Network neutrality

Updates

The Body of European Regulators for Electronic Communications (BEREC) and the Telecom Regulatory Authority of India (TRAI) signed a Memorandum of Understanding (MoU) through which the two parties aim to promote competitive markets, technological innovation, and value for consumers. BEREC and TRAI have also adopted a Joint Statement for an Open Internet that outlines the common scope and grounds of net neutrality frameworks in Europe and India and show the parties’ commitment with the supervision and the enforcement of rules and guidelines for an open Internet in their regions. It also intends to show the willingness of both sides to develop interregional cooperation and exchanges between regulators regarding the implementation of best practices for net neutrality.

In the USA, the Federal Communications Commission’s (FCC) Restoring Internet Freedom Order take effect officially on 11 June 2018, repealing the 2015 net neutrality order and restoring the classification of broadband Internet access service as a lightly-regulated information service. New rules make it possible that Internet Service Providers (ISPs) slow, block or offer “paid prioritisation” to some websites or applications as long as they disclose the practices. In its press release, FCC says that the new rules ‘will protect the open Internet that consumers cherish while paving the way for better, faster, cheaper Internet access’. Also, it argues that ‘the FCC is returning to the successful, bipartisan framework that helped the Internet grow and flourish for two decades prior to 2015.’ A number of US states are putting in place net neutrality rules to require ISPs to treat data equally when operating in their regions. Earlier this year the US Senate has voted in favour of overturning the FCC decision to repeal net neutrality rules but the decision is pending before the House of Representatives that have to vote in line with the Senate, and President Donald Trump would also have to sign the measure to restore the old FCC rules.

Despite industry objections, a strict net neutrality bill is getting close to becoming law in California, USA. In a 23-12 vote, the California State Senate approved the bill that will impose net neutrality rules considered as tougher than the 2015 order of Federal Communications Commission (FCC). Besides basic rules on blocking, throttling, and paid prioritisation, the bill would ban paid zero-rating arrangements in which Internet access providers charge online services for data cap exemptions. Senator Scott Wiener, the bill sponsor, said in an announcement after the vote: ‘I want to thank the enormous grassroots coalition that is fighting tooth and nail to help pass SB 822 and protect a free and open Internet. We have a lot more work to get this bill through the Assembly, but this is a major win in our fight to reinstate net neutrality in California.’ Now the bill goes to the State Assembly.

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The Internet’s success lies in its design, which is based on the principle of net neutrality. From the outset, the flow of all the content on the Internet was treated without discrimination. New entrepreneurs did not need permission or market power to innovate on the Internet. With the development of new digital services, especially the ones consuming high bandwidth such as high-quality video streaming, some Internet operators (telecom companies and ISPs) started prioritising certain traffic – such as their own services or the services of their business partners – based on business needs and plans, justifying such an approach with a need to raise funds to further invest in the network. Net neutrality proponents strongly fight back such plans arguing this could limit open access to information and online freedoms, and stifle online innovation.

 

The current situation

The first discord in the interpretation of the principle of net neutrality focused on network traffic management practices. Since the early days of dial-up modem connection to the Internet, traffic management has been used to deal with a gap between available bandwidth and the users’ bandwidth needs. In order to address this challenge and provide quality service, Internet operators have used various traffic management techniques to prioritise certain traffic. For example, Internet traffic carrying Voice over Internet Protocol (VoIP) services (e.g. Skype) should have priority over traffic carrying a simple e-mail: while we can hear delays in Skype voice chat, we won’t notice minor delays in an e-mail exchange. With the continuously increasing demand for high bandwidth (prompted by over-the-top (OTT) services such as Skype, Google Hangout, Hulu, or Netflix), traffic management is becoming increasingly sophisticated in routing Internet traffic in the most optimal way for providing quality service, preventing congestion, and eliminating latency and jitter.

In the debate over traffic management practices, net neutrality purists argued that ‘all bits are created equal’ and that all Internet traffic must be treated equally. Telecoms and ISPs challenged this view arguing that users should have equal access to Internet services and if this is to happen, Internet traffic cannot be treated equally. For example, if both video and e-mail traffic are treated equally, users won’t have good video-stream reception. Even net neutrality purists ceased to question this rationale.

Economic aspects in the network neutrality debate

During the past few decades, network operators have started to change their business models: in addition to providing Internet access, they have introduced their own VoIP or IPTV (television via Internet) services, video-on-demand, music or video download portals, etc. They are now competing not only with their counterparts for providing cheaper, faster, and better quality connections, but also with OTT service providers. In this new competitive environment, traffic management may be used for prioritising packages according to business-driven preferences. For instance, an operator may decide to slow down or fully ban the flow of data packages from a competing company to end-users through its network, while giving priority to data packages of its own in-house service .

Operators also argue that the demand for more bandwidth - spurred mostly by OTT services - require them to invest more in the basic infrastructure. In their view, since OTT service providers are the ones benefiting the most from the improved infrastructure, a multi-tiered network policy model requiring providers to contribute financially would guarantee the required quality of service for OTT consumers.

In an attempt to increase revenues, the industry has designed new business models.

Zero-rating services, offered to customers by mobile telecom providers, allow unlimited (free) use of specific applications or services. In some cases, access to such services does not count towards a subscriber’s data threshold, while in other arrangements, users are allowed access even without a data plan.

Although it is is increasingly present throughout the world, zero-rating has become a controversial subject. One of the main arguments in favour of zero-rating is that it lowers the cost of access to online information (when offered as part of a data plan), and gives access to (some) online information to users who cannot afford a data plan (when access is free of charge). Supporters consider that access to some information is preferable to no access at all. Opponents argue that zero-rating prioritises certain services over others, and, as such, challenges the net neutrality principle while harming market competition and innovation. Some also express concern over the implications that zero-rating could have on users’ human rights, in that such services can conflict with a user’s right to information.

Debates on zero-rating have become more intensive following the introduction of the Free Basics service in 2014. Offered by Facebook in several developing and less developed countries; the service allow users of mobile communications to access applications such as Wikipedia and AccuWeather (in addition to Facebook) without incurring data charges. These debates have led to the service being suspended in some of the countries where it had been previously introduced (India and Egypt). This map shows the current situation of Free Basics around the world: where the service was introduced and how countries are reacting to it.

Besides zero-rating services, telecoms also refer to ‘specialised services’ – such as HD video streaming that require higher bandwidths, or future e-health solutions – that may need to be offered and would require high quality and therefore special treatments.

In the meantime, the market has brought changes in the way the Internet works: in order to reduce transit costs and time, content providers have come closer to users by setting up Content Delivery Networks (CDNs) – caching servers placed close to regional Internet Exchange Point (IXP) hubs or within big regional telecoms. This has improved network performance and costs.

Network neutrality and human rights issues

The consequences of violating net neutrality principles are not only economic. The Internet has become one of the key pillars of modern society linked to basic human rights, including access to information,, health, and education, and freedom of expression. Endangering Internet openness could thereby impact fundamental rights.

In addition, the ability to manage network traffic based on origin or destination, on service or content, could give authorities the opportunity to filter Internet traffic with objectionable or sensitive content in relation to the country’s political, ideological, religious, cultural, or other values. This opens possibilities for political censorship through Internet traffic management.

Policy approaches of net neutrality

With the network neutrality debate, one of the major challenges regulators face is whether to act preemptively (ex-ante), in order to prevent possible breaches of the network neutrality principle, or to respond based on precedents (ex-post) once (and if ) the breach occurs. Another challenge that legislators and policymakers face is whether the problem should be dealt with, with ‘hard law’ – encoding the principles into legislation – or if ‘soft law’ (guidelines and policies) would be sufficient.

In the USA, the Federal Communications Commission (FCC) adopted, in 2015, a set of rules in favour of net neutrality. Entered into force in June 2015, the rules ban three practices seen as harming the open Internet: blocking of lawful content, applications, services or devices;  impairing or degrading lawful internet traffic on the basis of content, application, or service (throttling), and paid prioritisation of certain content, applications or services. Starting January 2017, when a new FCC chairman was appointed, there have been concerns that the net neutrality rules would undergo serious review.

At EU level, Regulation 2015/2120 sets out the obligation for providers of Internet access services to treat all traffic equally, when providing Internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used. The regulation also deals with the concept of ‘specialised services’, allowing operators to offer ‘services other than internet access services which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality’. The regulation was followed by a set of implementation guidelines, issued by the Body of European Regulators for Electronic Communications (BEREC).

Brazil, Chile, Slovenia, and the Netherlands protect net neutrality by national legislation. Norway, on the other hand, has chosen a soft-law approach, with the national regulatory authority issuing a set of guidelines for network neutrality (drafted in collaboration with various industry players and consumer protection agencies).

Events

Actors

(EBU)

In an environment increasingly characterised by digital convergence, the EBU is working on supporting its memb

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In an environment increasingly characterised by digital convergence, the EBU is working on supporting its members in their digital transformation processes, in promoting and making use of digital channels, and in identifying viable investment solutions for over-the-top (OTT) services. The organisation has a Digital Media Steering Committee, focused on ‘defining the role of public service media in the digital era, with a special focus on how to interact with big digital companies’. It also develops a bi-annual roadmap for technology and innovation activities, as well as a Strategic Programme on Broadcaster Internet Services, and it has a dedicated Project Group on OTT services.

(BEREC)

BEREC, as the body bringing together EU member states national regulatory authorities (NRAs) in the field of e

...

BEREC, as the body bringing together EU member states national regulatory authorities (NRAs) in the field of electronic communications, has been paying particular attention to the issue of net neutrality. Aspects tackled by BEREC in its policy documents include  transparency, competition issues, quality of service, quality monitoring and IP interconnection in the context of net neutrality. Moreover, the Body carried out an investigation into traffic management practices (in 2012, together with the European Commission), and published research on how consumers value net neutrality (2015). In 2016, BEREC adopted a set of guidelines on the implementation of EU net neutrality rules by NRAs.

(ITU, UIT)
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The ITU Telecommunication Standardization Sector (ITU-T) develops international standards (called recommendations) covering information and communications technologies. Standards are developed on a consensus-based approach, by study groups composed of representatives of ITU members (both member states and companies). These groups focus on a wide range of topics: operational issues, economic and policy issues, broadband networks, Internet protocol based networks, future networks and cloud computing, multimedia, security, the Internet of Things and smart cities, and performance and quality of service. The World Telecommunication Standardization Assembly (WTSA), held every four years, defines the next period of study for the ITU-T.

(CoE)

The Council of Europe has been actively involved in policy discussions on the issue of net neutrality.

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The Council of Europe has been actively involved in policy discussions on the issue of net neutrality. In 2010, the Committee of Ministers adopted a Declaration on network neutrality declaring its commitment to the principle of net neutrality. Later on, and in line with the Council’s Internet Governance Strategy, the Committee adopted a Recommendation on protecting and promoting the right to freedom of expression and the right to private life with regard to network neutrality, calling on member states to safeguard net neutrality in legal frameworks. Issues related to net neutrality and its connections with human rights are also tackled in events organised and studies conducted by the Council.

(ISOC)

The Internet Society approaches net neutrality largely from a user-centric perspective, and its work in this a

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The Internet Society approaches net neutrality largely from a user-centric perspective, and its work in this area focuses, among others, on: allowing freedom of expression, supporting user choice, and preventing discrimination. It also collaborates with businesses to develop solutions on issues such as network traffic management, pricing, and business models. Net neutrality also falls within the scope of the Internet Society’s research and capacity development activities. The organisation has produced several policy papers and other publications touching on aspects such as open inter-networking and zero rating. Its policy brief tutorial on net neutrality provides an overview of the key considerations, challenges, and guiding principles of net neutrality.

(EFF)

As a civil society organisation working on promoting the protection of human rights in the digital space, the

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As a civil society organisation working on promoting the protection of human rights in the digital space, the EFF has been advocating for the net neutrality principle through multiple activities. In the USA, for example, the EFF has been involved in several activities aimed at defending net neutrality and the regulation adopted by the Federal Communications Commission in 2015. In the EU, the organisation supported the savetheInternet.eu campaign, which advocated for strong net neutrality rules to be adopted by European regulators. In 2014, the EFF launched, together with other organisations for multiple countries around the world, a global coalition for net neutrality.

Resources

Publications

Internet Governance Acronym Glossary (2015)
The Economics of Zero Rating (2015)
An Introduction to Internet Governance (2014)

Papers

Zero-Rating: Kick-Starting Internet Ecosystems in Developing Countries (2015)

Reports

One Internet (2016)

GIP event reports

Platform and Data Neutrality – Access to Content (2018)

Other resources

Zero-rated Internet Services: What is to be Done? (2015)
Policy Brief: Access’ position on zero rating schemes (2015)
The Real Threat to the Open Internet is Zero-Rated Content (2014)

Processes

Session reports

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