4/22 Final Filing on Net Neutrality, Opposing Application-Specific Discrimination and Rebutting Mobile Industry Claims about “Slicing” and Throttling

The Open Technology Institute at New America (OTI) and its Wireless Future Project filed a final set of arguments to the Federal Communications Commission rebutting claims by CTIA (the wireless communications industry assocation) that application-specific and content-specific discrimination—which were barred by the network neutrality rules adopted in 2015 and repealed in 2017—should be allowed because it somehow enhances “consumer choice.”

OTI’s filing urges the FCC to close loopholes in the Draft Order that could be interpreted as allowing application-specific discrimination (“fast lanes”) so long as the edge provider does not pay the broadband internet access service (BIAS) provider. We are most concerned about mobile carriers offering retail BIAS customers a network “slice” that gives QOS or other favorable treatment only to selected apps or content, such as Zoom or Netflix. 

Most critically, concerning network slicing and non-BIAS services, we suggest that the following additional clarification should be added to illustrate that application-specific or content-specific discrimination is a violation whether or not the edge provider pays for it, and we describe two ways mobile carriers can monetize these fast lanes even if they don’t violate the bright line rule against paid prioritization:

“In addition, we are likely to find that a network slice is likely to evade the protections we established for BIAS if BIAS customers are offered a higher or guaranteed quality of service for a video conferencing or other application from one or more specific edge providers but not all edge providers of competing or similar applications or services.”

More generally, OTI also proposes that the Draft Order add language to the section on the bright line rule against throttling to clarify that application-specific discrimination is a violation:

“Some commenters asked us to clarify our 2015 rules by stating that positive discrimination is necessarily or always equivalent to throttling. While we are not concluding that positive discrimination is always throttling, we are likely to find that it is unreasonably discriminatory to give favorable treatment to specific content, apps or services (or categories of applications) but not to competing or similar content, applications or services.”