This book explains the beginnings of net neutrality regulation in the United States and Europe, and some of the current debate over access to Specialised Services: fast lanes with higher Quality of Service (QoS). It examines the new European law of 2015 and the interaction between that law and interception/privacy. The book takes a deep dive into UK self- and co-regulation of net neutrality. In each of the national case studies, initial confusion at lack of clarity in net neutrality laws gave way to significant cases, particularly since 2014, which have given regulators the opportunity to clarify their legislation or regulation. The majority of such cases relate to mobile net neutrality, and in particular so-called 'zero rating' practices. The book compares results and proposes a regulatory toolkit for those jurisdictions that intend effective practical partial or complete implementation of net neutrality. It sets out a future research agenda for exploring implementation of regulation. The book outlines competition policy's purpose, referring to the exceptionally rigorous recent analysis of competition law suitability to regulate net neutrality by Maniadaki. Having analysed regulatory tools with little chance of success, it then examines what communications regulators actually do: regulating telecoms access based on the UK case study. The book considers whether zero rating poses a serious challenge to Open Internet use. It explores some of the wider international problems of regulating the newest manifestation of discrimination: zero rating. The book also considers the various means by which government can regulate net neutrality.
This chapter outlines competition policy's purpose, referring to the exceptionally rigorous recent analysis of competition law suitability to regulate net neutrality by Maniadaki. Maniadaki skilfully establishes the limits of competition law to date, as well as offering the possibilities to extend that corpus of legal application to make it more relevant for dynamic digital services. The chapter examines what communications regulators actually do: regulating telecoms access based on the UK case study. It also examines first UK appeals against regulatory decisions, then those at European level. The chapter considers the possibility of platform neutrality or some other form of platform regulation. It also considers the competition law as a net neutrality tool and platform regulation. The chapter assesses the possibilities of behavioural regulation to overcome some of the consumer detriments identified in nascent net neutrality regulation, and the wider use of behavioural 'nudge regulation' in Internet policy.
Net neutrality is a policy of Internet non-discrimination based on innovation, free speech, privacy and content provider commercial self-interest, imposed on the technocratic economic regulation of telecommunications (telco) local access networks. Internet access is a very special communications service, recognised and reinstated in the US in 2015 as common carriage after a strange 11-year experiment with deregulation. 'Open Internet' legislation has been passed in the European Economic Area (EEA) via European Union (EU) Regulation 2015/2120 of 25 November 2015, and has been regulated in the United States via the Open Internet Orders of 2010 and 2015. Collaboration between socio-legal scholars, senior computer scientists and economists is essential to serious investigation of network neutrality. Such intensive collaboration enhances much well-meaning law and humanities work in examining Internet law and telecommunications regulation, in such areas as behavioural advertising regulation and the implications of widespread commercial deployment of Deep Packet Inspection (DPI).
US regulation of network neutrality has a history dating back to 1999, and was introduced via merger conditions placed on major Internet Access Providers (IAPs). One of the several principles of network neutrality promulgated by both the Federal Communications Commission (FCC) and European Commission in 2009/10 is that only 'reasonable network management' is permitted, and that the end user be informed of this reasonableness via clear information. This chapter explores European legislative and regulatory responses to net neutrality in more detail. The European law proposed in 2013 was being rapidly overtaken by events in the Netherlands, France, Slovenia and Finland. The chapter explains that at European Member State level, only Netherlands, Finland and Slovenia had passed laws by the end of 2014. It summarises the outcome of 2014/15 legal manoeuvres in both the United States and European Union. In 2016 zero rating was becoming a common practice in the US.
This chapter offers some elements that may be suitable as a toolkit for regulators to respond to net neutrality concerns. Net neutrality regulation is a blunt telecom regulatory instrument for a multifaceted problem such as Internet access, which also includes the policy issues as privacy and free expression, and universal access and many Millennium Development Goals. There are two types of net neutrality regulation: 'lite' and heavy. The former prevents Internet Access Providers (IAPs) from banning or throttling other content, application and service providers; the latter dictates non-discrimination on fast lane broadband, known as Specialised Services. United Nations policy documents remain generalist and somewhat naive, playing catch-up with telecoms regulation in developed nations. The case studies have provided a variety of responses to net neutrality violation in practice, with zero rating as the main concern in 2016.
This chapter critically examines the relatively few examples of regulatory implementation of network neutrality enforcement at national level outside the European Economic Area (EEA) examples of Norway, Slovenia and the Netherlands. It draws on co-regulatory and self-regulatory theories of implementation and capture, and interdisciplinary studies into the real-world effect of regulatory threats to TMP. This involved appropriate fieldwork to assess the true scope of institutional policy transfer. The chapter also focuses on four case studies, beginning with the earliest effective regulation in Chile, followed by Brazil, India, and Canada. The chapter summarises each nation's development of net neutrality, and focuses on its implementation of regulation against zero rating since 2014. Zero rating is only possible when users take an Internet Access Provider (IAP) subscription which has a data cap, which is generally at a much lower limit when imposed by mobile rather than fixed IAPs.
This chapter first considers the 2013 Proposal and Trilogue in 2014/15, then the 2015 Regulation's net neutrality aspects, before finally looking at the details of Body of European Regulators of Electronic Communications' (BEREC) implementation of its Guidelines. BEREC explains its outstanding concern on four topics: traffic management practices; Specialised Services; transparency in Internet access quality; and 'commercial practices', such as zero rating. European law upheld transparency on a mandatory basis, and minimum Quality of Service (QoS) on a voluntary basis, under provisions in the 2009 electronic communications framework. After more than two years of gestation, on 27 October 2015 the net neutrality law was approved by the European Parliament. Rather than unequivocally affirming the pillars of net neutrality, the EU policymakers enshrined only the first two components into the Regulation, thus tempering neutrality into a less principled vague 'Open Internet'.
Internet Access Providers (IAPs) have been acting as the fabled 'three wise monkeys' in relation to Internet content liability since the dawn of the commercial Internet. IAP practices have been highly deceptive in places, blocking content for specific anti-competitive and non-specific traffic management purposes. IAP routers can look inside a data packet to 'see' its content, via Deep Packet Inspection (DPI). This chapter aims to place interception in the regulatory context, to explore net neutrality as a form of 'medium law' as well as the policy implications of the Edward Snowden leaks and other recent developments. It deals with the British Telecom (BT) and Phorm experiments of 2006-2008, the UK government's encouragement of such illegal activities and the European Commission's responses that forced amendment to UK e-privacy law in 2012. The chapter assesses the evidence base for future privacy legislation affecting IAPs, and the European Commission (EC) 'Platform Regulation' consultation.
UK network neutrality policy is influenced both by its regulator, Ofcom, and its particular and unique network topology. In contrast to that historical commitment to an Open Internet, the UK pursued a Traffic Management Practices (TMP) Transparency Code 2011 and an Open Internet Code of Practice 2012. The chapter describes the slow progress towards a Code of Practice for greater transparency under the auspices of the government-industry partnership, Broadband Stakeholders Group (BSG). Internet Access Providers (IAPs) had been persuaded by Ofcom to sign a code of conduct on advertising broadband speed and congestion in 2008, though this was inadequate and was then replaced by the BSG Code from 2011-2013. The chapter includes in Ofcom's functions the 'desirability of promoting': purposes of public service television broadcasting; competition in relevant markets; and facilitating the development and use of effective forms of self-regulation.
Network neutrality is only the latest phase of an eternal argument over control of communications media. This chapter focuses on three areas. The first is the 'zettaflood' of video over the Internet, the dominant form of consumer Internet traffic according to all reliable traffic measurement surveys. The second is the use of consumer Internet connections by many workers, especially in high-technology-associated industries - the 'consumer' is not easily separated from the homeworker. This is critical when considering that productivity growth in the struggling Western economies is enabled by information communication technology (ICT). The final element is Internet interconnection itself and Specialised Service (SpS) competition with Content Delivery Networks (CDNs). Before exploring why and how discrimination can affect users, it is important to slaughter the zettaflood myth: Internet data traffic is growing at historically low levels. The chapter discusses the minimum Universal Service Obligation (USO) to prevent 'dirt roads'.