ technology plans.

In all the cases addressed at the September 22nd hearing, Congressional investigators spread blame for the rule violations to the applicants (including superintendents, technology directors and others), service providers, third-party E-Rate consultants, and government agencies alike. Although the critical tone of the hearing seemed to suggest that the Committee is poised to undertake a major overhaul of the E-Rate program next year, Subcommittee Ranking Member, Rep. Diana DeGette (D-CO) attempted to moderate the tone by questioning the most appropriate way to make these changes. Rep. DeGette mentioned that some suggested reforms, including the proposed adjustment of the discount matrix, may cause more harm than good by targeting those schools and libraries that depend on the highest discount rates to maintain existing connections. Other mechanisms to curb abuse, such as application audits, are already underway and USAC hopes to complete 250 audits of E-Rate applications by the end of this year.

Pending FCC Decision on Accounting Standards Has Major Implications for Flow of Funds

An FCC order requiring the Universal Service Administrative Company (USAC) to convert to a new accounting standard (Government GAAP) has created major logistical problems for the program and has led to the suspension of all Funding Commitment Decision Letters (FCDLs) for the time being. Under the new accounting standard, E-Rate funds can only be committed if USAC has sufficient money in its bank accounts to cover obligations, which interpreters of the new rules believe FCDLs to be. Since E-Rate funds are collected from providers on a quarterly basis, USAC’s bank accounts fluctuate and do not always have on hand the same amount that the organization commits to paying out in the FCDLs.

On August 4, USAC decided to suspend mailing out any FCDLs until it resolves this problem. It is currently negotiating with the FCC on how best to handle this situation and hopes to reach a resolution by October 1.

The possible effects of this ruling are far-reaching. In the short term, if no resolution is reached by the opening of the next application window in November, most applicants will not know how much or what to apply for next year. In the long-term, if the Government GAAP rules remain in place, FCDLs will only be sent out based on how much has been collected, thereby delaying many applications for months. This may deter eligible entities from participating and chill interest in the program. Additionally, the GAAP rules may require USAC to ramp up or ramp down collections at various points in the funding year, thereby causing great fluctuations in phone bills and possibly leading to political controversy.

IDEA Update
Congress Moves to Conference IDEA Bills

After months of inactivity, the House and Senate have announced who will serve on the conference committee to iron-out differences between House and Senate versions of the reauthorization of the Individuals with Disabilities Education Act (IDEA). Although conferees have been announced, the conference committee will not meet until after the elections in order to de-politicize the bill and build consensus to pass it this year. The Senate conference committee group will consist of all the members of the Senate Health, Education, Labor, and Pensions Committee.

Most importantly for education technology, the Senate version of the bill includes a number of provisions designed to improve the development and usage of technology by and for students with disabilities. Under the Senate's new Part B, states would be permitted to use IDEA funds to support the development and use of technology (including universally designed technologies and assistive technology devices and services), to enhance learning and maximize accessibility to the general curriculum. Part D of the Senate bill includes a new finding that support is needed to improve technological resources and integrate technology, including universally designed technologies, into the lives of children; it also allows Professional Development grants to be used for, among other things, encouraging and supporting the training of teachers to effectively integrate technology into the classroom. In addition, Part D of the Senate bill contains a new priority for projects that promote the development and use of universally designed technologies, and assistive technology devices and services. Even the new National Center for Special Education Research established in the Senate bill has a universal design focus, as it is charged with examining and incorporating universal design concepts in the development of standards, assessments, curricula, and instructional methods.

Induce Act Update
Induce Act Faces Opposition from Stakeholder Groups

Despite assurances from Senate Judiciary Committee Chairman Orrin Hatch (R-UT) that the Induce Act, S. 2560, would sail through the Senate this year, mounting opposition from various stakeholder groups suggests that passage during this congressional session is unlikely. The bill, which would create civil liability for anyone who “intentionally induces” consumers to download copyrighted material, was originally introduced in the Commerce Committee with bipartisan support from Senate leaders Bill Frist (R-TN) and Tom Daschle (D-SD). Judiciary Chairman Hatch and Ranking Member Pat Leahy (D-VT) have also been vocal supporters of the bill, and may hold their Committee markup as early as September 30.

Recent opposition to the bill from non-profit educational groups, trade associations, consumers groups and conservative coalitions alike, however, promises to complicate the process and possibly delay the passage of the bill until next session. The American Conservative Union (ACU) joined the ranks of opposing groups last week, and has launched numerous ads that depict the Induce Act as a measure that runs counter to Republican principles. The majority of these groups – partisan and non-partisan alike – say their main concern is that the bill’s language is too broad and may unduly target the creators and distributors of products that may be used for non-infringing purposes. For its part, ISTE wrote a letter last month to Chairman Hatch expressing concerns regarding the lack of “safe harbor” provisions that would exempt schools that operate networks from inducement liability.

While no solid assurances have been made regarding the safe harbor provisions, it is likely that the Committee will incorporate into their latest draft several elements of a draft prepared by the Digital Future Coalition earlier this month, which included such liability exemptions for school networks and ISPs. Given the time constraints on Senate action this year, some critics of the Induce Act fear that the Committee will choose to forgo a floor vote and instead attach the bill’s language to the must-pass FY05 spending bill next year.

ITFS Update
FCC Order May Spell Long-Term Trouble for Educational Licensees

The long-awaited FCC order on the Instructional Television Fixed Service (ITFS) spectrum was finally published last month, and contains a mixed bag for educational entities that had fought to preserve the spectrum for educational use. The general outcome of the order was positive in that it clearly preserves ITFS for education by continuing to permit only education entities to hold ITFS spectrum licenses and adopts the band plan that the education licensees had proposed. Due to the highly technical nature of the order, however, some ambiguity has arisen with regards to the long-term implementation of the band plan, including some difficult requirements regarding the transition to digital.

Specifically, the FCC ruled that proponents of the transition to digital can no longer target individual licensees or local markets, and must transition all the licensees in vast geographic areas called “Major Economic Areas” (MEAs). MEAs do not necessarily follow the state lines and may encompass several large cities at once (Los Angeles and Las Vegas are in the same MEA). It therefore appears to preclude an educational licensee such as a university system or a school district from undertaking its own transition, meaning that they will have to wait until a sizeable – and undoubtedly corporate – entity moves to transition the entire area.

This plan may also put educational ownership of the licenses at risk once again. That is because the FCC order states that MEAs that do not transition to digital by the three-year deadline will be subject to an "alternative process" that will effectively force the transition. The FCC has issued another NPRM asking for comments on what this “alternative process” should look like. It is clear from the NPRM, however, that the FCC favors an approach that will terminate all existing licenses in an untransitioned MEA. In exchange, incumbents will be forced to go to auction with "bidding credits” that are supposedly equal in value to the value of their terminated licenses, and it is expected that many licensees will be unable to buy back their previous spectrum holdings.

In short, while the FCC preserved educational ownership of the ITFS spectrum in the order, it has set up a scheme that may yet wrest ownership out of their control. By creating barriers that make transition within three years more difficult, and then proposing sanctions for failure to transition, it seems increasingly likely that the ITFS will be mostly commercial within five years.

CALEA Update
FCC Releases NPRM on CALEA Implementation for Broadband

The FCC recently issued a NPRM asking for comments on a proposal to extend the Communications Assistance for Law Enforcement Act (CALEA) from traditional telecommunication networks (i.e. standard telephone) to broadband providers. The order has provoked widespread concern from broadband providers and Internet advocates, who believe that the proposal runs contrary to the CALEA statute, and would drive up costs, threaten innovation and reduce privacy on the Internet. Of particular concern to educators, the NPRM extends CALEA obligations to the commercial Internet backbone and appears to go beyond “common carriers” specified in the statute to reach educational networks like Internet II, the Abeline Network, and state education networks that aggregate traffic to these networks.

Adopted by Congress in 1994, CALEA defines the statutory obligation of telecommunications carriers to assist law enforcement in executing electronic surveillance pursuant to court order or other lawful authorization, and requires carriers to design or modify their systems to ensure that lawfully authorized electronic surveillance can be performed.

For example, telecommunication providers have to configure their “equipment, facilities and services in a manner that permits isolation, interceptions and collection of communication call identifying information”. In addition, providers have the obligation to collect and deliver the information to law enforcement. Pursuant to CALEA, there have been multiple proceedings at the FCC to determine acceptable industry standards, cost reimbursements, upgrades, changes in technology, and the like.

In the most recent proceeding, the FBI petitioned the FCC to expand the reach of CALEA to broadband networks, which would include broadband Internet communications, wireless broadband, Voice Over IP (VoIP) services such as Vonage, and “push-to-talk” communication, such as Nextel. Many advocates believe that the language of the NPRM fails to recognize the scale and complexity of the networks that may be affected by CALEA or the complexity and cost of compliance.

A coalition of education and library organizations, including ISTE, is organizing to file comments at the FCC opposing extension of CALEA to educational broadband networks. Comments will be due in early November.

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)