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Should you have favourites? Recent net neutrality developments

Mark Webber
11/03/2015
After a couple of years of intense public interest, the start of 2015 has seen progress for the concept of net neutrality on both sides of the pond. Almost as the Federal Communications Commission After a couple of years of intense public interest, the start of 2015 has seen progress for the concept of net neutrality on both sides of the pond. Almost as the Federal Communications Commission voted to pass new rules for the United States, the EU started to think harder about the issue of net neutrality (and perhaps leading the EU in a slightly different direction as a result).

Whether this is a good or bad thing depends on what principles you hold dear in relation to the Internet. Rarely has there been such fervent and passionate debate.

Whether all information should be treated equally and what “equal" means

Putting aside the arguments for and against, the concept of net neutrality is simple. It is predicated on a principle that those who facilitate internet access should enable access to all content, applications and services regardless of the source, and without favouring or blocking particular products or websites. Some argue that this is the Internet's "guiding principle" and advocate that an open Internet is essential to protect free speech and a balanced access to ideas (without the influence of power and corporate clout). Others see this concept as archaic (the non-discrimination concept being applied originally in a 1934 Act aimed at facilitating radio access).

Some of the arguments for and against (minus the politics) are laid out in this great infographic from Chris McElroy.

In the US

In May 2014, FCC Chairman Tom Wheeler released a plan that would have permitted large US internet service providers (such as Verizon or Comcast) to actively discriminate between online traffic on the Internet. He had floated the idea of creating pay-to-play "fast lanes".  A way premium services could prioritise access to certain chosen content. An account favouring the "open Internet" arguments against prioritisation can be found here. Of course there are also those who have an alternative view of the need for net neutrality and some of those arguments are well presented by Joshua Steimle in his Forbes piece "Am I The Only Techie Against Net Neutrality?".

After much campaigning the option of "fast lanes" on the Internet died. On February 26th, the Federal Communications Commission voted in favour of new rules on how the Internet should be governed. This much publicised step, which was the focus of considerable lobbying, was seen as a victory for advocates of net neutrality.

The headline changes within these new rules are as follows:

  1. Blocking is banned: service providers are prevented from blocking or speeding up connections for a fee

  2. Throttling will be prohibited: Broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices

  3. "Paid prioritisation" is prohibited – so it will not be possible for service providers to strike deals with content firms to prefer certain traffic moving over networks


 

All this will be achieved by reclassifying broadband access under the telecoms rules.  A reclassification of broadband internet access services (including cellular) under Title II of the 1996 US Telecommunications Act results in broadband services being treated as a "telecommunications service" under Title II and effectively regulated as a public utility and imposing enhanced regulatory controls.

As the proposals went to the vote President Obama was vocally supportive of the net neutrality proposals and the rules will take effect 60 days after publication on the Federal Register. Opponents fear new taxes and fees for users resulting from a need for increased operational procedures. Those in favour argue many protections against such steps already exist and believe the debate to be one of fundamental freedoms. The fight may not be over and with Republican Presidential hopefuls such as Jeb Bush just today coming out against the plans and certain broadband service providers promising to fight the new rules in the US courts. Many agree that there may well be more lawsuits and law changes before the US battle for net neutrality is settled.

In Europe

The other side of the Atlantic may also see similar net neutrality developments where today, across the entire EU, only The Netherlands has a net neutrality law in force. Net neutrality is just one of the issues which is due to be addressed in the so-called "Telecoms Package". This package is something which was re-awakened this month in a number of announcements around the draft telecoms regulation.

In the European Union, in order for this Telecoms Package to become law, a few procedural steps (in a process called a “trialogue”) needs to take place. In this process, the current presidency (held by Latvia) will have to negotiate the terms of the proposed regulation with The European Parliament and The European Commission (represented by the new Digital Single Market Commissioner Günther Oettinger) on behalf of The Council of the European Union. In order to be adopted, the legal act resulting from these discussions must be voted upon by both The European Parliament and The Council.  As a regulation it would automatically become law in each EU Member State.

The European Parliament adopted its position (first-reading amendments) in April 2014 and, on March 4th this year, the Latvian Presidency was given a mandate to advance proposals on both roaming and the "open internet" (or net neutrality) in trialogue.

According to the March press release, the Presidency's mandate to negotiate the new regulation covers:

  1. "EU-wide rules on open internet, safeguarding end-users' rights and ensuring non-discriminatory treatment in the provision of internet access services

  2. changes to the current roaming regulation (known as Roaming III), representing an intermediate step towards phasing out roaming fees" [within Europe].


 

If passed, the new regulation (on the Telecoms Single Market) could apply from 30 June 2016.

In relation to net neutrality, the draft regulation is to enshrine the principle of end-users' right to access and distribute content of their choice on the Internet. It also sets out to ensure that companies that provide Internet access treat traffic in a "non-discriminatory manner". The press release explains that the proposed regulation "sets common rules on traffic management, so that the internet can continue to function, grow and innovate without becoming congested. Blocking or slowing down specific content or applications will be prohibited, with only a limited number of exceptions and only for as long as it is necessary. For instance, customers may request their operator to block spam. Blocking could also be necessary to prevent cyber attacks through rapidly spreading malware."

Again, as our very own net neutrality debate emerges in Europe, another storm is brewing. The original proposals appear to have been watered down and activists and commentators were quick to point to flaws in the principles where it comes to truly open internet. In fact, on the same day, in an open letter a number of Europe Parliament MEPs called for better definition of the European net neutrality rules which they believe to be of "vital importance not only for the Telecoms Single Market, but also for the Digital Single Market".

Why the controversy? As www.accessnow.org reports here, "[n]ot only does the proposal enable the creation of slow and fast lanes by allowing paid prioritization and discriminatory practices such as “zero-rating” schemes, but the proposal also introduces loopholes that could authorise the blocking by Internet Service Providers of legal content, contradicting the EU Charter of Fundamental Rights." Unlike the US, depending on the results of the trialogue, perhaps the EU will see rules in the future which contradict a purist view of net neutrality and permit certain traffic management practices. If there are to be provisions explicitly permitting specialised services "other than internet access services" to be prioritised where high-quality access is needed, what may these services include? Who or what may benefit from prioritisation?

As any future regulation, if you're not trying to influence the outcome, it can be a mistake to get lost in the detail and the "what ifs?" too early. This said, the current vague and broad references to "traffic management" within the European proposals may test the net neutrality concept of enabling access to all content. The battle lines are drawn and in both the US and Europe we may not currently have a full view of where this net neutrality debate will fall out.

Mark Webber – Partner, Palo Alto California mark.webber@fieldfisher.com

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