How to Strengthen the FCC’s Proposed Net Neutrality Protections by Closing Loopholes and Matching the 2015 Open Internet Order

The Federal Communications Commission is looking to restore net neutrality for all Americans. The FCC published its proposal, a so-called Notice of Proposed Rulemaking (NPRM), in October 2023. The comments period ended in mid-January. A vote is expected in late April.

When the FCC announced it would be restoring the net neutrality protections that the FCC eliminated in 2017, the agency said it wanted to restore the 2015 net neutrality protections.

I strongly support this goal, and the Notice of Proposed Rulemaking includes many of the protections included in the 2015 Open Internet Order.

But the Notice of Proposed Rulemaking misses some critical protections in the 2015 Order, creating potential loopholes for Internet Service Providers (ISPs) to exploit.

On March 13, I submitted a White Paper to the Commission with seven suggestions for how to strengthen the Open Internet Proposal.

They are:

·        Throttling: The proposed rules inadequately address the issue of ISPs manipulating internet traffic by speeding up applications or classes of applications. The 2024 protections need to explicitly prohibit both negative and positive discrimination among apps.

·        Reasonable Network Management: The NPRM misses a crucial part of the 2015 Order’s definition of “reasonable network management,” which opens a loophole that ISPs could exploit to circumvent net neutrality principles. Reasonable network management must be as application-agnostic as possible and technically justified.

·        Specialized Services/Non-BIAS Data Services: ISPs are seeking to bypass Open Internet protections under the guise of “specialized services,” particularly with 5G fast lanes. The FCC needs to prevent ISPs from exploiting this label to create fast lanes that are otherwise prohibited.

·        Transparency: The FCC's 2017 Repeal Order significantly weakened ISP transparency reporting. Restoring the 2015 transparency rules would help people choose the internet service plan that is best for them by restoring ISP reporting requirements on network performance, including during peak times and by geographic area.

·        Interconnection: The NPRM lacks the 2015 Order’s explicit prohibition against ISPs circumventing net neutrality where data enters their networks, often referred to as the point of interconnection. ISPs exploited this loophole in the past to degrade internet performance in order to force apps to pay the ISPs, impacting millions of Americans.

·        State Net Neutrality Laws: The FCC needs to preserve state net neutrality laws as they provide additional protections and enforcement and have not proven burdensome for ISPs. Federal net neutrality protections should set the minimum standard, allowing states to enforce stricter rules.

·        Zero-Rating: The FCC should set clear rules against ISPs using harmful zero-rating to distort competition or favor certain applications, drawing on California's net neutrality law as a model.

You can read the full White Paper here.


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