FCC Nixes Internet Fast Lanes, Closing Loophole That Worried Experts

The Federal Communications Commission (FCC) has reinstated net neutrality, closing a loophole along the way that worried some experts....
FCC Nixes Internet Fast Lanes, Closing Loophole That Worried Experts
Written by Matt Milano
  • The Federal Communications Commission (FCC) has reinstated net neutrality, closing a loophole along the way that worried some experts.

    The FCC voted to restore net neutrality in late April, leveling the playing field for large and small internet companies alike. The agency released its final ruling yesterday, containing some changes that closed a potential loophole by nixing so-called “fast lanes.”

    The Issue

    At the heart of the issue was the possibility that some ISPs could create internet fast lanes for certain types of traffic. Although the net neutrality rules prohibited paid fast lanes, a loophole existed for fast lanes as long as ISPs did not charge the companies providing the content, services, or applications to customers.

    Stanford Law Professor Barbara van Schewick warned the FCC before the final vote that ISPs could abuse fast lanes, essentially bypassing net neutrality by coming at the issue from a different direction: don’t slow undesirable traffic down, simply speed up desirable traffic.

    Professor van Schewick outlined the issue with such an approach:

    Net neutrality means that we, the people who use the internet, get to decide what we do online, without interference from ISPs. ISPs do not get to interfere with our choices by blocking, speeding up or slowing down apps or kinds of apps. Apps compete on a level playing field, and users, not ISPs, determine which apps are successful.

    Differences in performance, including relative differences in performance, matter. Even small differences in load times affect how long people stay on a site, how much they pay, and whether they’ll come back. Those differences also affect how high up sites show in search results.

    Thus, letting ISPs choose which apps get to be in a fast lane lets them, not users, pick winners and losers online.

    The FCC’s Final Ruling

    In its final ruling, the FCC cited Professor van Schewick’s letter before making the following clarification:

    Our interpretation of “throttling” encompasses a wide variety of conduct that could impair or degrade an end user’s ability to access content of their choosing. 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.

    Essentially, the FCC is taking the approach that any prioritization of certain traffic will ultimately lead to ISPs playing favorites, giving them the ability to pick winners and losers and put smaller companies at an unfair advantage.

    Chairwoman Rosenworcel’s Statement

    “I think in a modern digital economy we should have a national net neutrality policy and make clear the Nation’s expert on communications has the ability to act when it comes to broadband,” said Chairwoman Jessica Rosenworcel. “This is good for consumers, good for public safety, and good for national security. And that is why we are taking this action today under Title II of the Communications Act.”

    Chairwoman Rosenworcel emphasized the widespread support for net neutrality that consumers expressed to the agency.

    “Let’s start with consumers,” she continued.”They spoke out in droves when this agency repealed net neutrality. They jammed our in-boxes, overwhelmed our online comment system, and clogged our phone lines. They clamored to get net neutrality back. In the intervening years, they have not stopped. Thousands of consumers write us month after month seeking to have this agency help them navigate issues with their broadband service. Yet, as a result of the last FCC throwing these policies out and backing away from broadband, we can only take action when they have issues with their long distance voice service. There is nothing modern about that.

    Chairwoman Rosenworcel then addressed the fast lane issue directly.

    “Consumers have made clear to us they do not want their broadband provider cutting sweetheart deals, with fast lanes for some services and slow lanes for others,” she said. “They do not want their providers engaging in blocking, throttling, and paid prioritization. And if they have problems they expect the Nation’s expert authority on communications to be able to respond. Because we put national net neutrality rules back on the books, we fix that today.”

    A Free and Open Internet

    The reinstatement of net neutrality helps ensure a level playing field for companies of all sizes and prevents ISPs from acting as gatekeepers that decide what companies succeed or fail based on the quality of internet traffic they receive.

    Essentially, the reinstatement of net neutrality helps codify the principles of a free and open internet that was very much a critical component in the minds of its founders.

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