APRIL 29, 2024 (prospect.org)<\/p>\n\n\n\n
![\"Dayen-Net](\"https:\/\/prospect.org\/downloads\/21139\/download\/Dayen-Net%20neutrality%20042924.jpg?cb=0462f731709707fd138eccf03c379f60\")
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NICOLAS ECONOMOU\/NURPHOTO VIA AP<\/p>\n\n\n\n
With 5G, service providers can use \u201cnetwork slicing\u201d 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.<\/p>\n\n\n\n
The flurry of executive branch rulemaking pushed through under the deadline to avoid reversal in a future Congress<\/a> 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\u2019s alleged restoration of net neutrality<\/a>, which could actually create the thing that it\u2019s supposed to prevent: tiered broadband speeds.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n We once had net neutrality in the U.S., after it passed during the Obama administration<\/a> in 2015. Donald Trump\u2019s FCC chair Ajit Pai rolled back those regulations in 2018.<\/p>\n\n\n\n More from David Dayen<\/em><\/a><\/strong><\/p>\n\n\n\n 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\u2019s first nominee for the commissioner seat that would give Democrats the majority, didn\u2019t get a vote for two years and finally withdrew from consideration<\/a>, after a $23 million lobbying campaign. The eventual appointee, Anna Gomez, was not considered<\/a> as strong on consumer protection as Sohn, and didn\u2019t make it onto the FCC until last September<\/a>. That gave the agency a short window to pass net neutrality rules.<\/p>\n\n\n\n The rule, which was finalized last week<\/a>, reclassifies broadband service under Title II of the Telecommunications Act, making it an essential service that will \u201censure the internet is fast, open, and fair.\u201d Under the new rule, providers are not allowed to block or throttle certain websites or applications, such as degrading the quality of streaming video.<\/p>\n\n\n\n Those prohibitions deal with slowing down content online. However, as explained in an article<\/a> by Barbara van Schewick, director of Stanford Law School\u2019s Center for Internet and Society, the new rules could open up the opportunity for telecom companies to speed up<\/em> certain content, by creating \u201cfast lanes.\u201d 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.<\/p>\n\n\n\n This opportunity would not be available for \u201chome basic broadband,\u201d FCC chair Jessica Rosenworcel said last week. But in 5G, ISPs can use \u201cnetwork slicing,\u201d 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.<\/p>\n\n\n\n Big telecom firms are now poised to create special circumstances for Big Tech applications that deliver their content at faster speeds.<\/p>\n<\/blockquote>\n\n\n\n Today, that is primarily available for mobile phones, but as The Washington Post <\/em><\/a>has <\/a>reported<\/a>, 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.<\/p>\n\n\n\n The apps themselves would not be charged for getting better service on phones; \u201cpaid prioritization\u201d 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. \u201c5G makes it really easy for companies to offer these kinds of slices,\u201d van Schewick said in an interview.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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<\/a> of reports<\/a> from the Swedish telecom firm Ericsson highlight the possibilities of \u201c5G premium experiences,\u201d estimating that 10 percent of users would access the faster slice for gaming.<\/p>\n\n\n\n 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\u2019s estimates<\/a>, 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. \u201cIf 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,\u201d van Schewick says. (She also laid this out<\/a> in a slide deck for the FCC.)<\/p>\n\n\n\n American companies have been openly<\/a> musing<\/a> about these fast-lane concepts at industry conferences and in official communications<\/a>. Last September, T-Mobile expanded<\/a> its network slicing beta test for videoconferencing nationwide, asking developers to apply<\/a> to become part of the program.<\/p>\n\n\n\n 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\u2019ve seen, so-called \u201czero rating\u201d setups where certain apps were not charged against user data caps, typically were reserved<\/a> for Big Tech applications or the ISP\u2019s own products.<\/p>\n\n\n\n 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<\/a> to those concerns in other contexts.<\/p>\n\n\n\n But telecoms fought hard to get the rules to allow for network slicing<\/a>. Backlash from several public-interest groups<\/a>, startups<\/a>, and members of Congress<\/a> did not sway the FCC.<\/p>\n\n\n\n THE FCC ARGUES THAT THIS IS NOT A MAJOR ISSUE<\/strong>, insisting in press statements that it \u201cwill not allow \u2018network slicing\u2019 to be used as a get-out-of-jail free card for net neutrality violations.\u201d The internet advocacy group Free Press<\/a> has also dismissed the idea that the rules are weaker, arguing they are identical to the Obama-era framework.<\/p>\n\n\n\n It\u2019s true that the no-throttling rule is identical to the 2015 order, stating that ISPs \u201cshall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device.\u201d What\u2019s missing is language confirming that speeding up apps or classes of apps would also be prohibited in the same manner.<\/p>\n\n\n\n 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 \u201cunreasonably discriminatory,\u201d and then whether they \u201cimpair or degrade\u201d other competing apps.<\/p>\n\n\n\n This two-part, case-by-case test is what many advocates object to. (So, at one point, did Free Press, which sent a letter<\/a> to the FCC last month urging that the agency clarify that speeding up would be prohibited.) It\u2019s 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.<\/p>\n\n\n\n The FCC says that speeding up would be reviewed on a case-by-case basis to see if the practices are \u201cunreasonably discriminatory.\u201d<\/p>\n<\/blockquote>\n\n\n\n This is a pale substitute for bright-line rules, said van Schewick. \u201cAn ISP may not impair or degrade apps or classes of apps: That\u2019s a simple rule. That is different from \u2018Is it unreasonably discriminatory, and then prove this other stuff.\u2019\u201d 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.<\/p>\n\n\n\n It took two years for the FCC to agree that such plans violated their general conduct standard. By contrast, California\u2019s 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.<\/p>\n\n\n\n \u201cIf there\u2019s one thing we have seen over and over, ISPs do not violate clear prohibitions,\u201d van Schewick said. \u201cBut if there is a gray area, absolutely they move into it. They exploit the fact that it\u2019s hard to bring complaints.\u201d<\/p>\n\n\n\n In their blog post<\/a>, Free Press\u2019s Matt Wood concedes that \u201cit would be a clearer statement for the FCC to determine that \u2018speeding up\u2019 is always<\/em> problematic instead of leaving every such determination to a case-by-case inquiry.\u201d 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.<\/p>\n\n\n\n Ultimately, the final text of the order will be critical to determine whether fast lanes are truly possible or not. Van Schewick wants the \u201cunreasonably discriminatory\u201d language removed, and a clear statement that ISPs cannot either slow down or speed up apps.<\/p>\n\n\n\n In last week\u2019s hearing, FCC commissioner Geoffrey Starks, a Democrat, said<\/a> that he \u201cappreciate[d] working with the chairwoman\u2019s office\u201d 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.<\/p>\n\n\n\n MANY AGENCIES HAVE SHOWN CONCERN<\/strong> 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 \u201cmiddle ground\u201d order could be a function of getting some version of a rule past the legal gauntlet.<\/p>\n\n\n\n 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 \u201cmajor questions doctrine,\u201d which the Court has used to invalidate rules that they subjectively decide are too big to go through executive branch agencies.<\/p>\n\n\n\n Van Schewick makes clear that she doesn\u2019t think network slicing should be banned; it has many uses for necessary or emergency services, or cases where isolating traffic would be beneficial\u2014she cites internet coverage in a crowded sports arena. The FCC\u2019s order already exempts these \u201centerprise\u201d services.<\/p>\n\n\n\n \u201cNot allowing ISPs to pick winners and losers online, that\u2019s the core net neutrality principle,\u201d van Schewick said. \u201cAllowing ISPs to create a fast lane, that\u2019s picking winners and losers. We know that this threat is right around the corner.\u201d<\/p>\n\n\n\n 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.<\/p>\n\n\n\n DAVID DAYEN<\/a><\/p>\n\n\n\n David Dayen is the Prospect\u2019s executive editor. His work has appeared in The Intercept, The New Republic, HuffPost, The Washington Post, the Los Angeles Times, and more. His most recent book is \u2018Monopolized: Life in the Age of Corporate Power.\u2019<\/p>\n","protected":false},"excerpt":{"rendered":" Some advocates are concerned that a restoration of open-internet rules could allow some internet service providers to create \u2018fast lanes\u2019 for certain applications. BY DAVID DAYEN APRIL 29, 2024 (prospect.org) NICOLAS ECONOMOU\/NURPHOTO VIA AP With 5G, service providers can use \u201cnetwork slicing\u201d to create a separate area of spectrum for selected… Continue reading \n
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