The FCC doesn’t have to authorize Internet fast lanes -- they’re already legal

Federal Communications Commission Chairman Tom Wheeler repeatedly said that his network neutrality proposal doesn’t authorize Internet fast lanes.

“This proposal does not provide or mandate paid prioritization,” he said to reporters after the FCC’s vote. “There is nothing in this proposal that authorizes a fast lane. We ask questions but don’t jump to conclusions.”

So has everyone who called this a “fast lane” proposal gotten the story wrong? Not exactly. As Commissioner Mignon Clyburn said during the meeting, there are no rules at all against Internet service providers blocking traffic or prioritizing some content over others. That’s because a federal appeals court in 2014 overturned the FCC’s previous net neutrality order, issued in 2010.

While the FCC’s latest proposal doesn’t specifically authorize fast lanes, it didn’t have to: they’re already legal. ISPs can charge Web services like Netflix (“edge providers” in regulatory parlance) for a faster path to consumers over the last mile of the network because there aren’t any enforceable rules against it. The important thing is that the proposal apparently doesn’t ban fast lanes.