FCC closes net neutrality loophole that could have left customers paying more for faster gaming apps

The first draft of the new net neutrality rules left a loophole for ISPs and wireless carriers

The FCC released the Final Draft of its net neutrality rules on May 7th

The first draft would have allowed ISPs to provide “fast lanes” for certain applications as long as the application provider wouldn’t have to pay for the special treatment that would provide them with a faster internet stream. Instead, consumers would be expected to pay for the faster streams. The initial draft didn’t address such scenarios and only explicitly blocked ISPs from slowing down applications. ISPs could have taken advantage of this loophole by charging customers more for certain content to be streamed over a “fast lane.”

Michael Calabrese, director of the Open Technology Institute’s Wireless Future Project, notes that mobile carriers can’t use “network slicing” to offer some broadband customers a guaranteed quality of service for video conferencing from some customers but not others. Standford Law Professor Barbara van Schewick said the FCC’s “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.”

Legislation is needed to prevent net neutrality from coming and going every four to eight years

Those who support net neutrality state that in these scenarios, offering different lanes for different types of traffic would “degrade” the quality of the content that isn’t being favored. The FCC said, “We clarify that a BIAS [Broadband Internet Access Service] 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.”

The clarification means that speeding up content is banned because the no-throttling rule says that ISPs “shall not impair or degrade lawful Internet traffic on the basis of Internet content, application, or service.” Professor van Schewick told Ars Technica  that the FCC’s final draft “clearly prohibits ISPs from limiting fast lanes to apps or categories of apps they select.” Broadband providers plan to sue the FCC to prevent the regulation from taking place.

But what is really needed is legislation to be passed that would make net neutrality a law. Otherwise we could continue to see net neutrality come and go every time a new party comes into power. For example, Net neutrality was created during the Obama era, taken away during the Trump years, and returned under the Biden administration. Passing a net neutrality law could help carriers with their long-term planning since they wouldn’t have to wonder whether they need to make net neutrality rules part of their long-term budgeting.