At its July 18 meeting, the Federal Communications Commission will vote to approve a regulatory order that would expand the agency’s E-Rate program. Historically the program has funded internet connections to physical school and libraries. With this order, E-Rate would subsidize Wi-Fi hotspots that schools and libraries could loan out to students, school staff, and library patrons, allowing them to be used off premises—essentially anywhere the devices could provide a Wi-Fi connection.
Of course, funding Wi-Fi hotspots for remote learning may sound unobjectionable in theory. But apart from potentially violating the law, the policy could have several negative consequences—from increased taxes on phone bills to harms caused by enabling unsupervised internet use by children.
First, consider the legal issues. Section 254 of the 1996 Telecommunications Act, which authorized the E-Rate program, states, “Elementary and secondary schools and classrooms … and libraries should have access to advanced telecommunications services.” The order’s expansive, or imaginative, reading of the program’s authority to include funding for off premises hotspots is consistent with a trend of the current FCC interpreting statutes in ways that expand the agency’s authority, as evidenced by the Commission’s decisions on net neutrality and digital discrimination. This order would go well beyond another legally dubious FCC ruling last year that expanded E-Rate to fund Wi-Fi on school buses—which, at least arguably, have more of a nexus with classrooms than “anywhere.”
Recently, in its ruling in Loper Bright, the Supreme Court struck down “Chevron deference,” the legal doctrine that had granted federal agencies latitude to interpret ambiguities in law. It’s hard to argue that, in 1996, a “classroom” meant anything other than a physical space within a school. This was decades before widespread adoption of videoconferencing software and the COVID-19 pandemic that normalized remote learning. Even under Chevron, it would have been a stretch for the agency to suggest that the emergence of virtual learning rendered a mid-1990s law “ambiguous” about whether a wireless hotspot that follows a student wherever she goes constitutes a “classroom.” Without Chevron, the FCC’s reading rests on even shakier legal ground.
Avoiding regulatory overreach is a worthy end in itself and reason enough for the agency to abandon this order. But setting aside the legality, it’s worth considering whether subsidizing hotspots through E-Rate is good policy.
E-Rate is among several FCC programs under the Universal Service Fund (USF), which is paid for by taxes on Americans’ phone bills. Over the years, as the FCC has ramped up efforts to subsidize rural broadband deployment, low-income cell phone plans, and other services.As a result, the tax has ballooned from around 4 percent in the late 1990s to nearly 35 percent today, leading Congress to examine alternate funding mechanisms.
At a time when lawmakers are considering potentially significant restructuring of USF and reforms to its various programs, expanding E-Rate’s mission to connect students and library patrons off-site could be fiscally irresponsible. Putting upward pressure on the program’s budget may lead to more USF tax increases, or at least frustrate efforts to rein in overall USF spending to help lower the tax.
Further, taxpayers have already committed tens of billions of dollars to various broadband programs in recent years to ensure every American gets connected. With most of those dollars yet to be spent, and little progress made, the FCC should not be asking taxpayers to expand the E-Rate program—one that has historically suffered from allegations of waste, fraud, and duplication.
Then there is the question of whether expanding E-Rate in the FCC’s proposed manner will truly serve the program’s intent of supporting education. According to the American Psychological Association, teenagers spend nearly five hours a day on social media. The FCC’s idea that students are going to use a loaned hotspot primarily for homework, as opposed to “doomscrolling” TikTok and YouTube, may evince a certain naivete about how an unsupervised child uses the internet.
It would be bad enough for taxpayers to subsidize frivolous, non-educational Internet use, but leading experts, from social psychologist Johnathan Haidt to the U.S. Surgeon General, increasingly warn that social media is significantly harming children’s mental health. While the FCC touts that its order has “safeguards” to ensure that connectivity will be used for educational purposes, its Acceptable Use Policy directivesamount to little more than the same check-the-box exercise that currently applies to E-Rate-funded connectivity at schools and libraries. The order also declined to impose any restrictions on how long a student can use a hotspot or credentialing mechanisms to ensure hotspots are used only by the intended user.
Under the 2000 Children’s Internet Protection Act, E-Rate funding is contingent on recipients having an “internet safety” policy that addresses obscene material like pornography and prevents unlawful activities like hacking. However, aside from rote certification exercises, there is little the FCC can do to police school networks under CIPA. And when it comes to social media, the FCC leaves it up to schools to decide. Will a critical mass of schools have the will or sophistication to curate the devices in a way that protects children from the harms of unsupervised Internet use?
Closing gaps in connectivity that affect student learning is a worthy goal, and all levels of government—from the Commerce Department and FCC to state broadband offices and city councils—are working toward it. But expanding programs and adding more spending, however laudable the goal, isn’t always wise. Given the uphill legal climb for the FCC’s proposed E-Rate expansion, and its potential to raise taxes, waste money, and harm children, the Commission should scrap the effort. In any event, the courts just might do so themselves.
