FCC reinstates net neutrality, but it’s not as easy as it once was

The Federal Communications Commission voted 3-2 Thursday to put the internet back under “net neutrality” regulation, reprising Obama-era rules that prohibit service providers from discriminating against certain websites by throttling or blocking them.

But there’s a key detail that remains to be worked out: how to define the internet in 2024.

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As a growing proportion of the modern physical world is intertwined with the internet, the question of precisely where it begins and ends has become murkier. FCC officials stopped short of defining the boundaries at a news conference following the vote, as they continue to study the issue. They affirmed that broadband providers will be prohibited from speeding up or slowing down content on the consumer internet - but will be allowed to run “fast lanes” for unspecified specialized services.

For “your home basic broadband,” FCC Chairwoman Jessica Rosenworcel said, “it is vitally important to us that that service is available without fast lanes and slow lanes.”

Adam Copeland, deputy chief of the FCC’s Wireline Competition Bureau, said Thursday that the FCC had amended the language of the guidance to make clear that speeding up content selectively on the consumer internet would be a violation of net neutrality, in addition to slowing down content - a clarification that consumer watchdog groups were calling for. Copeland said certain types of enterprise applications would be exempt from these rules.

Industry groups have been trying to figure out if this gives them room to sell new premium tiers of service, while consumer advocates warn that it might be used as a loophole.

At issue is an emerging 5G technology called “network slicing,” which some mobile executive argue lies in the hazy realm beyond the internet’s borders, unconstrained by net neutrality.

The proposal has sparked controversy because these 5G “slices” may well be core to what the internet becomes in its next phase.

The internet has changed dramatically since the early 2000s, when the idea of service providers having to treat all data equally first became popular. Two major changes since then include the shift from personal computers to mobile devices and the growing number of items connected to the internet, from robot vacuum cleaners to entire factories.

Technologists are now expecting “network slicing” to run next-generation killer apps, from autonomous vehicles to self-regulating factories to remote surgeries via robot arms to ultrarealistic video games, all of which will rely on the slices’ ability to operate as “fast lanes” with high speeds and low lag times.

“It is the technology that will help unlock the full potential of telemedicine, autonomous vehicles, automated manufacturing and virtual reality,” AT&T spokesman Alex Byers said.

But is it internet? What is internet?

The FCC came up with a list of internet-connected applications exempt from net neutrality back in 2015, considering them not really the internet, even though they were hooked to it. These included heart monitors, energy consumption sensors and automobile control systems. The FCC said last year it would review the list of exemptions, asking the public, “Are these still appropriate examples of data services that are outside the scope of broadband Internet access service?”

Since then, mobile operators have pushed the FCC hard for the network slicing exemption. T-Mobile, in particular, sent a 66-page comment to the FCC arguing that network slicing did not meet the definition of “broadband internet access service.”

This has drawn a backlash from consumer advocates, who warn that it may be a loophole large enough to exempt a significant chunk of the internet from regulation, to the detriment of the rest of the internet.

“When you make those slices, what ends up happening as a consequence is that the general internet gets slower,” said Chao Jun Liu, a legislative associate at the Electronic Frontier Foundation. “That is a clear violation of net neutrality.”

It’s a complicated question to untangle. Indeed, the structure of 5G - designed to run multiple separated networks or slices at different speeds and latencies - appears fundamentally to contradict the traditional concept of net neutrality of all data flowing at the same speed through a pipe, with nothing allowed to jump the queue or be pushed to the back.

Not that long ago, the obscurities of how cell towers worked wouldn’t have had much to do with regulation of broadband internet, which ran through fiber-optic cables. But the two realms are now very much intertwined, with both technologies under the purview of net neutrality. 5G powers not only smartphones, but also a good chunk of home internet connections in the United States through “fixed wireless” services.

The FCC has been seeking to find a middle ground where consumers’ interests are protected, but companies still feel able to innovate. FCC spokesman Jonathan Uriarte said “the FCC will not allow ‘network slicing’ to be used as a get-out-of-jail free card for net neutrality violations.”

The FCC restoration of net neutrality at its monthly open meeting is part of an expansion of FCC authority called Title II, which grants the agency the ability to investigate internet outages and treats internet service providers as utilities.

The FCC first adopted net neutrality in 2015 after more than a decade of debate over the issue. It was repealed in 2018 under the Trump administration, which considered the rules too restrictive on businesses, discouraging investment in network upgrades. The Biden administration has always signaled it intended to restore them, but did not have a Democratic majority on the FCC until this past October.

In the 2023 American Customer Satisfaction Index, a survey of tens of thousands of consumers, internet service providers ranked second-lowest in customer satisfaction among industries, with only gas stations ranking lower.

Following Thursday’s vote, the rules will come into force two months after being posted to the Federal Register. FCC Commissioner Brendan Carr, one of the dissenting votes and a longtime critic of net neutrality, told reporters that he believed the rules would be overturned in court due to their being a significant expansion of the FCC’s powers not authorized by Congress, a principle called the “major questions doctrine.”

Consumer activists began mobilizing around the network slicing issue after noticing that companies such as AT&T and Verizon were already mentioning consumer-facing technologies like video games in their marketing materials about the next-generation technology. AT&T is arguing that its deployment of faster slices would be consistent with net neutrality, as app makers would decide if they want to be included in a slice (without having to pay a fee), and consumers could decide if they pay for premium service, which the company believes would not be AT&T picking winners and losers.

“We will implement this technology in a manner that is controlled by end users, creates more choice and is consistent with open internet principles,” said Byers, the AT&T spokesman. “App-makers, not us, will have control over whether their app uses a particular slice.”

Some net-neutrality proponents say such a solution would not suffice. Barbara van Schewick, a law professor at Stanford University, said that the creation of these fast lanes would still slow down the rest of the internet due to fixed bandwidth.

“It’s not as if you’re just getting something extra,” she said. “We’re using some capacity that would have otherwise been used for the internet.”

Industry is arguing in return that broadly banning an emerging functionality of 5G would hinder innovation. The CTIA, a lobbying group for the U.S. wireless industry, warned of a chilling effect it termed, “Mother May I?”

In addition to the advent of network slicing, telecom industry executives have also been highlighting another change since the early days of the net neutrality debate: the rise of Big Tech internet giants as a second layer of gatekeepers that can and do discriminate against certain types of content on the internet.

Social media companies such as X have been known to throttle traffic to rivals’ websites, behavior that would be a violation of net neutrality if done by internet service providers. John Strand, a telecom industry analyst, said Big Tech internet giants have consistently funded pro-net neutrality activism, in the interest of keeping internet service providers as “dumb pipes” and keeping the power to curate what consumers see on the web for themselves.

“Policymakers should be focusing on where there really are challenges to net neutrality. It’s not with broadband providers, it’s with Big Tech,” said Jonathan Spalter, president of USTelecom, a lobbying group for broadband companies.

That battle falls outside the purview of the FCC. Other agencies such as the Federal Trade Commission and Justice Department have been pursuing antitrust cases against companies such as Google and Amazon for favoritism toward their own services over third-party ones.

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