Net Neutrality Court Ruling Could Challenge Ed-Tech Companies Around Content Delivery

Senior Writer

A new federal court ruling on the issue of “net neutrality” leaves K-12 educators and education companies still wondering how regulations that critics say could slow or block the delivery of online content will play out.

A 200-page decision issued this week by the U.S. Court of Appeals for the District of Columbia upheld much of the Federal Communications Commission’s Restoring Internet Freedom Order. That policy, approved in late 2017, repealed an Obama-era policy designed to protect net neutrality — the idea of preventing internet service providers from blocking or throttling the flow of internet content for business reasons.

But this week’s court ruling did provide an opening for states to create their own regulations around net neutrality and possibly add protections back in. Some states have already signaled a willingness to move in that direction. Last year, attorneys general from more than 20 states sued to block the FCC around this issue. 

Critics of the FCC’s order worry that without net neutrality protections, internet service providers may block or decelerate some content, or funnel some content to a “fast lane” based on financial agreements or contracts. Some K-12 education advocates and ed-tech companies have raised the alarm, worried that the delivery of digital educational content could suffer.

“Ed-tech companies have always been concerned that without net neutrality their content might be delivered to schools at a slower rate,” said Sara Kloek, the director of education policy at the Software & Information Industry Association, or SIIA, in an interview. “They don’t want students to wait around for buffering content when they should instead be learning about science.”

Some Praise From Both Sides

Groups on both sides of the issue praised aspects of the ruling in the case in which a collection of consumer groups and tech companies appealed the FCC order dismantling net neutrality.

FCC Chairmain Ajit Pai, who championed that repeal, hailed the court decision as a “victory for consumers, broadband deployment and the free and open internet.”

Pai has argued that federal transparency requirements will prevent the type of behavior from internet providers that raise concerns around “slow lanes” and “fast lanes” for content, and that without net neutrality restrictions service providers have more freedom to make technology upgrades and innovate for the benefit of consumers.

However, FCC Commissioner Jessica Rosenworcel, a leading voice in support of net neutrality protections, also praised the ruling, saying it “vacates the FCC’s unlawful effort to block states and localities from protecting an open internet for their citizens.”

Several organizations took a mixed view. For example, the president of the American Library Association noted that while this week’s court ruling didn’t restore net neutrality, it was encouraging that it allows states to enter the process.

“Without strong and clear net neutrality protections in place, there is nothing to stop internet service providers from blocking or throttling legal internet traffic or setting up commercial arrangements where certain traffic is prioritized,” ALA president Wanda Brown said in a statement, calling the decision “another chapter in a long effort to ensure open internet for all.”

But Erin Mote, the executive director of InnovateEdu, said she continues to worry about the impact that the FCC’s order could have on students and the entrepreneurs that create digital content and tools for them. She said the order could have a chilling effect on education innovation, as tech developers and designers may find themselves weighing what type of content can be delivered smoothly to students.

“I worry that if an entrepreneur, a designer, a curriculum provider is thinking ‘I can’t design this piece of curriculum because the graphic load will be too much,'” it will mute the type of creative, immersive, accessible products that reach students, Mote said.

In addition, Kloek said allowing states to set their own rules could create a patchwork system of laws that different from state to state, presenting a challenge for education companies who already have to navigate individual states regulations around everything from data privacy to procurement.

“We’re a little concerned about that, but we still don’t know how it will shake out,” she said.

While Mote also raised concerns about states having a different regulations, she said it presents the opportunity for new ideas in the space to surface–as long as state policymakers are educated on how their decisions could play out.

“This could open states to innovation,” she said. “But if they want to do something different, they have to do it in a way that doesn’t create a whole slew of unintended consequences.”

Mary Keeling, the president of the American Association of School Librarians and the supervisor of school libraries at the Newport News, Va. public schools she could envision the type of “throttling” that raises concerns for both educators and ed-tech companies.

That type of slowdown could have an amplified impact on students who lack internet access at home or live in rural areas. These students may only be able to access learning games, digital simulations and the type of engaging resources that need more broadband capability at school, but could be frustrated by barriers to access at school, she said.

For information transmitted over the internet “to be subject to commercial requirements that allow our providers to …slow things down based on what kind of customer they have,” Keeling said, “is terrible.”

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