FCC explicitly prohibits fast lanes, closing possible net neutrality loophole

The Federal Communications Commission clarified its net neutrality rules to prohibit more kinds of fast lanes.

While the FCC voted to restore net neutrality rules on April 25, it didn’t release the final text of the order until yesterday. The final text has some changes compared to the draft version released a few weeks before the vote.

Both the draft and final rules ban paid prioritization, or fast lanes that application providers have to pay Internet service providers for. But some net neutrality proponents raised concerns about the draft text because it would have let ISPs speed up certain types of applications as long as the application providers don’t have to pay for special treatment.

The advocates wanted the FCC to clarify its no-throttling rule to explicitly prohibit ISPs from speeding up applications instead of only forbidding the slowing of applications down. Without such a provision, they argued that ISPs could charge consumers more for plans that speed up specific types of content.

Advocates warned that mobile carriers could use the 5G technology called “network slicing” to create fast lanes for categories of apps, like online gaming, and charge consumers more for plans that speed up those apps. This isn’t just theoretical: Ericsson, a telecommunications vendor that sells equipment to the major carriers, has said the carriers could get more money from gamers by charging “up to $10.99 more for a guaranteed gaming experience on top of their 5G monthly subscription.”

No speeding up or slowing down

Net neutrality proponents argued that these separate lanes for different kinds of traffic would degrade performance of traffic that isn’t favored. The final FCC order released yesterday addresses that complaint.

“We clarify that a BIAS [Broadband Internet Access Service] provider’s decision to speed up ‘on the basis of Internet content, applications, or services’ would ‘impair or degrade’ other content, applications, or services which are not given the same treatment,” the FCC’s final order said.

The “impair or degrade” clarification means that speeding up is banned because the no-throttling rule says that ISPs “shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service.”

Net neutrality advocates praised the change. The final rule “prohibits ‘fast lanes’ and other favorable treatment for particular applications or content even when the edge provider isn’t required to pay for it… For example, mobile carriers will not be able to use network slicing to offer broadband customers a guaranteed quality of service for video conferencing from some companies but not others,” said Michael Calabrese, director of the Open Technology Institute’s Wireless Future Project.

Stanford Law professor Barbara van Schewick said the FCC’s “final order makes clear that the no-throttling rule prohibits ISPs from speeding up as well as slowing down apps or categories of apps. That’s because treating some favored applications better than others has the same effect as slowing down disfavored apps—it makes it harder for the disfavored apps to compete.”

FCC ditched case-by-case approach

Under the draft version of the rules, the FCC would have used a case-by-case approach to determine whether specific implementations of what it called “positive discrimination” would harm consumers. But the updated language in the final order “clearly prohibits ISPs from limiting fast lanes to apps or categories of apps they select,” leaving no question as to whether the practice is prohibited, van Schewick wrote in a statement provided to Ars.

Under the original plan, “there was no way to predict which kinds of fast lanes the FCC might ultimately find to violate the no-throttling rule,” she wrote. “This would have given ISPs cover to flood the market with various fast-lane offerings, arguing that their version does not violate the no-throttling rule and daring the FCC to enforce its rule. The final order prevents this from happening.”

In one FCC filing, AT&T promoted network slicing as a way “to better meet the needs of particular business applications and consumer preferences than they could over a best-efforts network that generally treats all traffic the same.” AT&T last week started charging mobile customers an extra $7 per month for faster wireless data speeds, but this would likely comply with net neutrality rules because the extra speed applies to all broadband traffic rather than just certain types of online applications.

Any plan to put certain apps into a fast lane will presumably be on hold for as long as the current net neutrality rules are enforced. Broadband providers plan to sue the FCC in an effort to block the regulation. And because Congress hasn’t enacted a net neutrality law, it’s always possible that a future Republican FCC majority would reverse the current Democratic majority’s decision.