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

By Eva Dou Washington Post

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

But the FCC has run into a hitch: how to define the “internet” in the year 2024.

The internet has changed dramatically since the early 2000s, when the idea of internet 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.

As the internet has proliferated, the question of precisely where it begins and ends has become murkier. Now some mobile executives are arguing that an emerging 5G technology called “network slicing” should be considered to lie in the hazy realm beyond the internet’s borders, unconstrained by net neutrality.

The proposal has sparked controversy because these 5G “slices” are not just a small side show and may well be core to what the internet becomes in its next phase. Technologists are expecting network slices will 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. It’s unclear how the FCC will square that circle.

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 agency is still pondering the details, but 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 plans to reinstate net neutrality Thursday at its monthly open meeting, as 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 October 2023.

FCC commissioners have focused on the consumer benefits of internet oversight in their public comments ahead of the vote, even as they try to sort out the fine print of network slicing behind closed doors.

“It’s just common sense that we should have some meaningful oversight of this essential service,” FCC Chairwoman Jessica Rosenworcel told reporters last week. “The reality right now is that the FCC can gather data about long-distance voice outages, not broadband outages. There’s nothing modern about that.”

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.

“We often get lost in the weeds and throw around jargon like reclassify and Title II,” said Sen. Edward J. Markey (D-Mass.). “But net neutrality is much simpler than that … it’s about ensuring that monopoly or duopoly broadband providers cannot squash competition, squeeze consumers and squish the little guy.”

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 pay for premium service, not 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.”

The FCC is receiving calls from net neutrality supporters to close the “loophole” by specifying that broadband operators are not only prohibited from slowing down certain types of network traffic, but also from speeding them up.

“Allowing ISPs [internet service providers] to speed up applications undermines the essence of net neutrality: ISPs should not be allowed to play favorites, whether by speeding up favored apps or slowing down disfavored ones,” Scott Wiener, a Democratic member of the California state Senate, wrote to Rosenworcel in a letter on Tuesday.

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.