ISTE -- October Memo

ISTE DC

From the Washington, D.C.
Office of Leslie Harris
& Associates

Appropriations Update

Congress to Return for Lame Duck Session

This week, Congress passed and the President signed a continuing resolution (CR) that will fund those federal programs without approved FY03 budgets until November 22. While this CR ensures that all federal programs, including education programs, can continue to operate, it only funds these programs at last year’s funding levels. Thus, any funding increases approved by the Senate Appropriations Committee for FY03, including additional funding for Title I, the school library technology program, the professional development block grant, and the 21st Century Community Schools program, cannot take effect.

This five week long CR was necessitated by Congress’s inability to pass 11 of the 13 FY03 federal appropriations bills before the commencement of the new fiscal year on October 1. Without a budget agreement, the House and Senate have been at odds over Appropriations funding, especially the Labor, HHS and Education spending bill. The Senate is seeking an appropriation of $134.1 billion in discretionary funding for Labor, HHS, and Education, while the House Leadership and the Administration are seeking a figure closer to $130 billon. House Labor, HHS and Education Appropriations Subcommittee Chairman Ralph Regula (R-OH), bolstered by support from Democrats and Republican moderates, has refused to mark-up his subcommittee’s spending bill, claiming that the funds allotted to it by House leadership are insufficient to cover major priorities, including education.

Based on this dispute and the possibility of a change in control in the House, the Senate or both institutions, the outlook for federal education funding is highly uncertain. Congress must return to resume work on appropriations on November 22. If the election yields no significant changes, it may choose to combine all appropriations bills into a single omnibus measure and attempt to pass it over the likely objections of the Administration, which would like to hold line on spending. If the election leads to major changes in either party’s fortunes, Congress may opt to defer action on funding until next session, possibly as late as February. Should that scenario come to pass, states, districts, and schools will wait even longer for their full complement of FY03 federal education funds and any funding increases.

OERI Update

Congress Passes OERI

This month, Congress finally passed H.R. 3801, the bill to reauthorize of the Office of Educational Research and Improvement (OERI), and the President is expected to sign it into law soon. While the approved bill contains several new provisions promoting education technology technical assistance and research, it makes drastic changes to OERI’s structure, including consolidating the Regional Technology in Education Centers (RTECs) into the Comprehensive Centers, which will assume their technical assistance functions. It also establishes new resources to assist states, districts and schools to implement the No Child Left Behind Act by authorizing funds to initiate research on successful pedagogical practices and data management practices.

The bill incorporates education technology into many of OERI’s previously existing divisions. For instance, the bill maintains the Regional Laboratories and the Comprehensive Centers systems but revamps their missions, including charging them with delivering technical assistance in technology to education agencies. In the Labs, the bill explicitly allows the development of innovative approaches to the application of technology in education, potentially leading to the development of new forms of education software, education content, and technology-enabled pedagogy. In the Comprehensive Centers, the bill permits the development of teacher and school leader in-service and pre-service training models that illustrate best practices in the use of technology in different content areas.

Additionally, the bill infuses education technology into new structures created through this reauthorization. First, in the National Center for Education Evaluation and Regional Assistance, which is being established to provide technical assistance, evaluate educational programs, and disseminate research, Congress noted specifically that the National Center should disseminate education technology findings. Second, while the bill does not require that the eight newly constituted Research and Development Centers conduct research on education technology, it does encourage all of the centers to incorporate the potential or existing role of education technology, where appropriate, in achieving their goals. Third, in establishing the National Center for Education Research to manage the eight Research and Development Centers, Congress included within its duties carrying out research initiatives regarding the impact of technology. Specifically, Congress mandated research into how technology affects student achievement, long-term research into cognition and learning issues as they relate to the uses of technology, empirical research on the most effective and cost-efficient approaches to the use of technology, and field-based research on how teachers implement technology and Internet-based resources in the classroom.

One of the most visible impacts of the reauthorization, though, is the consolidation of the RTECS into the Comprehensive Centers. This change was made because Congress determined that even though states, districts, and schools had used the RTECs’ technical assistance services, the RTECs were ineffective and the Comprehensive Centers would be better equipped to take over their functions. Recognizing that a smooth transition from the RTECs to the Centers was critical, the framers of OERI reauthorization agreed to phase-out the RTECs over the next two years. Thus, although the RTECs are under a contract that expires in 2005, they will now only receive funding through 2004, at which point their technical assistance role will be assumed by the Centers.

Beyond streamlining the organization of OERI, the new OERI is also designed to help public education entities implement NCLB. To assist educators with the requirement that federal education funds only be used for programs based on scientifically-based research, the OERI reauthorization bill directs the National Center for Education Research to sponsor sustained, scientifically-based research in education, with an emphasis on increased student achievement. Additionally, it mandates that the National Center for Education Statistics encourage the use by states, districts and schools of scientifically valid education research and evaluations. Finally, it requires each of the 10 Regional Education Laboratories to provide training and technical assistance to states, districts and schools in administering NCLB’s provisions, particularly the scientifically valid research provisions.

The new OERI also includes a competitive grant program geared towards assisting states with improving their data management abilities in order to comply with NCLB’s requirement that they track adequate yearly progress of students in grades 3 through 8 in reading and math. Under this new program, as yet unfunded, state education agencies may use program funds to develop statewide, longitudinal data systems to track individual student progress based on unique student identifiers, to more accurately capture and report student data, and to facilitate research to improve student achievement.

The bill can be accessed at http://thomas.loc.gov.

E-Rate Update

Major Announcements Issued by Schools and Libraries Division

Two significant announcements by the Schools and Libraries Division (SLD) represent the most significant news about the E-Rate since the summer. In late September, SLD stated that it would be able to fully fund all internal connections requests from 90% discount eligible applicants. Shortly thereafter, SLD released the thirteenth wave of commitment letters, which heralded the distribution of $564.2 million in discounts to 90% internal connections applicants. This release brings the total amount of discounts announced in program year 5 to $1.l38 billion. SLD remains undecided on whether applicants with below 90% discount eligibility will receive some or all of their internal connections funding requests.

The other major announcement from SLD was the planned opening of the program year 6 application window. The Form 471 application filing window for Funding Year 6 (July 1, 200-June 30, 2004) will open at noon EST on Monday, November 4, 2002 and will close on Thursday, January 16, 2003 at 11:59 p.m. EST.

Despite all of this activity at SLD, there has been no news from the FCC on the status of two major rulemakings—one that would make major changes to the E-Rate's program rules and the other to reform the collections methodology for the universal service fund. Rumors continue to circulate that the Commission has decided not to issue an order on many of the rule changes proposed nearly ten months ago; rather, it will seek further comment on those rules where it believes some consensus can be reached. The Commission is not expected to issue an order on changing the universal service fund's collections system until early next year.

Teach Act Update

Congress Passes the Teach Act

Prior to the its recess for the upcoming election, Congress finally passed the Technology, Education and Copyright Harmonization Act of 2001(the TEACH Act) which updates the existing distance learning exception to the Copyright Act to accommodate the growth of digital age distance learning. Senators Patrick Leahy (D-VT) and Orin Hatch (R-UT), the Chairman and Ranking Member of the Senate Judiciary Committee, sponsored this bill, which the education and library community had advocated for four years. While it passed the Senate over a year ago, it has been held up, over unrelated issues, in the House since that time. In September, it finally passed the House Judiciary Committee and was incorporated into the recently passed conference report for the Department of Justice’s authorization bill. The President is expected to sign the DOJ authorization bill, and thus TEACH, into law soon.

This important new law will enable educational institutions to develop the full potential of online distance education, expand educational opportunity, and enrich educational content for traditional and nontraditional students alike. It accomplishes this by allowing the distance learning exception to apply to “anytime, anywhere” learning and by including multimedia content in the categories of work that can be used in online distance education without the permission of copyright holders. The TEACH Act also protects copyright holders by mandating certain digital copy protection and distribution safeguards, including limiting distribution of online course material to enrolled students only, and requiring the use of technological measures to reasonably prevent the unauthorized retention and redistribution of such material.

The full text of the bill is available online in the Thomas database: ftp://ftp.loc.gov/pub/thomas/cp107/hr685.txt, Section 13301.

Copyright Update

Two Fair Use Bills Introduced in the House to Amend Copyright Law

In the heated battle over digital rights management between the entertainment and technology industries, consumer rights advocates finally stepped up to the plate with two pieces of legislation that would amend the 1998 Digital Millennium Copyright Act (DMCA). A number of activities that fall within the fair use exemptions codified in the Copyright Act are illegal under the DMCA. In amending the DMCA, both bills clarify historic principles of fair use so that they apply fully to digital as well as analog transmissions.

Representative Zoe Lofgren (D-CA), a senior member of the House Judiciary Committee and a member of the Subcommittee on Courts, the Internet and Intellectual Property, introduced the “Digital Choice and Freedom Act of 2002” (HR 5522) on October 2. HR 5522 primarily:

Allows consumers to make back-up or archival copies of digital works and allows consumers to display digital works on preferred media devices.
Prohibits shrink wrap licenses that consumers can read only after they have purchased the product.
Gives “lawful consumers” the right to sell or give away copies of digital works.
Allows consumers to circumvent technology based copyright protection measures so as to make non-infringing uses of copyright work. It also permits the development of tools that are designed for that purpose.

Technology firms and technology trade associations such as the Computer and Communications Industry Association, generally support HR 5522 as it opens the door to the development of new products that are capable of copying digital media. Consumer rights advocates also support HR 5522 as it restores fair use rights that have been eroded over the past few years through the use of technologies that control how consumers use content. HR 5522 has been referred to the House Judiciary Committee.

Reps. Rick Boucher (D-VA) and John Doolittle (R-CA) introduced the “Digital Media Consumers’ Rights Act of 2002” (HR 5544) just a day later on October 3. Similar in spirit to Lofgren’s bill, the purpose of HR 5544 is to:

Establish new labeling and enforcement requirements that inform consumers about the recordability and playability of “copy protected compact discs.” The bill amends an existing law titled the Federal Trade Commission Act (FTCA) and grants the Federal Trade Commission the power to regulate labels on audio CDs.
Permit people to bypass copy-protection schemes for legitimate purposes such as research into new technology protection measures and the use of copyrighted works within the fair-use exemption.
Permit the manufacture and distribution of a hardware or software product capable of non-infringing use of a copyrighted work. This provision is intended to ensure that consumers have access to technologies by which to engage in the activities authorized by this legislation.

The Boucher-Doolittle proposal enjoys support from technology and telecommunications industry heavy weights including Intel, Sun Microsystems, and Verizon; consumer rights organizations such as Consumers Union and Public Knowledge; and trade associations such as the Consumer Electronics Association. This support is part of a careful strategy that has gathered momentum in the two years since the bill was first drafted. By drafting much of it as amendments to the FTCA, Boucher and Doolittle seek to put HR 5544 within the primary jurisdiction of the Commerce Committee rather than the Judiciary Committee, which generally oversees matters pertaining to intellectual property rights. HR 5544 is more likely to receive favorable action from the Commerce Committee than from the Judiciary Committee, which has historically tended to favor copyright owners.

The two proposals have almost no possibility of passage before Congress adjourns this month because they were introduced so late in the legislative session. Nonetheless, they will hopefully influence debate in the next session of Congress.

FTC Public Workshop Highlights Regulatory Hurdles for Cybercharter Schools

The Federal Trade Commission (FTC) recently held an interesting debate on cybercharter schools as part of a three-day public workshop on the “Possible Anticompetitive Efforts to Restrict Competition on the Internet.” The session on cybercharter schools focused on legal and geographic barriers to the establishment of cybercharter schools and featured remarks by federal and state government officials as well as cybercharter school operators.

One major topic of conversation was the issue of how cyber charter schools operate across state boundaries. As the panelists noted, traditional charter schools receive state charters that only allow them to operate within that state’s borders while cybercharters, by there very nature, can serve students in multiple states and even other countries. The question of whether state or federal law applies to cybercharters was discussed at length by John Bailey, Director of the Office of Educational Technology at the Department of Education, and representatives of Pennsylvania’s government and largest teacher association. Bailey stated that his office is still trying to define a federal role with respect to cybercharter schools within the framework of the No Child Left Behind Act. Tom Gentzel, Executive Director of the Pennsylvania School Boards Association and Charles Zogby, Pennsylvania’s Secretary of Education, believe very strongly that education is primarily a function of the state.

Another issue that arose was the status of for-profit cybercharters. Ron Packard, who operates for-profit cybercharter schools in about 6 states, indicated that the lack of uniform laws on for-profit cybercharters could hamstring his business. Each state legislature can take a different approach to regulating cybercharters, leading to a patchwork of inconsistent regulations that make it difficult for entrepreneurs to operate national cybercharter programs. As an example, he noted that the last two states to enact legislation for cybercharter schools forbade for-profit charter schools. Additionally, many cybercharter schools become the target of lawsuits even if a state has a cybercharter school law in place. Furthermore, with each state establishing its own curricular standards and possessing different teacher accreditation rules, it becomes increasingly difficult for cybercharter schools to modify curricula according to state standards and ensure that its instructors meet state teacher certification rules.

.Kids Update

Dot-Kids Domain in the Dot-US Domain

Last month witnessed continuing movement, but no resolution, on efforts by Congress to mandate a safe place in cyberspace for children by creating a .kids domain. On September 12, the Senate Science, Technology, and Space Subcommittee of the Commerce, Science, And Transportation Committee held a hearing on The Dot Kids Implementation and Efficiency Act of 2002, S. 2537. This bill was introduced by Senator Dorgan (D-ND) and is cosponsored by Senators Ensign (R-NV), Boxer (D-CA), and Fitzgerald (R-IL). On the House side, Rep. Shimkus (R-IL) and Rep. Markey (D-MA) are the primary sponsors.

The history of efforts to establish a haven for children on the web by creating a .kids domain has its roots in a number of Congressional studies and the Children’s Online Protection Act (COPA) Commission Report. All of the Congressionally mandated studies on how to best protect children from exposure to "harmful to minors" material have examined the effectiveness of creating a new ".kids" top level domain, similar to .com or .org, which would be limited to material that is appropriate for minors. The COPA Commission found that although a .kids top level domain would be effective if minors were restricted to using that domain, it would raise First Amendment concerns, especially for older minors, where informative and appropriate material is rendered inaccessible. Legal scholars and technology experts raised additional questions regarding who would be responsible for determining the standards for what could be included in the .kids domain, especially since different countries have very different standards for what is appropriate for minors.

Approximately a year ago, Reps. Shimkus and Markey introduced a bill requiring ICANN (the Internet Corporation for Assigned Names and Numbers) to create a .kids top level domain. After a number of policy makers complained that ICAAN was not sufficiently independent and was an international organization, Representatives Shimkus and Markey revised their bill to require that NTIA and the registrar for the .us top level domain, instead of ICAAN, create a .kids second level domain. S. 2537 is the Senate companion to that bill. The Shimkus-Markey bill would create a .kids.us domain in which only material that is "suitable for minors" under 13 years old could be posted, and which would be free of "harmful to minors" material. The registrar of the .us country code domain would be responsible for developing written content standards for what is "suitable for minors." Use of the domain would be entirely voluntary.

Although the registrar would have the responsibility for developing these content standards, the bill would set two specific limitations around what is suitable for minors. First, the bill would not allow content providers using the .kids.us domain to link to resources, however appropriate they might be, or to sites hosted outside of the .kids.us domain. For example, disney.kids.us could not link to disney.com or disney.fr. Second, the bill would prohibit content providers from creating interactive sites within .kids.us, unless they comply with to-be-determined written requirements that are constructed and operated to protect minors from harm.

Both of these restrictions make it difficult to imagine that established commercial web sites will want to move from .com domains into .kids.us, however, the content community has not raised concerns about this bill. In addition, the fact that participation is entirely voluntary has addressed many of the concerns from First Amendment organizations, although the Center for Democracy and Technology continues to oppose it.

Four witnesses appeared before the Senate Science, Technology, and Space Subcommittee of the Commerce, Science, And Transportation Committee: Rep Shimkus (R-IL) Mr. Ruben Rodriguez, Director, Exploited Children Unit, National Center for Missing and Exploited Children; The Honorable Ann Brown, Chairman, Safer America for Everyone, former head of the Consumer Product Safety Commission; and Mr. James A. Casey, Director of Policy and Business Development, NeuStar.

Supporters focused on the idea that parents lack the technological capability to protect their children online, and would value the kind of a "walled green space" where their children would be safe. They also compared .kids.us to the children's room of a library, where children can explore freely without risk of encountering shocking or inappropriate material.

Only Mr. Casey opposed the bill. Casey's company, NeuStar, was awarded the contract to administer the .us top level domain just days before this bill was first introduced in the House. His company committed to creating a .kids.us second level domain in its bid for the contract, but Casey is concerned that the bill's timeline and other administrative procedures are not feasible. Additionally, he noted the difficulty in regulating domain space and uncertainty as to whether legislation would actually address the concerns identified.

The House version of this bill, H.R. 3833 is likely to be voted on by the full House in November. The full text is available at http://thomas.loc.gov/cgi-bin/query/D?c107:1:./temp/
~c107Z42p64. It is unlikely that the Senate will vote on the bill this year. However, this issue will almost certainly arise again in the 108th Congress.

October 2002 Washington Notes