Net Neutrality Order Makes Changes on 5G Slicing and Throttling Provisions

The FCC gave net neutrality supporters some of what they were looking for on 5G network slicing, one of the most contested issues before commissioners, providing further clarity (see 2404190038), a comparison of the order and a draft shows. The FCC posted the order late Tuesday. The commission approved it 3-2 at a contentious meeting last month.

Commissioner Nathan Simington said little during the April meeting but released a written dissent of more than 3,300 words with the order. In it he cast large edge providers as “the real villains of the free and open internet.”

ISPs, unlike net neutrality advocates, must live in the real world, Simington said. “The internet is a limited capacity network, and performance characteristics like bandwidth, latency, and jitter are scarce resources that need to be allocated, ideally in a way that promotes competition and maximizes value to consumers,” he said: “This is not an abstract point. High latency or jitter means not just choppy video calls and lagging video games but also unreliable control of physical systems like drones, cars, and industrial machinery.”

On 5G slicing, the FCC's clarifying language goes beyond the draft's content; however, a lot of questions remain. “We will be watchful of consumer retail offerings, and will evaluate if necessary whether they actually require isolated capacity for a specific functionality or level of quality of service that cannot be met over the open Internet, but we will presume that application-level enterprise offerings do not evade our rules,” the final order says. Slicing is a technology that creates multiple virtual networks on top of a shared network, which is possible on 5G stand-alone networks.

The order includes examples that also were in the draft. Connectivity for videoconferencing would likely “evade the protections we establish for [broadband internet access service] if the video-conferencing provider is paying the BIAS provider for prioritized delivery,” the order said: But remote surgery would get different treatment given its “stringent requirements for reliability” and lack of latency that “cannot be met over the Open Internet.” CTIA had asked that examples not in the 2015 order be stricken from the new rules (see 2404170032).

On throttling, a closely related issue, the FCC added a clarification relative to the draft, saying, "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." Commissioner Geoffrey Starks mentioned that addition during the meeting (see 2404250004).

The order cites recent advocacy on slicing rules from Barbara van Schewick, director of Stanford University’s Center for Internet and Society and others. In addition, it addresses industry advocacy. For example, CTIA is mentioned 221 times.

5G network slices are “nothing new,” van Schewick wrote in an email. “They are just another way to give some apps special treatment, and the FCC’s net neutrality regime is nuanced enough to handle them,” she said: “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 carmakers using mobile services for telemetry.”

“The commission has made it clear that network slicing will be evaluated under its existing rules -- the prohibitions on paid prioritization throttling, and the general conduct rule of course all might be relevant,” Public Knowledge Legal Director John Bergmayer said Wednesday.

The order “clarifies that the bright line rule against throttling also prohibits ‘fast lanes’ and other favorable treatment for particular applications or content even when the edge provider isn’t required to pay for it,” emailed Michael Calabrese, director of the Wireless Future Program at New America. “As mobile carriers develop what they call ‘network slicing,’ we will be on the lookout for offers that violate this fundamental principle of network neutrality,” he said.

Calabrese said the rules are already clear that carriers won't be able to use slicing to offer broadband customers a guaranteed quality of service for video conferencing from some companies but not others.

Free State Foundation President Randolph May said nothing in the order surprised him, but that doesn’t mean he’s not concerned. “The commission’s non-decision regarding network slicing illustrates the fundamental problem” with its approach, May wrote in an email: By declaring the agency will closely monitor developments and may take enforcement action eventually, “it wields a regulatory ‘Sword of Damocles’ approach that chills investment and innovation, not only with regard to wireless services, but new wireline offerings too.”

The slicing rules “could create a new headwind” for industry, Cooley’s Robert McDowell told us: “This scenario is likely to create more questions and uncertainty. So the regulation-of-network-slicing story is just beginning.”

The FCC's "refusal to preempt" New York's broadband affordability law and other state laws governing affordability "gives a major boost to state efforts to close the digital divide," said Affordable Broadband Campaign's Gigi Sohn (see 2405070077). "A persistent and combined federal and state effort to address affordability is clearly warranted," Sohn said. The final order also tweaked some language on the commission’s approval of California’s net neutrality law. While the draft said that the commission would consider “greater preemption” if California tries to interpret or enforce its rules in a way that’s inconsistent with the FCC approach, the final order says the agency would consider “appropriately tailored preemption.”