Sep 192012
 

Applicants and service providers alike should take note of the following FCC decisions on E-Rate appeals. A must-read!

1. Assumption-All Saints School, et al. (DA 12-1323). Found that, by listing an email address affiliated with the applicants’ service provider (Future Generation) as the preferred method of contact on their Forms 470, applicants violated the Commission’s competitive bidding requirements. Future Generation was the current service provider for each applicant and the ultimate winner in the competitive bidding process. The Commission held that, consistent with past decisions, listing a service provider as the contact person on a Form 470 and allowing that service provider to participate in the competitive bidding process taints the competitive bidding process.

2. Ed Tech Solutions LLC (DA 12-1328). Concluded that Ed Tech’s contracts properly allowed payments to be made in installments after the work was completed. In doing so, the FCC found persuasive that the contracts at issue were entered into before the Commission set time limits on deferred payments for the non-discounted portion of payments for services. Also weighing in Ed Tech’s favor was the fact that all the contracts provided a specific time table for payment (25% upon project completion and 25% every three months until the balance was paid). The FCC went on to find (contrary to USAC’s assertions) that, in and of themselves, the Form 473 certifications do not require service providers to seek payment from USAC at the approximate time it receives reimbursement from the E-Rate applicant. In addition (and also contrary to USAC’s claims), the deferred payment plans at issue did not violate the necessary resources requirement, as the applicants had a reasonable expectation of being able to pay Ed Tech for the non-discounted portion when those funds became due under the contract. Finally, the FCC concluded that neither its rules nor USAC’s procedures required an applicant to pay the service provider the discounted portion during the funding year.

3. Truth or Consequences Municipal Schools et al. (DA 12-1361). Held that applicant violated the competitive bidding requirements by failing to evaluate all bids received. The FCC found decisive that the bid evaluation worksheets were dated more than a month after the relevant contract had been signed.

4. Iowa Department of Education et al. (DA 12-788). Found that, despite an earlier FCC decision approving E-Rate discounts on Iowa Communications Network’s (ICN’s) services on a “prospective basis,” applicants were entitled to discounts in previous funding years. In December 2000, the FCC had determined, on remand from the DC Circuit, that ICN was a “telecommunications carrier” eligible to receive E-Rate discounts on a “prospective basis” (i.e., Funding Years 2001 and later). At issue were pending applications for services provided by ICN in Funding Years 1998, 1999, and 2000. The FCC concluded that the “prospective” language was not intended to preclude retroactive application of the decision, reasoning that (a) the Commission had not considered the fact that applications were pending for prior funding years when it issued its 2000 decision, and, importantly, (b) ICN was a “telecommunications carrier” when the applicants at issue requested E-Rate support.

For more information about these decisions or other E-Rate topics, please contact the Troy Law Group (www.troylawgroup.com).

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