While much of the speculation about the future of education technology under President Trump has been focused on the new Secretary of Education Betsy DeVos (her investment in various ed-tech companies, her support for vouchers and charter schools), it’s probably worth remembering that the Department of Education is hardly the only agency that shapes education and education technology policy.
The FCC plays a particularly important role in regulating the telecommunications industry, and as such, it has provided oversight for the various technologies long touted as “revolutionizing” education – radio, television, the Internet. (The FCC was established in 1934; the Department of Education, in 1979; its Office of Educational Technology, in 1994.)
Tom Wheeler, the head of the FCC under President Obama, stepped down from his role and left the agency on January 20 – the day of President Trump’s inauguration. Wheeler had been a “champion” of net neutrality and E-rate reform, according to Education Week at least, but his replacement, Trump appointee Ajit Pai, seems poised to lead the agency with a very different set of priorities – and those priorities will likely shape in turn what happens to ed-tech under Trump. As an op-ed in The Washington Post put it, “The FCC talks the talk on the digital divide – and then walks in the other direction.”
Indeed, one of the first moves made by the FCC under Pai was to block nine companies from providing subsidized Internet service to low-income families.The agency also rescinded a report about the progress made in modernizing the E-rate program, something that had been the focus of Wheeler’s tenure – a report that had been released just two days before Wheeler left office – removing it from the FCC website altogether. (An archived copy is available via Doug Levin’s website.)
Senator Bill Nelson (D-FL), the ranking member of the Senate Committee on Commerce, Science and Transportation, issued a strongly worded rebuke to that move, calling E-rate “without question the single most important educational technology program in the country.”
Despite this praise, the program has long been controversial, frequently criticized for fraud and waste. Arguably, E-rate is one of the key pieces of ed-tech-related legislation in the US, and as such it’s worth examining its origins, its successes, and its failures.
What can E-rate tell us about the relationship between politics and ed-tech? Who has benefited?
A History of E-rate Legislation
E-rate is the name commonly used to describe the Schools and Libraries Program of the Universal Service Fund, established as part of the Telecommunications Act of 1996. The act called for “universal service” so that all Americans could have access to affordable telecommunications services, regardless of their geographical location. The legislation also ordered telecom companies to provide their services to all public schools and libraries at discounted rates – from 20% to 90% off depending on the services provided and number of students receiving free and reduced school lunches. The program, whose subsidies were initially capped at $2.25 billion, was to be funded through mandatory contributions from telecom providers – the Universal Service Fund (USF). (Telecom providers added fees to customers’ bills in order to pay for their contributions.)
The FCC initially appointed the National Carrier Exchange Association, the non-profit organization charged with managing the USF, with handling the E-rate program, but eventually a new organization was created to do this: the Universal Service Administrative Company (USAC).
From the outset, the program faced Congressional scrutiny, with questions about its scope, its management, and its funding. In particular, legislators were concerned that the charges levied on telecoms in order to pay for E-rate might be a tax (rather than a fee). (If the charges were a tax, it would be unconstitutional for the Executive branch and not Congress to exact them.) Some members of Congress also objected to the level of funding for E-rate. They argued that the program cost too much money and took needed funds away from other “universal service” efforts; some proposed that the program be replaced by block grants.
In 2014, the FCC undertook a “modernization” plan for E-rate in part to address the changing demand for telecommunications services. The agency issued an order to support affordable access to high-speed broadband in particular (not merely “access to the Internet”) and to boost access and bandwidth of schools’ WiFi networks.
As part of these modernization efforts, in 2015 the funding cap for E-rate was increased to $3.9 billion and the way in which funds were allocated was an adjusted – all in an attempt to “spread the wealth” beyond just a few large districts that had historically benefited most from the program.
According its January 2017 report, the FCC’s modernization push enabled some 77% of school districts to meet the minimum federal connectivity targets by the end of 2016; just 30% had met those requirements in 2013. (That is, Internet speeds of 100 Mbps per 1000 users.) During the same period, the cost that schools paid for Internet connectivity fell from $22 to $7 per Mbps.
“Progress,” the FCC boasted in the report. “No comment,” the FCC said in February when asked why the report on the modernization efforts had been pulled from its website. Commissioner Pai had voted against those efforts, for what it’s worth, back in 2014, saying that the FCC order did little to curb bureaucracy or waste.
A Brief History of E-rate Fraud
Throughout its history, the E-rate program has faced repeated scrutiny from Congress, from Republican members of the FCC like Pai, and from the General Accounting Office, which issued a report in 2005 that took issue with the “unusual” organizational structure of the USAC and questioned whether or not E-rate was sufficiently responsive to accountability standards that would “help protect the program and the fund from fraud, waste, and abuse.”
And there have been plenty of accusations and lawsuits regarding “fraud, waste, and abuse.” Among them: an $8.71 million settlement paid by Inter-Tel in 2004 over accusations of rigging the bidding process. A $21 million settlement paid by NEC in 2006 for price-fixing. An $8.2 million settlement paid by AT&T in 2009 over accusations of non-competitive bidding practices and overcharging. A $16.25 million settlement paid by Hewlett Packard in 2010 over accusations of fraud. A $3 million settlement paid by the New York City DOE in 2016 over accusations of mishandling the bidding process. (Here is the full list of those who’ve been convicted of criminal or civil violations and have therefore been barred from participating in the E-rate program.)
As some of these settlements highlight, while the E-rate program was supposed to ensure that schools received discounted telecommunications services, this hasn’t always happened. ProPublica reported on over-charging in the E-rate program in 2012,
Lawsuits and other legal actions in Indiana, Wisconsin, Michigan and New York have turned up evidence that AT&T and Verizon charged local school districts much higher rates than it gave to similar customers or more than what the program allowed.
AT&T has charged some schools up to 325 percent more than it charged others in the same region for essentially the same services. Verizon charged a New York school district more than twice as much as it charged government and other school customers in that state.
Despite these issues, a court decision in 2014 blocked the USAC from prosecuting telecoms for making false statements about offering schools and libraries the “Lowest Corresponding Price,” arguing that this falls outside the False Claims Act, a statute that allows the government to pursue fraud claims against businesses. The burden of proof that schools and libraries are being offered a competitive price falls on the applicants themselves.
E-rate and the History of the Future of the “Digital Divide”
When the E-rate program was first established in 1996, only 14% of K–12 classrooms in the US had access to the Internet. Almost all schools are now connected to the Internet, although – as that FCC modernization report underscores – not all classrooms have access to high-speed broadband, and not all schools have WiFi networks that can support the heavy data demands on their bandwidth. According to EducationSuperhighway, a non-profit organization that lobbies for increased Internet access, 88% of public schools now have the minimum level of Internet access – that is, 100 kbps per student), although just 15% offer the FCC’s goal – that is, 1 Mbps per student.
According to both EducationSuperhighway and the FCC, it is imperative to “level the playing field” so that schools and libraries, regardless of geographic location or the income level of students they serve, all have access to affordable high speed Internet. Certainly in the 1990s, when E-rate was introduced, its goal was to address this very issue – “the digital divide.”
Cost has certainly remained a barrier for the poorest schools, as has the infrastructure itself in some areas – a lack of high speed broadband service altogether, for example. Some schools “cannot overcome the 19th century buildings to take advantage of 20th century technology,” Education Secretary Richard Riley told The New York Times in 2000.
But there’s another access to “the digital divide” beyond simply who can afford “the digital,” and that’s something that Macomb Community College professor Chris Gilliard calls “digital redlining”: “the growing sense that digital justice isn’t only about who has access but also about what kind of access they have, how it’s regulated, and how good it is.” That issue with “what kind of access” is core to E-rate because of an associated law, the Children’s Internet Protection Act.
The act, known as CIPA, was passed in 2000 – one of a series of pieces of legislation that attempted to curb if not criminalize “adult materials” online in places “where minors would be able to find it.” The Communications Decency Act, for example, was passed in 1996 – the same year as the Telecommunications Act – but was found unconstitutional by the Supreme Court the following year. In 1998, Congress again sought to address children’s exposure to “harmful materials” with passage of the Child Online Protection Act, but this too was challenged in court. The Supreme Court also found the Child Pornography Prevention Act of 1998 unconstitutional in 2002.
Recognizing these legal challenges, Congress took a slightly different tact with CIPA. Rather than regulating content on the Web writ large, it opted to restrict what schools and libraries that receive federal funding – through the Library Services and Technology Act, Title III of the Elementary and Secondary Act, the Museum and Library Services Act, or E-rate – could allow people to view online. CIPA requires schools and libraries to create “acceptable use” policies for Internet usage, to hold a public meeting about how it will ensure safety online, and to use a “technology protection measure” to keep Internet users away from materials online that are “obscene,” “child pornography,” or “harmful to minors.” That is, CIPA requires Web filtering.
The law has faced its own share of legal challenges, including one from the American Library Association. The Supreme Court ruled in 2003 that CIPA does not violate the Constitution.
One of the myriad complaints about CIPA is that it results in “over-filtering” – that schools and libraries block content that are not “obscene” or “harmful to minors.” There are many stories about how information about things like breast cancer or LGBTQ issues or drug abuse is inaccessible at certain schools. (I have found that my website is blocked by many because it contains that dangerous word “hack.”)
Now that schools are increasingly providing students with laptops or tablets, filtering software often happens at the device-level, not simply at the school network level. That is, the Internet remains filtered, even when students are on their laptops at home.
Clearly this is an equity issue – one that complicates how “the digital divide” has traditionally been framed and what E-rate was supposed to address. Those who rely on the Internet networks at E-rate supported schools have their Internet access restricted and monitored in turn.
E-rate and the Future of Ed-Tech
The decision by the new FCC to rescind its report on E-rate raises plenty of questions about the future of the program under President Trump. Will the FCC reduce spending on universal service? Will the agency revise regulatory oversight for the E-rate program? What might this look like?
How might this, alongside Ajit Pai’s opposition to “net neutrality,” reshape access to information at schools and libraries (particularly those that serve a low-income population and those in rural areas)?