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News and Analysis

Originating in the US, net neutrality is now actively debated in Europe, Latin America and Asia. Provisional rulings by regulators have been proposed in US, Europe, Canada and Chile. Japan, Korea and other Asian markets are also watching the issue.

Europe

As part of the 2009 EU telecoms reform package, the European Commission committed to preserving the open and neutral character of the internet and laid down net neutrality as a policy objective and regulatory principle to be promoted by national regulatory authorities.

This is supported by the following provisions:

  • Consumers have to be informed about conditions limiting access to and/or use of services and applications and about applied traffic management techniques and their influence on service quality.
  • National regulators – after consulting the Commission – have the power to intervene by setting minimum quality of service requirements for network transmission services to guarantee a robust level of quality of service.

In April 2011, in its Communication on the Open Internet and Net Neutrality in Europe, the European Commission concluded that no further regulatory steps were necessary. It considered it important to allow sufficient time for the relevant provisions of the EU 2009 regulatory framework for electronic communications to take effect and to see how they would operate in practice.

However the Commission remained committed to monitoring the impact of market and technological developments to assess the need for further regulatory intervention to achieve competition and more choice for consumers.

For this reason, the Commission, with the aid of the Body of European Regulators for Electronic Communications (BEREC), is currently exploring the key areas of net neutrality, in particular, barriers to switching, blocking practices, throttling and commercial practices with equivalent effect, transparency and quality of service, as well as the competition issues relating to net neutrality.

Furthermore, in October BEREC launched a public consultation on draft Guidelines on Net Neutrality and Transparency: Best Practices and Recommended Approaches.

The GSMA response can be found is available online:

GSMA Europe response to the BEREC Public Consultation on Draft Guidelines for Transparency and Net Neutrality – 02 November 2011

Worldwide

Chile

Chile passed its law on 14 July 2010. Telecommunications law No.20,453 is a modification of the existing telecoms law which states internet service providers will not be able to arbitrarily block, interfere, discriminate, manipulate or restrict content or applications of legal services that users access on their networks.  Chile’s law is heavily focused on end-user protection through transparency, parental control and implementation of security measures to ensure privacy and virus protection.

It intends to protect other entities in the value chain by prohibiting the service provider to interfere, discriminate with content, applications or service unless it is to ensure the privacy of users, virus protection and security of the network.

The law primarily refers to the internet service provider and does not suggest any difference or adjustment in the law to mobile internet service providers.

Summary of the law:

  • Transparency – The law requires the operator to publish on its website all information related to the characteristic of the connection such as speed, link quality, differentiating between national and international connections, as well as the nature and guarantees of the service.
  • Traffic management: Internet service providers are allowed to manage traffic and administer their network. However traffic management and network administration must not be used to affect the levels of service engaged by the respective user.
  • Parental control: Operators should provide, at the expense and request of the customer parental control for content that is against the law, morality or decency, as long as the user is informed in advance.
  • Fair treatment of content and virus protection: While the regulation states that operators may manage traffic for specific scenarios, it also requires them to treat data without discrimination and protect the network and end-user from virus attack and ensure privacy.

United States

On 21 December 2010 the Federal Communications Commission (FCC) released three rules for an open internet:

  • Transparency
  • No blocking
  • No unreasonable discrimination

These laws were published in the Federal Register on 22 September 2011 and will came into effect on 20 November 2011.

  • Transparency: Common to mobile and fixed broadband, service providers must disclose their network management practices. Service providers are required to disclose specific practices including, descriptions of congestion management techniques; types of traffic subject to practices; purposes served by practices; practices’ effects on end users’ experience; criteria used in practices, such as indicators of congestion that trigger a practice, and the typical frequency of congestion; usage limits and the consequences of exceeding them; and references to engineering standards, where appropriate.
  • No blocking: Fixed broadband providers may not block lawful content, applications, services, or non-harmful devices; mobile broadband providers may not block lawful websites, or block applications that compete with their voice or video telephony services; and
  • No unreasonable discrimination: Fixed broadband providers may not unreasonably discriminate in transmitting lawful network traffic.

The rules set a slight difference between the fixed broadband service providers and mobile broadband service providers.

Fixed broadband service providers shall not block lawful content, applications, services, or non-harmful devices, subject to reasonable network management, while the same blocking rule permits mobile broadband service providers to reasonably manage traffic.

Additionally, a mobile broadband service provider may not block applications that compete with the provider’s voice or video telephony services, subject to reasonable network management. The rules are in line with Dutch and Chilean laws that prevent discrimination of lawful data.

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