FCC Draft Net Neutrality Order reclassifies broadband access; leaves 5G network slicing unresolved


The FCC will take a series of steps to reestablish the commission’s net neutrality framework and reclassify broadband internet access service (BIAS) as a Communications Act Title II telecom service in a 434 page declaratory ruling and order which doesn’t resolve the issue of network slicing as a paid priority 5G service.

A draft of the items to be considered during the agency’s April meeting, released Thursday, would establish “broad” and “tailored” forbearance for ISPs.  “Access to broadband Internet is now an unquestionable necessity. We also exercise broad forbearance for broadband providers as part of the Title II reclassification. Since the Commission’s abdication of authority over broadband in 2017, there has been no federal oversight over this vital service. This item would reestablish the Commission’s authority to protect consumers and safeguard the fair and open Internet, which protects free expression, encourages competition and innovation, and is critical to public safety and national security.”

Network Slicing:

The draft doesn’t make a final determination on how network slicing should be treated under the rules.  Network slicing, which requires a 5G SA core network, enables 5G network operators to create multiple virtual networks on top of a shared network. How slicing should be treated has been hotly contested.

“To the extent network slicing falls outside of BIAS, we will closely monitor these uses to evaluate if they are providing the functional equivalent of BIAS, being used to evade our open Internet rules, or otherwise undermining investment, innovation, competition, or end-user benefits in the Internet ecosystem,” the draft said.

“The record reflects that the potential use cases for network slicing are still under development” and that carriers “are in the early stages of adopting the technique, with some moving more quickly than others.  Given the nascent nature of network slicing, we conclude that it is not appropriate at this time to make a categorical determination regarding all network slicing and the services delivered through the use of network slicing.”

Yet the document also says it agrees with NCTA “that we ‘should not allow network slicing to be used to evade [the] Open Internet rules.’”

The FCC declined to do what either side wanted” on slicing, New Street’s Blair Levin stated in a note to investors. “While this was not the clear, decisive win the wireless providers may have hoped for, we don’t believe this or a future FCC is likely to crack down on the primary uses of network slicing, which we understand to be network management techniques that better match wireless services to specific needs in ways that increase spectrum utilization.”

The text left me rather confused more than reassured,” Digital Progress Institute President Joel Thayer said Friday. The commission seems interested in addressing slicing case by case, he said: “This does not bode well for consumer-facing uses of slicing as that tech starts to develop.”

One implication is the FCC might crack down on slicing if the agency sees it as a form of paid prioritization of network traffic, said Jonathan Cannon, R Street Institute policy counsel-technology and innovation and former aide to FCC Commissioner Nathan Simington.

The report and order would: “Reinstate straightforward, clear rules that prohibit blocking, throttling, or engaging in paid or affiliated prioritization arrangements, and adopt certain enhancements to the transparency rule.”


The new FCC order would adopt “conduct-based rules” in the commission’s net neutrality framework, establishing “bright-line rules to prohibit blocking, throttling, and paid prioritization” by ISPs. An accompanying draft report and order would also reinstate a general conduct standard and establish a “multi-faceted enforcement framework.”

The draft declaratory ruling would officially reclassify broadband as a Title II service, saying the step would allow the commission to “more effectively safeguard the open internet” and establish a nationwide framework. The draft would largely adopt the commission’s 2015 rules on forbearance, making clear that the record “does not convincingly show that imposing universal service contribution requirements on BIAS is necessary at this time.”

The commission in the draft defended reclassification as a national security matter, noting it has previously taken action under Title II to address national security threats against voice services. “The nation’s communications networks are critical infrastructure, and therefore too important to leave entirely to market forces that may sometimes, but not always, align with necessary national security measures,” the item said.

The draft declaratory ruling also addresses the impact of reclassification on the commission’s universal service goals under section 254 of the Communications Act. Reclassification “will put the commission on the firmest legal ground to promote the universal service goals of section 254 by enabling the commission and states to designate BIAS-only providers” as eligible telecom carriers, the draft said, adding that BIAS-only providers would be allowed to participate in the high-cost and Lifeline programs.

The draft elaborates on the importance of reclassifying broadband to the agency’s authorities under Section 214 of the Communications Act, another issue raised by industry (see 2403070040). Reclassification “enhances the Commission’s ability to protect the nation’s communications networks from entities that pose threats to national security and law enforcement.”

We find that reclassification will significantly bolster the Commission’s ability to carry out its statutory responsibilities to safeguard national security and law enforcement,” the draft said: “There can be no question about the importance to our national security of maintaining the integrity of our critical infrastructure, including communications networks.” It noted that Congress created the FCC “for the purpose of the national defense.”

The agency dismissed arguments that reclassification isn’t justified for national security purposes: “The nation’s communications networks are critical infrastructure, and therefore too important to leave entirely to market forces that may sometimes, but not always, align with necessary national security measures.” Arguments about potential costs “are unpersuasive given that, at this point, they represent only speculation about hypothetical costs and burdens.”

A draft order on reconsideration included with Thursday’s item said the net neutrality order would resolve four outstanding petitions for reconsideration filed against the FCC’s 2020 net neutrality remand order by Incompas, California’s Santa Clara County, Public Knowledge, and jointly several public interest groups including Common Cause. “As a procedural matter, we find that we have effectively provided the relief sought by each of the Petitions through a combination of the 2023 Open Internet NPRM and today’s actions,” the draft order said. “In light of the Commission’s actions today, we grant in large part and otherwise dismiss as moot” all four petitions for reconsideration. “We agree with the petitioners that the Commission’s analysis in the [Restoring Internet Freedom] Order and RIF Remand Order was insufficient in addressing the public safety, pole attachment, and Lifeline-related repercussions of classifying BIAS as a Title I service,” the draft said.

House Commerce Committee ranking member Frank Pallone, D-N.J., and Communications Subcommittee ranking member Doris Matsui, D-Calif., praised Rosenworcel “for moving to finalize rules that reflect reality: broadband internet service is critical infrastructure and an indispensable part of American life, and it must be treated that way.” The FCC’s move for Title II reclassification shows the commission is “recognizing this reality and asserting its rightful authority over broadband providers in order to protect this vital service and the hundreds of millions who rely on it each day,” Pallone and Matsui said. The two lawmakers “have confidence that a court reviewing this action will uphold it, just as courts have done in the past.” Sens. Ed Markey, D-Mass., and Ron Wyden, D-Ore., also lauded the proposal Thursday after earlier urging Rosenworcel to prevent loopholes in the rules.

The House Commerce GOP majority was tight-lipped after the draft’s release Thursday. Republican members tweeted Wednesday that the net neutrality proposal showed the commission “continues pushing Biden’s Broadband Takeover by imposing unnecessary heavy-handed regulations.”





BT Group, Ericsson and Qualcomm demo network slicing on 5G SA core network in UK

ABI Research: 5G Network Slicing Market Slows; T-Mobile says “it’s time to unleash Network Slicing”

Ericsson, Intel and Microsoft demo 5G network slicing on a Windows laptop in Sweden

Is 5G network slicing dead before arrival? Replaced by private 5G?

5G Network Slicing Tutorial + Ericsson releases 5G RAN slicing software

Network Slicing and 5G: Why it’s important, ITU-T SG 13 work, related IEEE ComSoc paper abstracts/overviews




One thought on “FCC Draft Net Neutrality Order reclassifies broadband access; leaves 5G network slicing unresolved

  1. Thanks for the concise summary of a 434-page document. It will be interesting to see what, if any impact, Title II regulation of broadband will have on slicing, as well as the deployment of and the continued expansion of broadband and the associated ecosystem (from smart homes to smart cities).

    Ted Hearn and his Policyband newsletter have some additional insight on the slicing opportunity that might be of interest.


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