Biden’s New Net Neutrality Rules Don’t Prevent Anti-Competitive “Fast Lanes”

One of the key reasons the net neutrality fight even became a thing was widespread concern that big ISPs would abuse their power to behave anti-competitively, picking winners and losers across the internet ecosystem, and nickel-and-diming consumers in a variety of obnoxiously creative ways.

Verizon, for example, charges you extra if you want 4K video to work properly. T-Mobile spent years letting some key partners and services (namely large companies) bypass usage caps and network throttling restrictions. It’s not complicated: these kinds of gatekeeper decisions give historically unpopular telecoms power they shouldn’t have under the principle of an open, competitive internet.

We’ve noted how the Biden FCC will vote on April 25 to restore popular net neutrality rules stripped away during the Trump administration. Though we’ve also indicated there are some concerns among experts that the rules may wind up being weaker than the original 2015 edition.

Stanford law professor and net neutrality expert Barbara van Schewick has written a blog post noting that while the Rosenworcel FCC has shored up some concerns on this front (the FCC’s rules won’t “pre-empt” tougher California rules, for example), there’s still room for concern. Most notably surrounding the new rules’ treatment of so-called “fast lanes”:

“There’s a huge problem: the proposed rules make it possible for mobile ISPs to start picking applications and putting them in a fast lane – where they’ll perform better generally and much better if the network gets congested.”

Wireless carriers have made it clear that they plan to use “network slicing” to create 5G fast lanes for certain apps such as video conferencing, games, and video. The FCC’s new net neutrality rules allows such behavior, providing the service or app isn’t charged for them. So they can’t, say, extort a company into paying more if it wants its service or app to see baseline performance, which is good.

But the rules still allow ISPs to charge consumers all manner of fees if they want the most popular apps and services to work their best. And van Schewick notes, the rules still allow big ISPs to determine which companies and services get priority. That inherently creates a system whereby less popular and successful apps and services (as well as academia-related services and nonprofits) are relegated to second-class network status, putting them at competitive and performance disadvantage:

“And as we’ve seen in the past, programs like this favor the most popular apps, even when the program is supposedly open to all apps in a category and no apps are paying the ISP. So the biggest apps will end up in all the fast lanes, while most others would be left out. The ones left out would likely include messaging apps like Signal, local news sites, decentralized Fediverse apps like Mastodon and PeerTube, niche video sites like Dropout, indie music sites like Bandcamp, and the millions of other sites and apps in the long tail.”

van Schewick provides some potential illustrative examples, several of which already exist in various forms:

So again, the problem is that big and influential services or games like Disney or ESPN will see network priority during periods of 5G wireless network congestion. While smaller competitors, nonprofits, and others get relegated into a sea of “best effort” network scenarios.

van Schewick notes the original Obama-era 2014 proposal restricted this stuff. As did, in her legal opinion, the 2015 final rules. Even the half-assed proposals floated by Republicans at various points prohibited ISPs from speeding up different apps and services arbitrarily. But she notes these new 2024 rules include an obvious silence on this front that seems clearly lobbied for by industry:

“The no-throttling rule that the FCC proposed in October explicitly prohibited ISPs from slowing down apps and classes of apps; it was silent on whether the rule also applies to speeding up. “

The original Rosenworcel FCC proposal unveiled last October didn’t include those restrictions, so public interest groups, startups, and members of Congress all reached out asking why. April came, and the FCC’s draft net neutrality order still didn’t restrict the speeding up of specific apps and services, outside to say it would address so-called “fast lane” issues on a “case by case basis.”

Opponents of net neutrality like to pretend that the rules are a “solution in search of a problem,” but industry has made it extremely clear that this kind of fractured internet, which consumers face ever-escalating nickel-and-diming, and the most popular apps and services get network priority over everybody else, is precisely the sort of future they have in mind.

Like any publicly-traded company, telecoms are obligated to shareholders to boost quarterly revenues at any cost. In telecom this routinely comes in the form of direct price hikes, cuts to service quality and broadband deployment, or substandard customer service. But it also increasingly comes in the forms of obnoxious monetization efforts that create entirely new obstacles you’re then charged extra to overcome; efforts you can’t avoid because you either have no competing broadband alternatives to flee too (market failure) or all of the competitors on offer are engaging in the same bad behavior (regulatory capture).

FCC bureaucrats have generally prioritized “not stifling innovation” (as if telecom giants have meaningfully innovated any time in the last quarter century) over protecting markets and consumers, and there’s evidence that kind of thinking is once again at play. I’d suspect, quite intentionally, none of this will be addressed by the time the final net neutrality rules are voted on at the FCC’s April 25th meeting.