Update: EDUCAUSE responds to the FCC's new net neutrality policy move

What should higher education do about the United States FCC‘s upcoming move against net neutrality?

To get a handle on this question I interviewed Jarret Cummings, the director of policy and government relations for EDUCAUSE.  Jarret was very generous with his time and my questions, and gave us the latest news.

Here’s our exchange.  My questions have been edited lightly for clarity.  I added links to resources throughout.

BRYAN: Have you (or EDUCAUSE) issued a more recent statement about the FCC’s impending policy change since your November post?

JARRET: No, not yet – we’ve been working with ACE and the other presidential associations as well as ARL, NACUBO, and others throughout the current process; we’ll have to take stock with our partners on what further statement we think would be most effective given the pending FCC order.

BNA: What actions would EDUCAUSE take, alone or in concert with those research libraries, to try to restore net neutrality? i.e., would you consider lobbying, public advocacy, endorsing candidates for office, aligning with pro-net neutrality companies, etc.

JSC: Since net neutrality impacts the interests of colleges, universities, and libraries as a whole, EDUCAUSE has found that we can best serve our members on this issue by working with a coalition that broadly represents institutional leadership. As non-profit groups, we and our partners can’t engage in lobbying or other political activities like those you mentioned. But we can, and I expect we will, continue to highlight higher education and libraries as major stakeholders in net neutrality with serious concerns about how its loss may impact our ability to serve students and communities.

What form those efforts take will depend on the nature of the legal challenges and legislative efforts likely to arise as a result of the FCC’s action.

BNA: When you and partners “highlight higher education and libraries as major stakeholders in net neutrality…”, does this mean EDUCAUSE will conduct public advocacy, or pursue other channels as well?

JSC: It could take the form of submitting an amicus brief in a case seeking to overturn the FCC order and restore the existing rules, or meeting with members of Congress to provide information about how the missions of colleges, universities, and libraries are adversely impacted by a lack of net neutrality. As we’ve consistently tried to explain throughout the net neutrality proceedings in which we’ve participated, net neutrality isn’t just a commercial issue – public service organizations that fulfill vital social, cultural, and civic functions rely on a level playing field online to accomplish their missions. Those are missions at which the country needs us to succeed, and the loss of net neutrality clearly threatens our ability to do so.

BNA: What would you advise member institutions to do?

JSC: I think it’s premature to advise any particular course of action; the FCC’s proposed order indicates that it is no longer open to persuasion, and we don’t know yet what shape a court case or possible Congressional legislation might take, or when. As we sort through those developments in the months ahead, though, it would certainly help for our associations to know that our member institutions support us in working to maintain, or as now seems likely, restore real net neutrality protections.

BNA: Do you think Pai’s new policy, when it comes out next month, will be stymied in courts?  (cf Tim Wu’s argument)

JSC: Any answer I could offer would be pure speculation; there’s simply no telling what a judge or judges “to be determined” might do when presented with the pros and cons of a case that has yet to be filed. That said, the FCC majority is proposing a radical departure from the agency’s historical treatment of net neutrality, even under previous Republican leadership, and it’s asserting in effect that the deference the courts generally afford regulatory agencies is all it really needs to justify doing so. I believe there’s reason to hope a court might see enough to question in that justification, especially given the law governing federal rule-making, that it would issue a stay pending the outcome of the case. That would leave the current rules in effect until the case is decided, which could take a couple of years and thus take us into a different legislative environment.

BNA: Would you consider partnering with technology and/or ed tech companies to help build the case for net neutrality?  Some of these have issued public statements against the FCC’s likely decision, and in favor of maintaining net neutrality. For tech firms I’m thinking of Google, Facebook, Netflix, etc.; for ed tech, businesses like Blackboard, etc.

JSC: I believe that would depend on the case those firms and their industry associations are trying to make. From my perspective, higher education and library groups would have to see strong alignment between our positions and those of other stakeholders, such that working together allows us to better accomplish our members’ goals while not compromising our communities’ principles and interests.

BNA: What can individuals do who are working in, or taking classes from, educational institutions?  Can EDUCAUSE or your partners in this cause offer us any resources or advice?

JSC: The pending FCC order reflects such a dramatic departure from its previous approaches to net neutrality – not just under the Obama Administration but under the Bush Administration as well – that it’s very hard to say when and how we’ll see its effects on students and other individual consumers. And it’s possible that a federal appeals court ruling could prevent such effects from ever taking place. However, students, faculty, and other higher education and library stakeholders should let their institutions know if they start to experience a loss of effective access to the institution’s online resources and services. If those problems can be linked to anti-net neutrality steps by their broadband service providers, it will help us to more clearly illustrate the basic case we’ve been making – losing net neutrality puts the capacity of the Internet to effectively support learning, research, and service at significant risk.

Bryan again: to sum up, EDUCAUSE sees Pai’s upcoming shift as a danger to higher education.  They are participating in broad-based collaborative efforts with a range of partners (librarians, presidents, chief financial officers) to encourage the FCC to abandon this course, as far as they are able.

  Theirs is a practical, not ideological critique, focused on student access and success.

Who else in higher education is taking such steps?

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