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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
)
In the Matter of )
)
Federal-State Joint Board ) CC Docket No. 96-45
on Universal Service )
)
COMMENTS IN OPPOSITION TO
A STAY OF THE UNIVERSAL SERVICE ORDER PENDING JUDICIAL REVIEW
July 18, 1997
- INTRODUCTION AND SUMMARY
The Education and Library Networks Coalition (hereinafter
"EdLiNC") submits these comments in response to a joint petition
for a stay pending judicial review of the FCC's Universal Service
Order1 ("the Order") filed by
Southwestern Bell Co. and Pacific Bell/Nevada Bell (hereinafter
"Petitioners") on July 3, 1997.
EdLiNC is a coalition of over thirty major national organizations
representing both public and private schools and libraries,
as well as the children and lifelong learners that they serve.2
Its members were strong advocates of the Snowe-Rockefeller-Exon-
Kerrey Amendment ("SREK") to the 1996 Telecommunications Act
("Act") which directed the FCC to establish affordable telecommunications
rates for schools and libraries. EdLiNC was also an active party
to the Universal Service rule making process before the Federal-State
Joint Board and the FCC which resulted in the Report and Order
on Universal Service at issue here.
EdLiNC is vehemently opposed to Petitioners' request for a
stay. As we set out more fully below, a stay of the universal
service order and, in particular, the $2.25 billion program
to provide deeply discounted telecommunications services to
schools and libraries is contrary to the public interest and
will cause irreparable harm to schools, libraries, and the communities
that depend on their services. By contrast, EdLiNC finds Petitioners'
claims of irreparable harm to be without merit.
EdLiNC is highly skeptical of the Petitioners' claims and
believe it unlikely that they will prevail on the merits in
their challenge to the scope of the universal service program
for schools and libraries. Their claims are neither new nor
novel. They received a searching review before the FCC during
an extensive rule making process, which provided five separate
opportunities for formal comment and produced over 55,000 pages
of commentary and thousands of ex parte communications.3
For all of these reasons, EdLiNC asserts that Petitioners are
not entitled to a stay under the four part test established
in Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d
921, 925 (D.C. Cir. 1958) as modified in Washington Metropolitan
Area Transit Comm'n v. Holiday Tours, 559 F.2d 841, 843
(D.C. Cir. 1977).
- A DELAY IN IMPLEMENTING THE SCHOOL AND LIBRARY UNIVERSAL
SERVICE ORDER IS NOT IN THE PUBLIC INTEREST.
EdLiNC strenuously objects to Petitioners' assertion that
a stay would serve the public interest because it will discourage
schools and libraries from unnecessarily expending resources
and making investments that would be wasted if the Universal
Service program were ultimately struck down. Contrary to Petitioners'
assertions, the public interest lies in implementing universal
service in a timely manner, not in planning for its demise.
It is clear from the legislative history of SREK that Congress
believed bringing advanced telecommunications services to schools
and libraries was an urgent national priority. As a principal
sponsor, Senator Olympia Snowe, explained:
Universal service has been a fundamental part of our telecommunication
policy, and rightly continues to be . . . . We extended the
provisions to include schools, [and] libraries . . . because
we think it is in the public interest. It is in our national
interest. . . . If we do not guarantee some affordable access
to telecommunications services in rural schools, [and] libraries,
. . . where are they going to be tomorrow? Where will our Nation
be? It is in our national interest to ensure that these areas
are part of the information superhighway. 141 Cong. Rec.
S7977, S7990 (daily ed. June 8, 1995).
In the same debate, co-sponsor Senator Jay Rockefeller made
clear that the public interest required an immediate response:
"Every 18 months the capacity of computers . . . double[s] .
. . [W]hat we are talking about now is going to be far greater
in the future. Therefore, what we deprive people of now will
hurt much more in the future than we can possibly imagine."
141 Cong. Rec. at S7980. From the record, it is apparent
that SREK was plainly a remedial measure, and that Congress
intended and expected that it be implemented promptly.
As Congress also made clear during its debate on the Act,
SREK was introduced in an effort to narrow the growing gap between
information haves and have nots in this country. Its sponsors
targeted schools and libraries for discounts on telecommunications
services because study after study has indicated that these
core civic institutions are far behind other parts of society
in incorporating advanced technology. As Senator Rockefeller
pointed out in debate:
Most classrooms in America still look the same today as they
did 60 years ago when we wrote the first telecommunications
act. . . . Yet, with the tools of our modern-day office, how
can we possibly expect our children to become productive, informed,
innovative contributors to the economy out there, beyond the
schools, when they learn with a blackboard and they do not have
a computer? It will not work. 141 Cong. Rec. at S7981.
Any substantial delay in implementing SREK will not only cause
the access to technology gap to widen, but will deny yet another
generation of students the ability to acquire critical employment
skills. Senator Rockefeller underscored this when he stated
on the Senate floor, "If our children are to use technology
thoughtfully and appropriately, they must have access to it
in their formative years. . . . [SREK] ensures that our children
will become productive members in a world that is growing more
technological and competitive every single hour." 141 Cong.
Rec. at S7981-82. EdLiNC is gravely concerned that the grant
of a stay would have a profound impact on the lives and prospects
of today's students and all life-long learners.
While Petitioners are correct that no specific deadline was
established in the Act for implementation of Universal Service,
both the legislative history of SREK and other provisions of
the Telecommunications Act emphasize rapid deployment of telecommunications
services.4 In particular, Sec.
706 (b) of the Act specifically requires the Commission to "within
30 months after the date of enactment of this Act, . . . initiate
a notice of inquiry concerning the availability of advanced
telecommunications capability to all Americans (including .
. . schools and classrooms)." Sen. Conf. Rep. No. 104-230,
at 102 (1996) (emphasis added). If the Commission finds that
deployment is not proceeding " in a reasonable and timely fashion,'"
it is mandated "to take immediate action to accelerate deployment."
Id. at 210. The mandate of Sec. 706(b) is entirely inconsistent
with Petitioners' request for a stay of universal service.
See, Sen. Conf. Rep. No. 104-230 at 210 (1996). Furthermore,
the extraordinarily strict deadlines set by Congress for the
rule making on Universal Service evince a clear intent to implement
the program in a timely manner. Both the Federal-State Joint
Universal Service Board and the FCC have exhaustively reviewed
Congress' mandate and found timely implementation of Universal
Service to be in the public interest. Granting a stay would
thwart Congress' intent and undermine the strong public interest
in bringing new information technologies to our nation's schoolchildren.
As Senator Kerrey put it, "if you leave the status quo in place,
these schools are going to get further and further behind. That
really is a given. It is not going to go away." 141 Cong.
Rec. at S7985.
- SCHOOLS AND LIBRARIES AND THE COMMUNITIES THEY SERVE WILL
BE IRREPARABLY HARMED BY A DELAY IN IMPLEMENTATION OF UNIVERSAL
SERVICE.
Petitioners assert that no one will be harmed by a stay. Indeed,
they claim further that a stay may actually benefit schools
and libraries because it will preclude those entities from entering
into long-term contracts for the telecommunications services
that they would be unable to pay for if a court strikes down
the Universal Service discount program. Petitioners even go
so far as to suggest that without a stay, "it will be next to
impossible to 'unring the bell.'" Joint Petition for Stay Pending
Judicial Review at 32, CC Docket No. 96-45, filed July
3, 1997. This assertion entirely misses the point. The bell
rang for schools and libraries long ago when Congress enacted
SREK as part of the Telecommunications Act. Since then, schools
and libraries have expended considerable resources in anticipation
of the SREK program's commencement on January 1, 1998. Any additional
delay in starting this program would irreparably harm those
efforts.
From the grassroots to the highest levels of each state and
the federal government, examples abound of extensive preparation
and significant resource commitments in anticipation of the
SREK program. Much time, money and effort has been expended
to inform schools and libraries about this program and how to
participate in it. Shortly after the FCC's approval of the Order,
a PBS-sponsored and EdLiNC- and US Department of Education-
supported video conference, entitled "Maximizing your E-Rate,"
delivered the latest information on implementation to an estimated
20,000 educators gathered at over 1,100 sites. Immediately after
approval of the Order, EdLiNC and its membership prepared and
distributed at a significant cost over 30,000 copies of a special
report on the Universal Service program. The Department of Education
distributed a similar mailing to an additional 15,000 education
representatives. EdLiNC members have also held meetings nationwide
to explain the program's requirements to school officials and
have been part of a working group with the U.S. Department of
Education that has been regularly meeting to make recommendations
to the FCC on issues pertaining to implementation of the Order.
Throughout this summer, the U.S. Department of Education and
the FCC have been disseminating information on the Order to
schools and libraries across the country.5
Members of EdLiNC and the US Department of Education have also
been involved in efforts at mutual education between the education
and library communities, on the one hand, and the public utilties
commissions on the other.6 EdLiNC
and the Department of Education also have additional, nationwide
efforts that will be taking place this fall as additional information
and materials become available.
Since receiving notice of the SREK program, state departments
of education, schools and libraries at all levels have been
preparing to apply to the program. To satisfy the Order's requirements
for participation in the program, many communities have developed
or updated their technology plans and are undertaking time-consuming
technology inventories. A number of local and state governmental
entities have already made the necessary budgetary commitments
to support additional hardware and training as well as ongoing
telecommunications costs. Finally, to complement the new telecommunications
services that they expect to purchase with the assistance of
the SREK program, a multitude of school districts and libraries
have already purchased hardware and taken steps to integrate
the new technology into the curriculum.
The following are just a few examples of the substantial preparatory
efforts already underway across the country at the state level:
- In Tennessee, the State Department of Education estimates
that it is spending $1 million per month on implementing
plans and services related to the SREK program. The governor
has committed to increasing the amount of time that students
use the Internet from 30 minutes per student per week to 3
hours per student per week. The state Department of Education
has also scheduled three regional meetings to discuss how
to apply to the Universal Service Fund, how to best maximize
the funds, and how to assist the coordinators with drawing
up required technology plans. Every school district's technology
coordinator will attend one of these meetings.
- In West Virginia, the state Department of Education has
already begun spending the $60 million the state legislature
appropriated for implementation of the Universal Service discount
program. From this appropriation, the state DOE has bought
hardware and curriculum software.
- In New Mexico, under the leadership of the New Mexico Council
on Technology, a broadly representative group formed by the
state legislature, the State Department of Education, the
Legislative Education Study Committee, private schools, teacher
unions, state libraries, the Library Association, the Chief
Information Officer in the Governor's Office, school district
representatives, National Laboratories in New Mexico, and
others have organized into a coalition to help implement the
goals of SREK. The State Department of Education has created
a communication plan regarding the Universal Service discount
program, and it has hosted meetings and workshops and initiated
two mass mailings as part of this plan. The Council on Technology
in Education is also working with EdLiNC New Mexico and the
local phone companies to sponsor a statewide work session/conference
about the E-Rate in September. The total budget for the session
is about $350,000.
State education agencies and libraries 7
from across the country report similar expenditures of time
and resources.
In conjunction with these efforts, state Public Utility Commissions
have also moved expeditiously to take action so that the Universal
Service discounts will be available in each state by January
1, 1998. Approximately two dozen state public utility commissions
have adopted the federal discount matrix for intrastate services
or have opened dockets to address the issue. Utah, already making
great strides to prepare for the start of this program, had
its State Division of Public Utilities review and adopt the
Order less than 40 days after the FCC approved it. In Michigan,
where legislative approval was required, the state legislature
recently adopted legislation granting their public service commission
the power to opt into the federal discount matrix. In many states,
schools and libraries have been active participants in those
proceedings and have filed comments or testified in support
of the Universal Service Order.
A stay of the implementation of Universal Service would cause
irreparable harm to the recipients of the telecommunications
discounts and the millions of school children and lifelong learners
who rely on their services. Moreover, most schools and libraries
-- to the extent they now have any telecommunications services
-- would be forced to continue paying steep commercial rates
for those services. A stay of Universal Service would freeze
the status quo and work real harm on schools and libraries that
have anticipated relief from this burden for almost two years.
Additionally, if the program is stayed, the considerable time
and financial resources expended thus far to prepare for implementation
of Universal Service would be lost and may be unrecoverable.
Finally, a delay in implementation would bring a halt to the
implementation schedule established by the FCC and eliminate
any possibility that the program could begin in the foreseeable
future. Prior to beginning this program formally, the FCC must
complete the Order's reconsideration process, authorize a universal
service fund administrator to begin work, put in place application
forms and guidelines, and establish procedures for advertising
bids. A stay would set-back all of these efforts by months if
not years, possibly pushing meaningful implementation of this
program into the next century, and thwarting the plain intent
of Congress. In sum, for Universal Service, implementation delayed
may indeed be implementation denied.
- PETITIONERS' CLAIM OF IRREPARABLE HARM IS WITHOUT MERIT.
Petitioners claim that implementation of the Universal Service
program will result in a loss, inter alia, of competitiveness
and customer goodwill. The heart of their complaint is that
once money is required to be collected from the telecommunications
carriers and distributed to schools and libraries pursuant to
the Universal Service order, Petitioners' obligations as LEC's
will put them at a competitive disadvantage with respect to
other service providers and send their customers fleeing. But
no funds have or will be collected or distributed for Universal
Service until January 1998. Moreover, Petitioners have presented
no evidence that non-telecommunications providers are prepared
to compete in Petitioners' service area to provide telecommunications
services.
Furthermore, Petitioners are not in a unique position with
respect to their prospective obligations under Universal Service.
Yet, no other similarly situated incumbent LEC has sought a
stay of the order or claimed that implementation of universal
service would cause irreparable harm. Certainly, if Petitioners'
fears of declining customer goodwill and substantial customer
defections were well-founded, every other local service provider
would have joined the petition to stay universal service implementation.
As it is, the silence of these LECs speaks volumes about the
merits of Petitioners' claims.
- CONCLUSION
For all of the foregoing reasons, EdLiNC objects to Petitioners'
request for a stay pending judicial review of the FCC's Universal
Service Order. We are convinced that granting a stay would not
be in the public interest, that it would not cause Petitioners
irreparable harm, and that Petitioners are unlikely to be successful
on the merits in federal court. In addition, EdLiNC asserts
that the grant of a stay would do irreparable harm to the state,
regional, local and grassroots implementation efforts already
well underway, and to the children and lifelong learners who
are the intended beneficiaries of the Universal Service program.
July 18, 1997
Appendix A: Members of the Education and
Library Networks Coalition
The Education and Libraries Networks Coalition (EdLiNC) was formed
to represent the viewpoint of schools and libraries in the FCC proceedings
dealing with the implementation of the Telecommunications Act of
1996. The Coalition seeks to expand the use of educational technologies
in schools and libraries by making sure that these entities are
given the affordable rate which is guaranteed to them in Universal
Service Provisions of the Act. In the initial Request for Comments
and Reply Comments filed in CC 96-45, EdLiNC filed as NSBA et al.
All of EdLiNC's comments are available online (
http://www.itc.org/edlinc).
The members of the Coalition are:
Footnotes
- A list of member organizations is attached as Appendix
A.
- Indeed, a primary purpose of the 1996 Telecommunications Act
was to "encourage the rapid deployment of the new telecommunications
technology." H.R.. Rept. No. 104-204, at 47 (1996). Further, the
Joint Explanatory Statement of the Conference Committee stated
that the purpose of this bill was to establish a "national policy
framework designed to accelerate rapidly private sector deployment
of advanced telecommunications and information services to all
Americans." Id. at 43 (emphasis added).
- EdLiNC has submitted comments to the Joint Board and the FCC
during the rule making process which addressed the claims in the
SBC lawsuit related to Universal Service for schools and libraries.
- Indeed, a primary purpose of the 1996 Telecommunications Act
was to "encourage the rapid deployment of the new telecommunications
technology." H.R.. Rept. No. 104-204, at 47 (1996). Further,
the Joint Explanatory Statement of the Conference Committee stated
that the purpose of this bill was to establish a "national policy
framework designed to accelerate rapidly private sector deployment
of advanced telecommunications and information services to
all Americans." Id. at 43 (emphasis added).
- For example, the Department of Education is having representatives
from its Regional Technology Education Consortia (RTECs) come
to Washington for a training session on the implementation of
the Order. These RTEC representatives will be working directly
with schools across the country.
- These efforts include both numerous informal conversations with
Commissioners and staff as well as planned presentations at the
NARUC Summer Meeting in San Francisco on July 21, 1997.
- See, Comments in Opposition to the Petition for Stay
filed by the American Library Association, CC Docket No. 96-45,
filed July 18, 1997.
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