Thanks to weeks of the public speaking up and taking action the FCC has recognized the flaw in their proposed net neutrality rules. The FCC’s final adopted order on net neutrality restores bright line rules against all forms of throttling, once again creating strong federal protections for all Americans.

The FCC’s initial order had a narrow interpretation of throttling that could have allowed ISPs to create so-called fast lanes, speeding up access to certain sites and services and effectively slowing down other traffic flowing through your network. The order’s bright line rule against throttling now explicitly bans this kind of conduct, finding that the “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.” With this language, the order both hews more closely to the 2015 Order and further aligns with the strong protections Californians already enjoy via California’s net neutrality law.

As we celebrate this victory, it is important to remember that net neutrality is more than just bright line rules against blocking, throttling, and paid prioritization: It is the principle that ISPs should treat all traffic coming over their networks without discrimination. Customers, not ISPs, should decide for themselves how they would like to experience the internet. EFF—standing with users, innovators, creators, public interest advocates, libraries, educators and everyone else who relies on the open internet—will continue to champion this principle. 

In the absence of strong net neutrality protections, internet service providers (ISPs) have made all sorts of plans that would allow them to capitalize on something called "network slicing." While this technology has all sorts of promise, what the ISPs have planned would subvert net neutrality—the principle that all data be treated equally by your service provider—by allowing them to recreate the kinds of “fast lanes” we've already agreed should not be allowed. If their plans succeed, then the new proposed net neutrality protections will end up doing far less for consumers than the old rules did.

The FCC released draft rules to reinstate net neutrality, with a vote on adopting the rules to come the 25th of April. Overall, the order is a great step for net neutrality. However, to be truly effective the rules must not preempt states from protecting their residents with stronger laws and clearly find the creation of “fast lanes” via positive discrimination and unpaid prioritization of specific applications or services are violations of net neutrality.

Fast Lanes and How They Could Harm Competition

Since “fast lanes” aren’t a technical term, what do we mean when we are talking about a fast lane? To understand, it is helpful to think about data traffic and internet networking infrastructure like car traffic and public road systems. As roads connect people, goods, and services across distances, so does network infrastructure allow for data traffic to flow from one place to another. And just as a road with more capacity in the way of more lanes theoretically means the road can support more traffic moving at speed1, internet infrastructure with more “lanes” (i.e. bandwidth) should mean that a network can better support applications like streaming services and online gaming.

Individual ISPs have a maximum network capacity, and speed, of internet traffic they can handle. To continue the analogy, the road leading to your neighborhood has a set number of lanes. This is why the speed of your internet may change throughout the day. At peak hours your internet service may slow down because a slowdown has occurred from too much requested traffic clogging up the lanes.

It’s not inherently a bad thing to have specific lanes for certain types of traffic, actual fast lanes on freeways can improve congestion by not making faster moving vehicles compete for space with slower moving traffic, having exit and entry lanes in freeways also allows cars to perform specialized tasks without impeding other traffic. A lane only for buses isn’t a bad thing as long as every bus gets equal access to that lane and everyone has equal access to riding those buses. Where this becomes a problem is if there is a special lane only for Google buses, or for consuming entertainment content instead of participating in video calls. In these scenarios you would be increasing the quality of certain bus rides at the expense of degraded service for everyone else on the road.

An internet “fast lane” would be the designation of part of the network with more bandwidth and/or lower latency to only be used for certain services. On a technical level, the physical network infrastructure would be split amongst several different software defined networks with different use cases using network slicing. One network might be optimized for high bandwidth applications such as video streaming, another might be optimized for applications needing low latency (e.g. a short distance between the client and the server), and another might be optimized for IoT devices. The maximum physical network capacity is split among these slices. To continue our tortured metaphor, your original six lane general road is now a four lane general road with two lanes reserved for, say, a select list of streaming services. Think dedicated high speed lanes for Disney+, HBO, and Netflix, but those services only. In a network neutral construction of the infrastructure, all internet traffic shares all lanes, and no specific app or service is unfairly sped up or slowed down. This isn’t to say that we are inherently against network management techniques like quality of service or network slicing. But it’s important that quality of service efforts be undertaken, as much as possible, in an application agnostic manner.

The fast lanes metaphor isn’t ideal. On the road having fast lanes is a good thing, it can protect more slow and cautious drivers from dangerous driving and improve the flow of traffic. Bike lanes are a good thing because they make cyclists safer and allow cars to drive more quickly and not have to navigate around them. But with traffic lanes it’s the driver, not the road, that decides which lane they belong in (with penalties for doing obviously bad faith things such as driving in the bike lane.)

Internet service providers (ISPs) are already testing their ability to create these network slices. They already have plans of creating market offerings where certain applications and services, chosen by them, are given exclusive reserved fast lanes while the rest of the internet must shoulder their way through what is left. This kind of networking slicing is a violation of net neutrality. We aren’t against network slicing as a technology, it could be useful for things like remote surgery or vehicle to vehicle communication which requires low latency connections and is in the public interest, which are separate offerings and not part of the broadband services covered in the draft order. We are against network slicing being used as a loophole to circumvent principles of net neutrality.

Fast Lanes Are a Clear Violation of Net Neutrality

Where net neutrality is the principle that all ISPs should treat all legitimate traffic coming over their networks equally, discriminating between  certain applications or types of traffic is a clear violation of that principle. When fast lanes speed up certain applications or certain classes of applications, they cannot do so without having a negative impact on other internet traffic, even if it’s just by comparison. This is throttling, plain and simple.

Further, because ISPs choose which applications or types of services get to be in the fast lane, they choose winners and losers within the internet, which has clear harms to both speech and competition. Whether your access to Disney+ is faster than your access to Indieflix because Disney+ is sped up or because Indieflix is slowed down doesn’t matter because the end result is the same: Disney+ is faster than Indieflix and so you are incentivized to use Disney+ over Indieflix.

ISPs should not be able to harm competition even by deciding to prioritize incumbent services over new ones, or that one political party’s website is faster than another’s. It is the consumer who should be in charge of what they do online. Fast lanes have no place in a network neutral internet.

• 1. Urban studies research shows that this isn’t actually the case, still it remains the popular wisdom among politicians and urban planners.

The Federal Communications Commission (FCC) has released draft rules to reinstate net neutrality, with a vote on adopting the rules to come on the 25th of April. The FCC needs to close some loopholes in the draft rules before then.

Proposed Rules on Throttling and Prioritization Allow for the Circumvention of Net Neutrality

Net neutrality is the principle that all ISPs should treat all traffic coming over their networks without discrimination. The effect of this principle is that customers decide for themselves how they’d like to experience the internet. Violations of this principle include, but are not limited to, attempts to block, speed up, or slow down certain content as means of controlling traffic.

Net neutrality is critical to ensuring that the internet remains a vibrant place to learn, organize, speak, and innovate, and the FCC recognizes this. The draft mostly reinstates the bright-line rules of the landmark 2015 net neutrality protections to ban blocking, throttling, and paid prioritization.

It falls short, though, in a critical way: the FCC seems to think that it’s not okay to favor certain sites or services by slowing down other traffic, but it might be okay to favor them by giving them access to so-called fast lanes such as 5G network slices. First of all, in a world with a certain amount of finite bandwidth, favoring some traffic necessarily impairs other traffic. Secondly, the harms to speech and competition would be the same even if an ISP could conjure more bandwidth from thin air to speed up traffic from its business partners. Whether your access to Spotify is faster than your access to Bandcamp because Spotify is sped up or because Bandcamp is slowed down doesn’t matter because the end result is the same: Spotify is faster than Bandcamp and so you are incentivized to use Spotify over Bandcamp.

The loophole is especially bizarre because the 2015 FCC already got this right, and there has been bipartisan support for net neutrality proposals that explicitly encompass both favoring and disfavoring certain traffic. It’s a distinction that doesn’t make logical sense, doesn’t seem to have partisan significance, and could potentially undermine the rules in the event of a court challenge by drawing a nonsensical distinction between what’s forbidden under the bright-line rules versus what goes through the multi-factor test for other potentially discriminatory conduct by ISPs.

The FCC needs to close this loophole for unpaid prioritization of certain applications or classes of traffic. Customers should be in charge of what they do online, rather than ISPs deciding that, say, it’s more important to consume streaming entertainment products than to participate in video calls or that one political party’s websites should be served faster than another’s.

The FCC Should Clearly Rule Preemption to be a Floor, Not a Ceiling

When the FCC under the previous administration abandoned net neutrality protections in 2017 with the so-called “Restoring Internet Freedom” order, many states—chief among them California—stepped in to pass state net neutrality laws. Laws more protective than federal net neutrality protections—like California's should be explicitly protected by the new rule.

The FCC currently finds that California’s law “generally tracks [with] the federal rules[being] restored. (269)” It goes on to find that state laws are fine so long as they do not “interfere with or frustrate…federal rules,” are not “inconsistent,” or are not “incompatible.” It then reserves the right to revisit any state law if evidence arises that a state policy is found to “interfere or [be] incompatible.”

States should be able to build on federal laws to be more protective of rights, not run into limits to available protections. California’s net neutrality is in some places stronger than the draft rules. Where the FCC means to evaluate zero-rating, the practice of exempting certain data from a user’s data cap, on a case-by-case basis, California outright bans the practice of zero rating select apps.

There is no guarantee that a Commission which finds California to “generally track” today will do the same in two years time. The language as written unnecessarily sets a low bar for a future Commission to find California’s, and other states’, net neutrality laws to be preempted. It also leaves open unnecessary room for the large internet service providers (ISPs) to challenge California’s law once again. After all, when California’s law was first passed, it was immediately taken to court by these same ISPs and only after years of litigation did the courts reject the industry’s arguments and allow enforcement of this gold standard law to begin.

We urge the Commission to clearly state that, not only is California consistent with the FCC’s rules, but that on the issue of preemption the FCC considers its rules to be  the floor to build on, and that further state protections are not inconsistent simply because they may go further than the FCC chooses to.

Overall, the order is a great step for net neutrality. Its rules go a distance in protecting internet users. But we need clear rules recognizing that the creation of fast lanes via positive discrimination and unpaid prioritization are violations of net neutrality just the same, and assurance that states will continue to be free to protect their residents even when the FCC won’t.

Tell the FCC to Fix the Net Neutrality Rules:

1. Go to this link
2. For "Proceeding" put 23-320
3. Fill out the form
4. In "brief comments" register your thoughts on net neutrality. We recommend this, which you can copy and paste or edit for yourself:

Net neutrality is the principle that all internet service providers treat all traffic coming through their networks without discrimination. The effect of this principle is that customers decide for themselves how they’d like to experience the internet. The Commission’s rules as currently written leave open the door for positive discrimination of content, that is, the supposed creation of fast lanes where some content is sped up relative to others. This isn’t how the internet works, but in any case, whether an ISP is speeding up or slowing down content, the end result is the same: the ISP picks the winners and losers on the internet. As such the Commission must create bright line rules against all forms of discrimination, speeding up or slowing down, against apps or classes of apps on general traffic in the internet.

Further, while the Commission currently finds state net neutrality rules, like California’s, to not be preempted because they “generally track” its own rules, it makes it easy to rule otherwise at a future date. But just as we received net neutrality in 2015 only to have it taken away in 2017, there is no guarantee that the Commission will continue to find state net neutrality laws passed post-2017 to be consistent with the rules. To safeguard net neutrality, the Commission must find that California’s law is wholly consistent with their rules and that preemption is taken as a floor, not a ceiling, so that states can go above and beyond the federal standard without it being considered inconsistent with the federal rule.

Take Action

Tell the FCC to Fix the Net Neutrality Rules

EFF has long advocated for affordable, accessible, future-proof internet access for all. Nearly 80% of Americans already consider internet access to be as essential as water and electricity, so as our work, health services, education, entertainment, social lives, etc. increasingly have an online component, we cannot accept a future where the quality of your internet access—and so the quality of your connection to these crucial facets of your life—is determined by geographic, socioeconomic, or otherwise divided lines. 

Lawmakers recognized this during the pandemic and set in motion once-in-a-generation opportunities to build the future-proof fiber infrastructure needed to close the digital divide once and for all.

As we exit the pandemic however, that dedication is wavering. Monopolistic internet service providers (ISPs), with business models that created the digital divide in the first place, are doing everything they can to maintain control over the broadband market—including stopping the construction of any infrastructure they do not control. Further, while some government agencies are continuing to make rules to advance equitable and competitive access to broadband, others have not. Regardless, EFF will continue to fight for the vision we’ve long advocated.

New York City Abandons Revolutionary Fiber Plan 

This year, New York City Mayor Eric Adams turned his back on the future of broadband accessibility for New Yorkers.

In 2020, then Mayor Bill de Blasio unveiled New York City’s Internet Master Plan to deliver broadband to low-income New Yorkers by investing in public fiber infrastructure. Public fiber infrastructure would have been an investment in New York City’s future, a long-term solution to permanently bridge the digital divide and bring affordable, accessible future-proof service to New Yorkers for generations to come. This kind of public infrastructure, especially if provisioned on an open and affordable basis dramatically lowers barriers to entry, which in turn creates competition, lower prices, and better customer service in the market as a whole.

Mayor Eric Adams not only abandoned this plan, but subsequently introduced a three-year $90 million dollar subsidy plan called Big Apple Connect. Instead of building physical infrastructure to bridge the digital divide for decades to come, New York City will now subsidize NYC’s oligopolist ISPs, Charter Spectrum and Altice, to continue doing business as usual. This does nothing to address the needs of underinvested communities whose legacy networks physically cannot handle a fast connection. All it does is put taxpayer dollars into corporate pockets instead of into infrastructure that actually serves the people.

The Adams administration even asked a cooperatively-run community based ISP that had been a part of the Internet Master Plan and had already installed fiber infrastructure to dismantle their network so the city can further contract with the big ISPs.

California Wavers On Its Commitments

New York City is not the only place public commitment to bridging the digital divide has wavered. 

In 2021, California invested nearly $7 billion to bring affordable fiber infrastructure to all Californians. As part of this process California’s Department of Technology was meant to build 10,000 miles of middle-mile fiber infrastructure, the physical foundation through which community-level last mile connections would be built to serve underserved communities for decades to come.

Unfortunately, in August the Department of Technology not only reduced the number of miles to be built but also cut off entire communities that had traditionally been underserved. Despite fierce community pushback, the Department of Technology stuck to their revised plans and awarded contracts accordingly.

Governor Newsom has promised to restore the lost miles in 2024, which EFF and California community groups intend to hold him to, but the fact remains that the reduction of miles should not have been done the way they were.

FCC Rules on Digital Discrimination and Rulemaking on Net Neutrality

On the federal level, the Federal Communications Commission finally received its fifth commissioner in Anna Gomez September of this year, allowing them to begin their rulemaking on net neutrality and promulgate rules on digital discrimination. We submitted comments on the net neutrality proceeding, advocating for a return to light-touch, targeted, and enforceable net neutrality protections for the whole country.

On digital discrimination, EFF applauds the Commission for adopting a disparate treatment as well as disparate impact standard. Companies can now be found liable for digital discrimination not only when they intentionally treat communities differently, but when the impact of their decisions—regardless of intent—affect a community differently.  Further, for the first time the Commission recognized the link between historic redlining in housing and digital discrimination, making the connection between the historic underinvestment of lower income communities of color and the continued underinvestment by the monopolistic ISPs.

Next year will bring more fights around broadband implementation. The questions will be who gets funding, whether and where infrastructure gets built, and whether long-neglected communities will finally be heard and brought into the 21st-century or left behind by public neglect or private greed. The path to affordable, accessible, future-proof internet for all will require the political will to invest in physical infrastructure and hold incumbents to nondiscrimination rules that preserve speech and competition online.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.