With federal policy debates currently dominated by tax-and-spending issues along with immigration, one might easily lose sight of the relatively recent, dramatic shift in Federal Communications Commission (FCC) policy on network neutrality. In part, this is because the 2017 FCC order changing the rules on network neutrality has yet to take full effect. On February 22, the FCC finally published in the Federal Register the order that Republican commissioners passed in December on a 3-2 vote. That gives legal force to limited elements of the order, but most of its provisions, including the most significant ones overturning network neutrality protections, will not become official until the Office of Management and Budget (OMB) approves data collection requirements involved in the order’s implementation.

On the plus side, Federal Register publication allows lawsuits challenging the order to become official as well, getting the long, slow legal process to assess its validity truly underway. The continuing delay in full implementation of the order, however, leaves both advocates and detractors of network neutrality in a short-term limbo, knowing what is coming but limited in their next moves until OMB finishes working its bureaucratic magic. Fortunately, this delay provides room to reflect on the importance of network neutrality to higher education. It also allows for consideration of how the FCC order overturning network neutrality protections merely concludes the start of the latest cycle in a long-running argument.


What Do We Mean by “Network Neutrality?”

Before diving into the current process, it helps to define the concept of “network neutrality.” Simply put, it encompasses the idea that all internet service providers (ISPs) serving the general public should treat all data crossing their networks equally, subject to reasonable network management practices. Under this concept, an ISP cannot sell a web content provider such as Netflix the right to have its video streams delivered across the ISP’s network at a faster speed than those from Hulu, for example. Known as “paid prioritization,” such a practice would give Netflix a competitive advantage while limiting the end-user’s choice of video services, since video streams that are transmitted more slowly may make the service to which they are related less functional. On the other hand, given the bandwidth demands of high-definition streaming video and the impact on its functionality if it doesn’t reach the end-user at appropriate speeds, an ISP may manage its network to ensure the effective delivery of streaming video in general, without regard to source; this would be a reasonable network management practice.

While the concept of “net neutrality” includes the principle of “no paid prioritization,” it also encompasses the principles of “no blocking” and “no throttling,” too. Just as treating all data equally means that a company should not be able to pay to have its data transmitted faster than data from other providers, it also means that an ISP should not be able to block the data traffic of any lawful provider from reaching an end-user, nor should the ISP be able to slow (or throttle) the traffic from any lawful provider as it transits the ISP’s network, except as necessary to ensure that the network doesn’t crash, for example. Again, the principles at work here are intended to prevent ISPs from leveraging their control over their customers’ access to the internet to determine what those customers can access or unduly influence from whom they choose to access it. (This is the other side of the earlier example – in the absence of network neutrality, an ISP that owns a video service might seek to gain a competitive advantaged by deliberately blocking or slowing video streaming from sources other than its service.)


Network Neutrality and Higher Education

EDUCAUSE, the association for the higher education IT community, has long partnered with its fellow higher education and library associations to ensure that the importance of network neutrality to our communities is understood in federal policymaking circles. We actively participated in the 2014-15 FCC process that led to strong network neutrality rules, where the then-final order acknowledged the contributions of higher education and library groups. When the current FCC chairman, Ajit Pai, announced last year that the Republican majority on the Commission would seek to overturn the 2015 rules, we again helped to organize an association coalition to highlight the problems that a loss of network neutrality would pose for higher education and libraries.

Across both FCC proceedings, and in fact dating back to the dawn of network neutrality under then-FCC Chairman Michael Powell during the George W. Bush Administration, higher education and libraries have had very consistent concerns in relation to network neutrality. Even in the early 2000s, one could see that online access to learning and knowledge resources would become central to the missions of our institutions, both for serving on-campus stakeholders as well as those we support at a distance. As UPCEA members know better than anyone, our institutions and their stakeholders very much live that reality today.

It is almost impossible to conceive of the modern higher education institution successfully fulfilling its mission without being able to deliver learning and knowledge resources to students and faculty via their home and mobile internet connections. As online courses and resources have become increasingly data-intensive, multimedia offerings, and the necessity of their delivery to end-users at appropriate, high-bandwidth (or broadband) speeds only continues to grow. This need makes the possibility that ISPs might freely implement paid prioritization or blocking/throttling measures a major challenge to our ability to serve our students and communities.

If paid prioritization reigns, we could easily see colleges, universities, and libraries priced out of the market for effective delivery of their online content as entertainment companies bid up the cost. The effect might be small at first, given the bandwidth availability many home and mobile broadband users currently enjoy. As financial incentives drive ISPs to focus more and more on facilitating prioritized delivery of content from providers that pay for it, however, the bandwidth available over home and mobile connections for “everything else” could become more and more constrained. Essentially, we could see the “cable-ization” of the internet, with higher education and libraries relegated to the equivalent of a public access channel.

Likewise, as ISPs search for new sources of revenue, the ability to block or throttle data traffic to home and mobile users could provide an irresistible means of driving new revenue when combined with ISP-owned content sources. We have already seen large telecommunications companies acquire major film and television companies, seeking to leverage entertainment and news assets to increase profitability. As telecommunications conglomerates continue to look for new sources of revenue, it is not hard to imagine a day when a telecommunications company might acquire a major for-profit higher education provider, putting it in direct competition with programs from our institutions. Without strong network neutrality rules, it could then use its unfettered control of its subscribers’ home and mobile internet connections to block or throttle traffic from competitors, giving its higher education subsidiary a significant competitive advantage over our institutions’ offerings.

Unfortunately, the December FCC order gives ISPs that unfettered control. It eliminates the “no blocking, no throttling, and no paid prioritization” rules established in 2015 and replaces them with only a transparency requirement. In essence, once the new order takes full effect, an ISP can pursue any or all of those previously prohibited measures as long as it publicly discloses what it is doing. The FCC majority believes that removing the existing rules and relying instead on market competition to ensure fair play by ISPs will create the conditions for a dramatic increase in private-sector investment in broadband networks. Despite significant evidence to the contrary, they assert that the network neutrality protections established in 2015, which were enabled by reclassifying consumer broadband service as essentially a utility, crippled investment in high-bandwidth networks serving home and mobile users. Eliminating “unnecessary government interference and overregulation,” they argue, will restore the financial incentives for ISPs to once again rapidly expand broadband networks, including in underserved rural and low-income communities.

Setting aside the FCC majority’s questionable assertions about network neutrality hurting broadband investment, its argument that dramatic investment growth will be spurred without enabling the worst impulses of ISPs hinges on the view that transparency about ISPs’ data management measures will allow market competition to limit their anti-net neutrality behavior. Home and mobile broadband subscribers will be able to know what their ISPs are doing and change providers if they do not like the results. This outcome, of course, assumes that sufficient competition exists in local internet access markets to enable subscribers to “vote with their feet” in favor of providers that respect network neutrality.

As we wrote in our comments to the FCC, its own data shows this not to be the case. Using a generous definition of what constitutes high-speed internet access, the current FCC majority argues that there is sufficient competition to support its position because roughly 60 percent of Americans live in areas at least partially served by at least two broadband providers, while another 9 percent have access to three or more providers. First, I would note that this leaves roughly 30 percent of the population without a competitive market for broadband internet access. Second, one can hardly call the majority of the country having only two choices for broadband internet access a competitive environment that will adequately deter anti–net neutrality behavior. Given that each provider would stand to derive significant additional revenue from their subscribers by not maintaining network neutrality, it is much more conceivable that they would choose to compete on some other basis.


What Comes Next?

The FCC does not have the final say, however, and there is a reasonable chance that the federal courts will keep us from experiencing a truly network neutrality-free world. Twenty-one states plus the District of Columbia, as well as a number of public interest groups, filed suit in the DC Circuit Court of Appeals earlier this year seeking to overturn the FCC order. They argue that the FCC’s action is “arbitrary and capricious,” and thus prohibited, under federal law. Given that the suits were filed before the order gained official status by being published in the Federal Register, the plaintiffs refiled their cases shortly after the order was published to try to ensure that they will remain in the DC Circuit, which is expected to give them a favorable hearing.

If the court agrees to issue a stay of the FCC order pending the outcome of the case or cases—it may decide to consolidate the separate filings into one—then the 2015 network neutrality rules will remain in effect until the court rules. That could easily be a couple of years from now, although the FCC would not strongly enforce the rules under its current leadership. Keeping the rules on the books, though, would probably deter the most serious ISP efforts at bypassing network neutrality pending the outcome of the legal process.

Likewise, a number of states have initiated efforts to maintain network neutrality that may circumvent the FCC’s attempt to block such state action. Rather than trying to pass state laws setting network neutrality rules that conflict with the FCC order, states such as Montana, New Jersey, and New York have mandated that contracts for supplying state agencies with telecommunications services only go to companies that adhere to strong network neutrality rules. The FCC will almost certainly challenge these state efforts in court on the grounds that federal authority supersedes state authority in relation to interstate commerce. No one knows, however, if the FCC can prevail given that the states’ actions apply to their own state entities.

Congress could settle the issue of network neutrality by passing new legislation to enshrine relevant protections in law. Leaders and members of both parties in both houses of Congress have said they would like to see this happen, but it is unlikely to occur before the mid-term elections later this year. Congress lacks a consensus on how to proceed, particularly regarding the thorny question of whether any form of paid prioritization should be allowed, and it already has a full calendar of contentious issues. In addition, the way in which the court rules on the legal challenges to the recent FCC order has significant implications for the leverage each side has in legislative negotiations. Given that the mid-terms will similarly impact who can demand what in terms of a compromise, we probably will not see a legislative “fix” for network neutrality until 2019 at the earliest.

In the meantime, the courts and the states provide hope that network neutrality will be maintained, as it must be to sustain the vital public interests served by colleges, universities, and libraries. Higher education and library associations remain committed to advancing network neutrality to the extent possible, whether that means lending support to lawsuits seeking to overturn the 2017 FCC order or reminding policymakers of the important stakes for our communities in any legislative solutions. The beginning of the latest round in the network neutrality debate has ended, but the debate itself is far from over.


Jarret Cummings serves as Director of Policy and Government Relations for EDUCAUSE, a higher education technology association and the largest community of IT leaders and professionals committed to advancing higher education. In this capacity, he manages EDUCAUSE efforts to address federal policy issues with significant implications for higher education IT, which includes leading development of its positions and facilitating collaboration with other groups on issues of mutual interest.