Eleven years after the FCC issued the National Broadband Plan and ten years after the FCC issued a Pilot Program to test E-rate funding beyond school walls, the stars are finally beginning to align. On March 11, 2021, President Biden signed the $1.9 trillion American Rescue Plan Act of 2021 (“ARPA”) appropriating a significant and historic amount of funding for broadband. ARPA created the Emergency Connectivity Fund to fund Remote Learning for our nation’s school children and library patrons as a result of the Covid-19 national pandemic. More specifically, the Emergency Connectivity Fund (“ECF or ECF Public Notice”) to provide $7.171 billion in additional E-rate funding appropriated from the U.S. Treasury and not the Universal Fund to be administered through the E-rate Program. The FCC has until May 10, 2021 to issue an Order on the rules and regulations.
Federal E-rate Funding for Remote Learning and the Homework Gap
Connecting the constellations is now underway to close the Homework Gap through the ARPA Emergency Connectivity Fund. Ahead of the March 11, 2021 legislative appropriation, in early February 2021, the FCC began to address the E-rate Remote Learning and the Homework Gap by issuing the Remote Learning Public Notice. Over 250 comments were filed in that proceeding, the majority of which favored additional funding through the E-rate Program to fund remote learning beyond the campus. Just five days later, on the heals of the creation of the ECF, on March 16, 2021, the FCC issued the ECF Public Notice seeking further comments. The Commission has until May 10, 2021 to issue an Order outlining the rules and regulations governing the ECF.
In the ECF Public Notice the FCC suggests several key proposals, including (1) allowing retroactive funding to January 27, 2020, by simply allowing schools and libraries to make certifications that they have complied with state, local, and Tribal procurement rules, while any new funding must comply with some form of competitive bidding requirements; (2) excluding new construction, network builds, and dark fiber from the traditional Category One funding eligibility, and (3) allowing only school districts to apply for reimbursements. Further, the ECF Public Notice is seeking comments on a myriad of important issues, such as on (1) whether there should be performance measures and goals and broadband adoption goals, (2) whether there should be streamlined competitive bidding rules, (3) whether CIPA filtering requirements apply to ARPA funding (E-rate has CIPA requirements, but does not fund CIPA filtering), (4) how to account for the breakage, storage, and disposition of equipment, and (5) how to align remote learning funding wherever the child learns with the requirement that it primarily serves an education purpose.
For certain, this amount of new funding for a new program is a tall Order to create and fulfill in such a short time-period ,and a huge expression of gratitude is due the legislators, Commission and its staff, and USAC’s leadership and staff for working through these initiatives. Acting Chairwoman Rosenworcel is to be commended for her leadership. Thankfully, the 250 plus comments and reply comments filed in the Remote Learning Public Notice, along with lessons learned from the 2011-12 FCC E-rate Pilot on E-rate Funding Beyond School Walls and the more recent GAO Report recommending E-rate funding be used to close the Homework Gap will all be helpful resources, in addition to the new comments to be filed. After the FCC issues the ECF Order, the administrative responsibility will fall to the Universal Service Administrative Company. In addition, to administering the traditional USF Programs, USAC has been ladened with the new FCC Broadband Mapping, RDOF, and EBB Programs over the past six months. It is clear that key E-rate stakeholders applaud these intitiaves and stand ready to assist.
It is too soon to know what the ECF comments will teach us. Hhopefully some of the comments will highlight the potential complexity of placing too much emphasis on WiFi hotspots as a solution, especially given this past year’s experience of equipment being lost, sold, bartered, not used, or not returned to or accounted for by the school district. And while the Commission seems to be leaning toward the exclusion of certain Category One funding, hopefully, a certain amount of the funding will also be set aside to allow for network buildout to the underserved and unserved areas expeditiously. Afterall, these are the students and library patrons most in need.
Finally, while this is pandemic funding, accountability must be balanced with expediency and waste, fraud, and abuse. The ECF Act requires funding to be retroactive to January 27, 2020. However, many school districts received free gifts from service providers under the E-rate waiver of the free gift rule, charitable gifts from organizations, and other federal Covid 19 funding support. Simply accepting certifications from these school districts and libraries without an exact accounting of the funding could lead to a trail of waste, fraud, or abuse not to mention a potential setting of a double standard of the rules for prospective applicants, who may be required to adhere to a different set of competitive bidding rules. The Commission will will need to promulgate clear rules to ensure fairness to all beneficiaries and consistent and uniform rules and guidance for beneficiaries and auditors to ensure against waste, fraud, and abuse.
Comments on the ECF are due April 5, 2021 and Reply Comments are due April 23, 2021. It is expected that the filing window for the ECF will follow shortly thereafter and remain open for at least 30 days.
Up Next: It is time to seriously begin to consider the much-needed E-rate funding for Cybersecurity. Before the passing of $7.17B ARPA on March 11, 2021 for Remote Learning, many commenters called upon the FCC to use rollover funding in the E-rate Program. It would be good to allocate that funding to Cybersecurity. We should expect to see a Public Notice issue on CoSN’s Petition for a Declaratory Ruling and Rulemaking to Use E-rate Funding for K-12 Cybersecurity.