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With 5G, service providers can use “network slicing” to create a separate area of spectrum for selected apps that would allow them to work perfectly even if the rest of the network is busy.
The flurry of executive branch rulemaking pushed through under the deadline to avoid reversal in a future Congress feels like such a robust exertion of presidential power that the details often get fuzzy. All rules are not created equal, and some of them are missed opportunities rather than real protections for the public. A case in point is the Federal Communications Commission’s alleged restoration of net neutrality, which could actually create the thing that it’s supposed to prevent: tiered broadband speeds.
According to some experts, big telecom firms are now poised to create special circumstances for Big Tech applications that deliver their content at faster speeds. The telecoms lobbied the FCC heavily for this privilege and are already making plans to exploit it.
We once had net neutrality in the U.S., after it passed during the Obama administration in 2015. Donald Trump’s FCC chair Ajit Pai rolled back those regulations in 2018.
The telecom industry successfully delayed Democrats the opportunity to do anything about this by denying a fifth FCC commissioner from getting confirmed for 32 months. Gigi Sohn, the Biden administration’s first nominee for the commissioner seat that would give Democrats the majority, didn’t get a vote for two years and finally withdrew from consideration, after a $23 million lobbying campaign. The eventual appointee, Anna Gomez, was not considered as strong on consumer protection as Sohn, and didn’t make it onto the FCC until last September. That gave the agency a short window to pass net neutrality rules.
The rule, which was finalized last week, reclassifies broadband service under Title II of the Telecommunications Act, making it an essential service that will “ensure the internet is fast, open, and fair.” Under the new rule, providers are not allowed to block or throttle certain websites or applications, such as degrading the quality of streaming video.
Those prohibitions deal with slowing down content online. However, as explained in an article by Barbara van Schewick, director of Stanford Law School’s Center for Internet and Society, the new rules could open up the opportunity for telecom companies to speed up certain content, by creating “fast lanes.” Mobile internet service providers (ISPs) in particular could give better speeds and quality in 5G networks to certain applications or websites in exchange for an increased consumer price.
This opportunity would not be available for “home basic broadband,” FCC chair Jessica Rosenworcel said last week. But in 5G, ISPs can use “network slicing,” literally creating a separate area of spectrum for selected apps that would allow them to work perfectly even if the rest of the network is busy.
Big telecom firms are now poised to create special circumstances for Big Tech applications that deliver their content at faster speeds.
Today, that is primarily available for mobile phones, but as The Washington Post has reported, other devices using the internet could have this network slicing ability, like video game terminals, or various smart devices for the home. In addition, cable companies could soon gain the ability to use network slicing for their internet products. More and more of what we think of as the internet, in other words, could have the ability to use fast lanes, at odds with the principles of net neutrality.
The apps themselves would not be charged for getting better service on phones; “paid prioritization” would still be prohibited. But mobile ISPs like T-Mobile, AT&T, and Verizon could legally bundle apps that use lots of bandwidth, like streaming video or gaming, into a fast lane, and charge more to broadband customers for that service. “5G makes it really easy for companies to offer these kinds of slices,” van Schewick said in an interview.
ISPs could advertise that these fast lanes make apps like TikTok or YouTube, or games like Fortnite, work better. The ISPs could also sell day passes for enhanced services for videoconferencing, streaming, or gaming.
Amusingly, 5G was sold as a wonder technology that would make all apps and services super-fast, regardless of traffic on a network. Under that theory, there should be no need for fast or slow lanes. But a series of reports from the Swedish telecom firm Ericsson highlight the possibilities of “5G premium experiences,” estimating that 10 percent of users would access the faster slice for gaming.
If users do not pay the higher price, they would get served lower-quality versions of those services. Moreover, they would have to survive on a reduced slice of the network, and if the network is busy, their service would get clogged. According to Ericsson’s estimates, by 2031 cloud gaming slices for 10 percent of all users would take up 53 percent of total capacity, with only 47 percent left for regular broadband. “If you allow the ISPs to charge extra for the fast lane, then it creates an incentive to primarily put capacity toward fast lanes, and as a side effect, regular broadband gets worse,” van Schewick says. (She also laid this out in a slide deck for the FCC.)
American companies have been openly musing about these fast-lane concepts at industry conferences and in official communications. Last September, T-Mobile expanded its network slicing beta test for videoconferencing nationwide, asking developers to apply to become part of the program.
If ISPs want to attract the most users, they would be likely to choose the most popular apps from the biggest companies for the fast lane. The closest analogue to a fast lane that we’ve seen, so-called “zero rating” setups where certain apps were not charged against user data caps, typically were reserved for Big Tech applications or the ISP’s own products.
If incumbents have their apps load faster than rivals, that is likely to have a negative effect on competition, choice, and innovation. The Biden administration has paid serious attention to those concerns in other contexts.
But telecoms fought hard to get the rules to allow for network slicing. Backlash from several public-interest groups, startups, and members of Congress did not sway the FCC.
THE FCC ARGUES THAT THIS IS NOT A MAJOR ISSUE, insisting in press statements that it “will not allow ‘network slicing’ to be used as a get-out-of-jail free card for net neutrality violations.” The internet advocacy group Free Press has also dismissed the idea that the rules are weaker, arguing they are identical to the Obama-era framework.
It’s true that the no-throttling rule is identical to the 2015 order, stating that ISPs “shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device.” What’s missing is language confirming that speeding up apps or classes of apps would also be prohibited in the same manner.
The FCC takes a different approach there. It says that speeding up would be reviewed on a case-by-case basis to see if the practices are “unreasonably discriminatory,” and then whether they “impair or degrade” other competing apps.
This two-part, case-by-case test is what many advocates object to. (So, at one point, did Free Press, which sent a letter to the FCC last month urging that the agency clarify that speeding up would be prohibited.) It’s not entirely clear what fast lanes would be disallowed under that vague standard. It would also take years of time and effort on the part of the FCC to police those setups, giving apps in the fast lanes a significant advantage.
The FCC says that speeding up would be reviewed on a case-by-case basis to see if the practices are “unreasonably discriminatory.”
This is a pale substitute for bright-line rules, said van Schewick. “An ISP may not impair or degrade apps or classes of apps: That’s a simple rule. That is different from ‘Is it unreasonably discriminatory, and then prove this other stuff.’” She highlighted how advocates wanted a bright-line rule blocking zero rating in 2015, but the FCC put it under a general conduct standard, similar to the case-by-case basis. Mobile companies then used zero rating habitually to preference their own products and major apps.
It took two years for the FCC to agree that such plans violated their general conduct standard. By contrast, California’s net neutrality rule used a bright-line rule to ban zero rating, and the ISPs dropped their plans the same day it came into force.
“If there’s one thing we have seen over and over, ISPs do not violate clear prohibitions,” van Schewick said. “But if there is a gray area, absolutely they move into it. They exploit the fact that it’s hard to bring complaints.”
In their blog post, Free Press’s Matt Wood concedes that “it would be a clearer statement for the FCC to determine that ‘speeding up’ is always problematic instead of leaving every such determination to a case-by-case inquiry.” Nevertheless, Wood argues, the FCC has clear power under Title II to enforce those cases, which he says they would have to do under bright-line rules as well.
Ultimately, the final text of the order will be critical to determine whether fast lanes are truly possible or not. Van Schewick wants the “unreasonably discriminatory” language removed, and a clear statement that ISPs cannot either slow down or speed up apps.
In last week’s hearing, FCC commissioner Geoffrey Starks, a Democrat, said that he “appreciate[d] working with the chairwoman’s office” to make sure that there are no loopholes in the no-throttling language, a clear reference to the controversy over fast lanes. The final text is expected to be released either today or Tuesday.
MANY AGENCIES HAVE SHOWN CONCERN with the possibility of the judiciary throwing out their regulations in court, though net neutrality survived every legal challenge the last time it was enacted. A “middle ground” order could be a function of getting some version of a rule past the legal gauntlet.
But even this version of net neutrality will likely face a lawsuit. Brendan Carr, a Republican commissioner who voted against the rule, said he did so because it violated the so-called “major questions doctrine,” which the Court has used to invalidate rules that they subjectively decide are too big to go through executive branch agencies.
Van Schewick makes clear that she doesn’t think network slicing should be banned; it has many uses for necessary or emergency services, or cases where isolating traffic would be beneficial—she cites internet coverage in a crowded sports arena. The FCC’s order already exempts these “enterprise” services.
“Not allowing ISPs to pick winners and losers online, that’s the core net neutrality principle,” van Schewick said. “Allowing ISPs to create a fast lane, that’s picking winners and losers. We know that this threat is right around the corner.”
The lesson here, as always, is that the details matter. The new net neutrality order could work out fine, but it could also see much of what people use as the internet exempted from its regulatory regime. Before celebrating another in a litany of new rules pushed out by the Biden administration this month, read the fine print.
