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November, 2005 Contents

• EETT Update: ISTE and ETAN Generate 10,000+ Communications to Congress!
• Appropriations Update: Congress Rejects Extensive Cuts to Education 
• E-Rate Update:  E-Rate Shutdown Averted, Funds Will Flow Through 12/06
• Fair Use Update:  House Debates Copyright, Digital Fair Use

EETT Update

ISTE and ETAN Generate 10,000+ Communications to Congress!

According to Hilary Goldmann, ISTE's Director of Government Affairs, ISTE members and supporters have generated more than 10,000 emails, letters, phone calls and faxes to their Congressional delegations championing the Enhancing Education Through Technology (EETT) program. "These communications came through the Ed Tech Action Network (ETAN)," she says, "which makes it very easy to contact your representatives in support of education technology funding."

ISTE wants to "thank each and every one of you for taking the time to be involved in this vital effort," says Goldmann. "Your voices were heard! The House of Representatives rejected an inadequately funded Labor, HHS and Education Appropriations bill, giving us another chance to make this case for EETT."

Goldmann warns that "We must continue to keep the pressure on Congress! They've rejected a bad bill, but we have little assurance that the alternatives will be a whole lot better."

If you haven't already done so, check-out the ETAN web site at www.edtechactionnetwork.org. Better yet, sign up for ETAN's action alerts and use the website to keep abreast of the latest policy actions and debates as they occur.

Appropriations Update

Congress Rejects Extensive Cuts to Education

In a stunning development, on November 17^th, the full House of Representatives rejected the FY06 Labor, Health and Human Services, and Education Appropriations bill by a 224-209 vote, leaving funding for all education programs in doubt. This vote is a victory for the education technology community because the bill, which represented a compromise between House and Senate negotiators, would have slashed funding for the Enhancing Education Through Technology (EETT) program to $275 million, a 45% cut from last year's level. ISTE opposed passage of this bill because of the deep cuts to EETT.

Before leaving for Thanksgiving recess, Congress approved and the President signed a Continuing Resolution (CR), funding all programs for which no appropriations bills had been signed into law. Under the CR, EETT will be funded at the House approved level of $300 million until December 17^th.

Many Reasons to Reject the Bill

We attribute the defeat of this bill to a number of factors, including its extensive cuts to domestic discretionary programs, such as education and rural health. One major concern for many members was that the bill reduced funding for No Child Left Behind Act (NCLB) programs by more than $780 million from last year's level. In addition, the bill did not provide Congressional earmarks to fund district projects--another sore point for many lawmakers.

Prior to the vote, Senate Labor, HHS and Education Appropriations Subcommittee Chairman Arlen Specter (R-PA) stated that the bill represented some of the toughest choices that he has ever made and even threatened to vote against it if it came to the Senate floor.

Next Steps Uncertain, Worrisome

Congress returns in December, but what will happen to the bill is uncertain. Currently, three different scenarios are being discussed. And none of them assures a restoration of funds or increase for the EETT program.

Senate Majority Leader Bill Frist (R-TN) suggests sending the education appropriations bill back to the Conference Committee for revision. It's possible in this scenario that conference negotiators would add funds to education programs. Sen. Specter has suggested a way to make more funds available--by designating $2.1 billion of the Low Income Home Energy Assistance Program (LIHEAP) as emergency spending, which would free up these funds for other programs. If this played out, it's likely that at least half of the $2.1 billion would go towards restoring Congressional earmarks, leaving only around $1 billion to increase funding for all the programs in a $140 billion bill. Moreover, there's no assurance the House would accept re-designating LIHEAP.      

Another option, supported by House Appropriations Committee Chairman Jerry Lewis (R-CA), is to enact a yearlong CR for all remaining unpassed appropriation measures. However, it's unclear in this event whether current FY05 or the FY06 House and Senate figures would be used. This scenario is a huge uncertainty because it means EETT could be funded as high as $496 million (last year’s figure) or as low as $300 million (the House’s approved level). 

The third scenario is attaching the Labor, HHS and Education measure to the FY06 Defense spending bill and presenting them together as an omnibus bill. This would likely pass, as members of congress would find it difficult to vote against defense funding. However, this option would probably require token--or no-- increases in education funding, with EETT likely to remain at the same level as last week's defeated conference report. 

Regardless of what final spending agreement is reached, final appropriations figures could still be subject to across-the-board cuts (up to 5%) that Congress may approve to offset hurricane relief costs.

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E-Rate Update

E-Rate Shutdown Averted, Funds Will Flow Through 12/06

ISTE was successful in making the case to congress to ensure no immediate disruption in the E-Rate program. On November 16^th, the Senate overwhelmingly approved (94 to 5) the FY06 Commerce Justice Science (CJS) Appropriations bill, which contains language that exempts for another year E-Rate and all of universal service from the Anti-Deficiency Act (ADA).

The House approved the same legislation on November 9^th by a vote of 397 to 19. The President is expected to sign this legislation into law.

"We're very glad ISTE members can continue their planning for next year," says ISTE CEO Don Knezek, "without worrying that E-Rate funds will disappear overnight."

Last year, the E-Rate’s administrator was forced to shut down the program between August and November because it was about to run afoul of key provisions of the ADA.  Under the ADA, the program must have sufficient cash on-hand to cover obligations. In August 2004, when the FCC deemed funding commitment decision letters as obligations under ADA and the program’s administrator realized that it did not have sufficient cash in its accounts to cover those obligations (because E-Rate fees are collected on a quarterly basis), the program’s administrator stopped mailing funding commitment letters to applicants. As a result of this shutdown, thousands of applicants did not receive notice of E-Rate support for months, delaying projects and chilling interest in continuing to participate in the program.

The stalemate was resolved in December 2004 with the enactment of a one-year exemption to the ADA for E-Rate and all other universal service programs. Last week's CJS Appropriations bill extends the exemption to December 31, 2006.

Although Congress has passed a temporary exemption, we continue efforts to achieve a permanent ADA exemption. Senate bill 241, sponsored by Sen. Olympia Snowe (R-ME) and Sen. John Rockefeller (D-WV), has attracted 44 co-sponsors including Sen. Ted Stevens (R-AK), the Chairman of the Commerce Committee. The House companion legislation to S. 241, H.R. 2533, sponsored by Rep. Barbara Cubin (R-WY) and Rep. Charles Gonzalez (D-TX), has 102 co-sponsors.

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Fair Use Update

House Debates Copyright, Digital Fair Use

During a November 16^th hearing on digital fair use, the House Subcommittee on Commerce, Trade, and Consumer Protection, led by Chairman Cliff Stearns (R-FL), heard testimony on legislation (H.R. 1201) that would allow the circumvention of technological controls on digital copyrighted material for fair use purposes.   H.R. 1201 was introduced in March by Reps. Rick Boucher (D-VA) and John Doolittle (R-CA) and is supported by House Energy and Commerce Committee Chairman Joe Barton (R-TX).

Two supporters of the legislation, American University Law Professor Peter Jaszi and Prue Adler of the Library Copyright Alliance, testified that this legislation was critical to educators. Adler emphasized fair use as “critically important in ensuring legitimate access to copyrighted works” in our libraries. Jaszi called H.R. 1201 “well calculated” to mediate “between the interests of copyright owners and copyright consumers,” adding that fair use is necessary for classroom instruction. James DeLong of the Progress and Freedom Foundation and Frederic Hirsch of the Enforcement, Entertainment Software Association testified in opposition to the bill. According to Delong, “fair use and free use are not the same thing.” He added that consumers were better off paying for a product than holding out for "free on the basis of some abstract concept of ‘fair’.” 

Subcommittee members fell on both sides of the issue. In her opening statement, Rep. Marsha Blackburn (R-TN) said allowing fair use is allowing “theft” of copyrighted materials. Chairman Barton responded by emphasizing the differences between lawful use by consumers and educators and illegal use by pirates. Rep. Blackburn questioned the need for the legislation, asking witnesses if any educators have ever been sued over the use of copyrighted materials in the classroom. Professor Jaszi responded “no.” In his statement, Rep. Stearns said fair use is open to broad interpretation, adding that, “While I would like to explore the issues H.R. 1201 seeks to remedy, I think the cleaner solution lies in technology, not legislation.”

Neither further hearings nor a mark-up are currently scheduled for the bill.

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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)

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 Compiled and edited by Leslie Harris & Associates for ISTE.