Initial Analysis of the FCC’s 2024 Open Internet Order

On Tuesday, the FCC released the final text of the 2024 Open Internet Order, which the commission voted to adopt on April 25.

Here’s my statement and initial analysis of key points:

“The FCC’s restoration of authority over the internet service providers (ISPs) we pay to get online and its restoration of federal net neutrality protections that ensure an open internet are big wins for the American people. The new order has brightline rules that prevent blocking, throttling, and paid prioritization, and it ensures that ISPs can’t use new tech capabilities to create unfair fast lanes that favor particular apps or kinds of apps. This is a win for competition, innovation, and free speech.”

Analysis:

No Throttling Rule:

As part of the FCC proceeding, public interest groups, academics, and members of Congress worked to ensure that the new rules provided strong protections from misguided usage of new technology by ISPs, such as ISP-controlled 5G fast lanes for select apps or categories of apps that AT&T, T-Mobile and Verizon have been testing.

The final Order ensures that ISPs cannot evade the no throttling rule with these kinds of fast lanes. The 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. This violates a core net neutrality principle – that ISPs should not be allowed to pick winners and losers online.

Allowing ISPs to select which apps or categories go in a fast lane distorts competition and cements the market power of dominant apps. As we’ve seen in the past, the biggest apps will end up in all the fast lanes, while most others would be left out: startups, small businesses, sites serving marginalized communities or niche audiences, millions of other apps & sites in the long tail. 

The final Order says clearly, “We clarify that a BIAS 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.” (para. 499)

That means an ISP can’t provide preferential treatment to select apps or categories of apps such as providing more bandwidth, reducing delay, or guaranteeing quality of service. 

That’s important because good performance is vital to almost everything on the internet, and ISPs shouldn’t be the ones deciding which apps get to work well and which do not.

This clarification replaced a new vague, case-by-case standard for speeding up in the draft order. That standard would have inevitably led to protracted, drawn out fights at the FCC over what kinds of 5G fast lanes would have been okay and would have made it hard for startups and small businesses to bring complaints. There was no way to predict which kinds of fast lanes the FCC might ultimately find to violate the no-throttling rule. 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. It restores the brightline nature of the no-throttling rule and clearly prohibits ISPs from limiting fast lanes to apps or categories of apps they select. Everyone knows what the rules are. As we have seen in the past, ISPs don’t violate brightline rules, so this keeps the cost of regulation low. 

Network Slicing:

A new 5G networking technology called “network slicing” (as well as some advancements in cable) makes it easy for ISPs to create special 5G fast lanes that treat internet traffic in the fast lane better than other traffic on the network. 

Mobile ISPs want to use that technology to create 5G fast lanes for certain applications such as online video conferencing, online video, and online gaming. In a coordinated push, mobile ISPs and their trade association had asked the FCC to create a blanket exemption for 5G fast lanes by labeling them “specialized services” to which the Open Internet rules don’t apply.

That would have allowed mobile ISPs to do an end run around the Open Internet rules by, e.g., charging gaming providers for a fast lane to the ISPs’ customers (circumventing the ban on paid prioritization) or by creating a low-delay lane only for video conferencing apps (evading the no-throttling rule). 

The FCC rightly declined to do so. Despite the fancy new jargon, 5G network slices are nothing new; they are just another way to give some apps special treatment, and the FCC’s net neutrality regime is nuanced enough to handle them.

ISPs remain largely free to offer special network slices to enterprise customers like farmers using remote-controlled tractors, a crowded stadium’s multi-camera video system, or autonomous car makers using mobile services for telemetry.

The Order makes clear that ISPs can’t use the specialized services label to create fast lanes for apps such as video conferencing that can function on the normal internet. That prevents ISPs from circumventing net neutrality. At the same time, it allows ISPs to create specialized services for applications such as remote surgery whose stringent requirements for reliability and delay cannot be met over the Open Internet.

Taken together, these protections will help ensure that the vital internet access we all rely on for work, school and entertainment remains open, while giving ISPs the ability to innovate with technologies such as 5G network slicing where appropriate.

Barbara van Schewick is a leading expert on net neutrality, a professor of Law and, by courtesy, Electrical Engineering at Stanford University, and the director of the Stanford Law School Center for Internet and Society. She is the author of Internet Architecture and Innovation (MIT Press 2010). Parts of this text draw on her earlier writing on net neutrality.