ICCR 2014, 29th September, Bonn.

Shane P McNamee, Forschungsstelle für Verbraucherrecht, Universität Bayreuth.

Coined by Columbia media law professor Tim Wu in 2003 as an extension of the longstanding concept of a common carrier,

Equal and undifferenciated transfer of all data (packets), independent of origin, content or application,

A neutral network is a dumb network, merely passing packets regardless of the applications they support. Lawrence Lessig,End-to-End-Principle,

Christopher Marsden proposes two main categories of net neutrality;

'positive' net neutrality, opposes where ISPs charge more for a better quality of service (QoS);

'negative' net neutrality, opposes where ISPs throttle or block certain services.

“Ten movies streaming across that, that Internet, and what happens to your own personal Internet? I just the other day got… an Internet was sent by my staff at 10 o'clock in the morning on Friday. I got it yesterday [Tuesday].

Why? Because it got tangled up with all these things going on the Internet commercially.”

‚Traffic Management‘ practices are a reaction to the a percievedor predicted overloading of networks due to data-intensive content such as HQ streaming or VoIP,

Problematic Measures Undertaken by ISPs

Blocking of data-intensive content,

Differenciating Quality of Service (QoS) for different types ofcontent or (business-facing) payment tiers,

Differing payment schemes (Congestion-Based Model), whichcan lead to a Two-Tiered Internet,

„Preferred Partners“, e.g. Comcast & Netflix,

Vertical Integration, e.g. Sky Broadband & Sky Streaming, Google & Google Hangouts,

Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (“Framework Directive”)

Main aim of which was to strengthen competition by making market entry easier and by stimulating investment in the sector,

Part of the “Telecommunications Package” along with;

Directive on the authorisation of electronic communications networks and services (the “Authorisation Directive”);

Directive on access to, and interconnection of, electronic communications networks and associated facilities (the “Access Directive”);

Directive on the universal service (the “Universal Service Directive”);

Directive on the processing of personal data (the “Privacy and Electronic Communications Directive”).

Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC),

Reforms implemented by BEREC alongside the national regulatory authorities (NRAs),

Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws,

The Telecoms Package review from 2007-2009 and reforms in 2009 updated the EU's position on net neutrality, phrased as a protection of an 'open' and 'neutral' internet, the Commission's December 2009 declaration on net neutrality; “high importance to preserving the open and neutral character of the Internet”,

Article 22(3) of the USD empowered NRAs to set a minimum QoS “to prevent the degradation of service and the hindering or slowing down of traffic over networks“,

Commission’s previous digital initiative, the buzzword-heavy 'i2010 - A European Information Society for growth and employment’, was replaced by 'A Digital Agenda for Europe', announced 19th of May 2010, one of the seven pillars of the 'Europe 2020' strategy.

June 2010, Commission’s first public consultation as part of the Digital Agenda initiative, specifically dealing with the issue of net neutrality (in fact explicitly used the term 'net neutrality' in its headline, rather than the usual mix of 'open' and 'free' used in much Commission work), covering;

◦ traffic management practices, prioritising of content, the level of competition between different ISPs and transparency and information requirements of the 2009 reforms.

Commission and the European Parliament joint summit 11th of November 2010 to discuss consultation responses. Through a mix of ideological differences and weighting of the arguments put forth in the responses the Parliament and Commission came to somewhat different conclusions, the Parliament favouring further regulation and protection of the idea of net neutrality and the Commission continuing with its monitoring and reporting approach.

Commission addressed this need for further information by instructing BEREC to investigate further into the areas of contention, as well as issuing another, more specific public consultation in 2012,

◦ BEREC findings showed that several fixed and mobile network and service operators applied some form of usage restrictions (blocking or degradation of some services) affecting a significant number of subscribers in Europe,

Parliament consistently called for stronger protection, but the Commission and some national regulatory authorities such as Ofcom in the UK adopted a “wait and see” approach,

October 20th, 2011, the “Industry” Committee of the EU Parliament unanimously voted for a resolution on net neutrality; later adopted as “European Parliament resolution of 17 November 2011 on the open internet and net neutrality in Europe”,

Dutch NRA went ahead and implemented stronger net neutrality protection; further afield Norway and Chile have done likewise,

Commission proposals in 2013; roaming charges, light protection of netneutrality,

Further Parliamentary proposals in Mar/Apr 2014; increasing protection of, and specifically defining, net neutrality,

Amendment 241:‘"net neutrality" means the principle that all internet traffic is treated equally, without discrimination, restriction or interference, independent of its sender, receiver, type, content, device, service or application;’.

This proposal was debated in the Council of the European Union on the 6th

of June 2014, the summary of which stating:

◦ Open Internet: several delegations underlined the need for the text to be future-proof and to be clear. For example, definitions of 'internet access service' and 'specialised service' should be clarified. In addition, the list of allowed traffic management measures was not considered satisfactory.

◦ While delegations agreed that the right balance needs to be struck between net neutrality and reasonable traffic management, they had different views on how to achieve it. The common underlying principles relating to net neutrality have yet to be agreed on.

New, centre-right, parliamentary make-up heralding a lighter regulatorytouch?

Much of the proposal deals with the limitation of blocking orthrottling, aspects of negative net neutrality,

Little indication of a move towards positive net neutrality, wherefast lanes are discouraged or even prohibited,

Fast lanes, or specialist/specialised services, seem explicitlyallowed,

Amendment 238 proposed an amendment to Recital 49, inserting clarifications regarding agreements with ISPs for enhanced quality of service that this should not interfere with the general quality of internet access or lead to discriminatory traffic management practices between competing services and applications,

Unclear wording regarding services, what constitutesinterference with quality and distinction between consumer-facing and business-facing are unhelpful,

FCC and their Open Internet Order, challenged by Verizon, Verizon v. Federal Communications Commission,

FCC previously classified broadband providers under Title I of the Communications Act of 1934, as “information services” rather than “communications services” the court ruled that the FCC had relinquished its right to regulate them like common carriers,

April 23, 2014, FCC considered permitting ISPs to offer content providers a faster track to send content, thus reversing their earlier position,

May 15, 2014, FCC decided to consider two options regarding Internet services: permit fast and slow broadband lanes, two-tiered internet; or, reclassify broadband as a telecommunication service,

In May 2014, Google, Facebook, and 100s of other online companies wrote to the FCC in defence of net neutrality,

Most recently the 10th September Internet Slowdown organised by www.battleforthenet.com and encouragement to email Congress,

Supported by Reddit, KickStarter, Wordpress, Netflix (ironically), and ClickHole;

Ed Richards, Ofcom chief executive: "We don't think we should bring it over from the US lock, stock and barrel. We have quite often got more competitors in Europe than in the US."

Santander Telecoms Summit in Spain, 1st September 2014; “Network Neutrality was invented by those who don’t want neutrality”, Cesar Alierta, CEO Telefonica,

Call for more regulation of Google, Facebook, etc.; less regulation of telecoms; allowing consolidation to fewer, bigger companies (US-style oligopoly?),

Neelie Kroes, European Commissioner for Digital Agenda, “My advice to telcos is to be contructive”, net neutrality inevitable,

Results of EU negotiations or even interest of new EU Parliamentremains to be seen,

Age old question of whether regulation with increase competitionor stifle innovation,

Important for any proponent of net neutrality to take a reasoned approach, acknowledging the necessity for traffic management and the possible benefits of specialist high speed internet services,

Heeding the words of Tim Berners-Lee that the unregulated, unmanaged, completely free internet in fact never existed;

◦ Net neutrality is this: If I pay to connect to the Net with a certain quality of service, and you pay to connect with that or greater quality of service, then we can communicate at that level. That’s all. It’s up to the ISPs to make sure they interoperate so that that happens. Net Neutrality is NOT asking for the Internet for free. Net Neutrality is NOT saying that one shouldn’t pay more money for high quality of service. We always have, and we always will.

Shane Patrick McNamee,Research Fellow,Forschungsstelle für Verbraucherrecht,Universität Bayreuth.Email: ShaneMcNamee@uni-bayreuth.deTwitter: @McNameeShaneWebsite: www.TheUndisciplined.com