The January 2018 issue of IEEE ComSoc Technology News featured a column entitled “Network Neutrality: A Concept for Yesterday’s Internet” and an associated sidebar “What’s Happening in the U.S. with Network Neutrality”. Unfortunately, the article implies that the Federal Communications Commission’s 2015 Open Internet Order prohibits certain types of Quality-of-Service that it does not, and the sidebar states that the FCC’s 2017 Restoring Internet Freedom Order maintains rules that it repealed.

The article is concerned with the ability to prioritize traffic in future mobile networks. It describes at length “why it is important to have the ability to prioritize traffic and charge differently for various types of services for the varying types of resources needed to support the services.”

While the article generally describes the technology correctly, it badly misconstrues net neutrality as implemented in the FCC’s 2015 Open Internet Order. The article defines net neutrality as “treating all bits equal across all services, both in the priority and costs”, and implies that the 2015 Open Internet Order requires that Internet Service Providers do so unless the network practice constitutes “reasonable network management”. However, the 2015 Open Internet Order does no such thing.

First, consider the 2015 Open Internet Order’s no-paid-prioritization rule. This rule only concerns network traffic for which prioritization is paid by a third party. Specifically, prioritization is defined in the Order as:

“the management of a broadband provider’s network to directly or indirectly favor some traffic over other traffic, including through use of techniques such as traffic shaping, prioritization, resource reservation, or other forms of preferential traffic management, either (a) in exchange for consideration (monetary or otherwise) from a third party, or (b) to benefit an affiliated entity.”

Such third party paid prioritization is prohibited by the Order. In contrast, prioritization that is paid for by an end user is not prohibited. If an end user pays his or her broadband Internet access service provider to prioritize traffic selected by the end user, such a practice does not violate the no-paid-prioritization rule.
Second, consider the 2015 Open Internet Order’s no-throttling rule. This rule prohibits application-based throttling of traffic that does not constitute reasonable network management. Specifically, the rule prohibits:

“impair[ing] or degrad[ing] lawful Internet traffic on the basis of Internet content, application, or service, or use of a non-harmful device, subject to reasonable network management.”

If a network practice is application-agnostic, it does not violate the no-throttling rule. If an end user instructs his or her broadband Internet access service provider to prioritize traffic selected by the end user, such a practice is based on user choice; it is application-agnostic from the point of view of the broadband provider and is thus not prohibited under the no-throttling rule.

In contrast, the article seems to envision that broadband providers – not end users -- would determine which traffic should be prioritized. In this case, such prioritization would be evaluated to determine whether it is reasonable network management. The Order first defines a network management practice as a network practice “that has a primarily technical network management justification”, and then declares that a network management practice will be deemed reasonable if “it is primarily used for and tailored to achieving a legitimate network management purpose, taking into account the particular network architecture and technology of the broadband Internet access service”. Thus, if a mobile broadband provider prioritized traffic of its own selection, and that practice were primarily used for and tailored to achieving a technical network management goal, it would not be prohibited under the no-throttling rule. Furthermore, the particular characteristics of mobile network architecture would feature prominently in the determination. That said, there is a high bar for such a practice, since the lack of end user control undermines the tailoring of the practice and lends doubt to the purpose of the practice.

The article, however, also attempts to justify prioritization in which a broadband provider determines which traffic should be prioritized “depend[ing] on the business goals of the service provider.” Prioritization justified by business goals – not technical goals – would not qualify as reasonable network management and would be prohibited under the no-throttling rule. Indeed, such a network practice threatens the open Internet, because prioritization without end user control and for business purposes violates a consumer’s right to access lawful content, applications, and services without degradation unjustified by reasonable network management.

Finally, the sidebar to the article attempts to summarize the FCC’s 2017 Restoring Internet Freedom Order. The sidebar claims that the Restoring Internet Freedom Order maintains the no-blocking, no-throttling, and no-paid-prioritization rules. However, the Restoring Internet Freedom Order explicitly repeals these three rules, leaving in place only a downsized transparency rule. If this Order survives court challenge, broadband providers would merely have to disclose any blocking practices, application-specific throttling practices, or third party paid prioritization in which they engage.

Professor Scott Jordan, Professor of Computer Science, University of California, Irvine. He served as the FCC’s Chief Technologist during 2014-2016 and contributed toward the FCC’s 2015 Open Internet Order. His research is supported by the National Science Foundation.