MEMORANDUM

TO: Judy Harkins

Gregg Vanderheiden

RERC on Telecommunications Access
Karen Peltz Strauss,

KPS Consulting
Re: Summary of FCC Proceeding on E-Rate Certification

In the Matter of Schools and Libraries Universal Service

Support Mechanism, CC Docket No. 02-6

Comments due April 5, 2002

Reply Comments due May 6, 2002

DATE: March 5, 2002

The following is a summary of a recent Federal Communications Commission (FCC or Commission) Notice of Proposed Rulemaking under Section 254 of the Telecommunications Act, which established the universal service support mechanism for schools and libraries, also known as the "e-rate" program.

Over the past four years, the e-rate program has enabled billions of dollars to flow to eligible elementary and secondary schools, libraries, and consortia in the form of eligible telecommunications, Internet access, and internal connection services. Concerns have been raised by some individuals in the disability community, most notably by individuals at the National Council on Disability, that discounts have gone to schools which have not been in compliance with federal mandates prohibiting discrimination on the basis of disability.

Universal Service Schools and Libraries Support Mechanism

Under the Telecommunications Act, an eligible school, library or consortium can make a "bona fide request for services" by filing FCC Form 470 with the Universal Service Administrative Company (USAC or Administrator). This form is then posted on the Administrator's website for a period of four weeks. After that time, the applicant can make a commitment with one or more service providers for the provision of services. Upon signing a contract for such services, the applicant must then submit FCC Form 471 to the Schools and Libraries Division (SLD) of USAC, requesting support for universal service discounts for those services.[1] Form 471 notifies USAC that the services that have been ordered through service providers, informs USAC as to the providers that the applicant will be using, and provides an estimate of the amount of money that will be needed to cover the discounts for the eligible services.

After Form 471 is submitted, SLD issues a funding commitment decision letter. This letter notifies the applicant about the discounts to which it is entitled. The school or library which has been approved then submits FCC Form 486 to SLD. Form 486 initiates the process for SLD to receive invoices from the service provider.[2]

Current Disability Nondiscrimination Notice

At present, FCC Form 471contains the following notice:

The Americans with Disabilities Act (ADA), the Individuals with Disabilities Education Act, and the Rehabilitation Act may impose obligations on entities to make the services purchased with these discounts accessible to and usable by people with disabilities.

Although this notice informs schools and libraries about their nondiscrimination obligations, it does not actually require compliance with these statutory mandates as a condition of receiving universal service discounts.

Proposed Disability Nondiscrimination Certification

The FCC's NPRM is seeking comment on whether it should include a certification of compliance with federal nondiscrimination statutes by applicants for discounts under the schools and libraries support mechanisms. Such a certification would, presumably, condition the receipt of universal service discounts on compliance with these disability statutes. The Commission has asked for comment on the following:

· Proposed language of a nondiscrimination (disability) certification;

· The timing for a certification in the application process;

· Whether the certification should be on Form 471 or 486;

· The need for changes in the Commission's rules to ensure that applicants that are not in compliance with the certification no longer receive discounts;

· Whether and how USAC and the Commission would verify and enforce compliance; and

· How a certification of this kind would promote the Commission's three goals of "improving program operation, ensuring a fair and equitable distribution of benefits, and preventing waste, fraud, and abuse."

CIPA Certification

In commenting on the FCC's current proposal, it is helpful to have information about another FCC rule requiring certification by schools and libraries wishing to receive universal service funds. Specifically, under the Children's Internet Protection Act (CIPA), schools and libraries with computers that have Internet access must certify that they have in place particular Internet safety policies and technology protection measures in order to receive discounted Internet access, Internet services, and internal connection services. In addition, such school and library authorities must certify that they have adopted and implemented an Internet safety policy addressing a number of other matters, including access by minors to inappropriate matter on the Internet and World Wide Web and the security of minors when using electronic mail, chat rooms, and other forms of direct electronic communications.

In order to implement CIPA, in April of this year, the FCC added a new certification to Form 486.[3] In order to receive discounts for Internet access and internal connections services under the universal service program, fund recipients must now certify that they have a policy of Internet safety, including measures to block or filter Internet access to certain visual depictions. The Commission chose to use Form 486 rather than Form 471, because the statutory language contained in CIPA states that schools and libraries may not receive services at discount rates under the universal services program without these certifications. The Commission explained that Form 471 is completed by applicants for discounted services to provide information on the types of services for which discounts are sought. Those applicants are not assured of receiving discounted services, and, thus, may never become subject to the CIPA requirements. The FCC concluded that use of Form 486 for the CIPA certification is more efficient because it is submitted only after SLD has issued its decision on the application. Thus, schools or libraries that submit Form 486 already know that they will receive discounts; this is not the case when they submit Form 471.

In the CIPA proceeding, the Commission further explained that because individual schools or libraries may or may not have the authority to make legally binding commitments, CIPA certifications may be made by either a school, school board, local education agency, or other authority with responsibility for administration of the school, a library, library board, or other authority with responsibility for administration of the library.

The FCC's rules under CIPA prohibit schools and libraries from receiving services at discounted rates at any time during which they are out of compliance with the CIPA certification. In addition, schools and libraries for which entities knowingly fail to submit this certification are not eligible for discount services until the appropriate entity submits such certification. As of October 28, 2001, entities have been required to certify that they have CIPA policies and technology measures in place, or that they are undertaking actions to put them in place for the following funding year. The program "funding year" for the schools and libraries universal service support mechanism begins each July 1, and ends on June 30 of the following year.

The CIPA certification reads as follows:

I certify that, as of the date of the start of discounted services (check one):

(1) The recipient(s) of service represented in the Funding Request Number(s) on this Form 486 has (have) complied with the requirements of the Children's Internet Protection Act, as codified at 47 U.S.C. § 254(h) and (l).

(2) Pursuant to the Children's Internet Protection Act, as codified at 47 U.S.C. § 254(h) and (l), the recipient(s) of service represented in the Funding Request Number(s) on this Form 486 is (are) undertaking such actions, including any necessary procurement procedures, to comply with the requirements of CIPA for the next funding year, but has (have) not completed all requirements of CIPA for this funding year.

(3) The Children's Internet Protection Act, as codified at 47 U.S.C. § 254(h) and (l), does not apply because the recipient(s) of service represented in the Funding Request Number(s) on this Form 486 is (are) receiving discount services only for telecommunications services.

Parallels between the CIPA certification and a disability nondiscrimination certification may be helpful in the decision-making process on this issue.

This summary was prepared as part of the Telecommunication Access RERC, a joint project of Gallaudet University and the Trace Center, University of Wisconsin-Madison under funding from the National Institute on Disability and Rehabilitation Research (NIDRR) of the US Dept of Education Grant H133E990006. The opinions offered herein are those of the author and do not necessarily represent those of the Telecommunication Access RERC, the Universities or funding agencies.

[1] 47 C.F.R. § 54.504(b), (c); Schools and Libraries Universal Service, Services Ordered and Certification Form, OMB 3060-0806 (October 2000) (FCC Form 471).

[2] Schools and Libraries Universal Service, Receipt of Service Confirmation Form, OMB 3060-0853 (April 2000) (Form 486).

[3] Schools and Libraries Universal Service, Receipt of Service Confirmation Form, OMB 3060-0853 (April 2000) (FCC Form 486)

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