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U.S. Fails to Offer Convincing Net Neutrality Policy

On December 21st, the U.S Federal Communications Commission (FCC) adopted a new order aimed at protecting Net neutrality. This is a first step. Unfortunately, the rules passed by the FCC suffer from serious flaws which make them ill-suited to protect the neutral and open nature of the Internet. As the European Commission continues to work on its report regarding Net neutrality, the U.S example shows the importance of adopting strong protections to prevent network operators from destroying an Internet ecosystem based on free speech and open innovation.

No Net neutrality for mobile

The FCC is profoundly undermining Net neutrality by refusing to mandate the same principle to fixed and wireless Internet access. While blocking any category of Internet traffic is prohibited on fixed networks, wireless access providers are only required to give access to all websites and abstain from blocking competing applications. This means that a whole set of Internet protocols (like P2P) can be blocked. But if an Internet access provider, be it fixed or wireless, blocks or throttles certain types of Internet traffic, then it should not be allowed to call its service an “Internet access service”. Because if operators throttle or block, they're just not giving access to the universal communications platform we all call the Internet.

Traffic prioritization will be possible

Another loophole lies in the lack of clarity surrounding traffic prioritization, which is the core of the issue. The FCC wants to prohibit "unreasonable discrimination". Presumably, the order will ban certain kinds of paid prioritization (whereby an online service provider pays an operator to benefit from enhanced access to end-users) and anti-competitive discrimination (when an operator tries to favor its own services over those of its competitors – think VOIP and Skype). But this still leaves access providers with the possibility of violating Net neutrality. They could for instance sell premium offers that would prioritize the traffic coming from or going to “first-rate” subscribers, which would be very harmful to equal opportunities for online participation1.

Also, regarding the development of managed or specialized services2 offered on the same networks as the public Internet, the FCC remains very tepid on the issue and fails to offer a regulatory framework ensuring that such services will not undermine the Internet. In his submission to the FCC, U.S law scholar John Palfrey had rightly suggested that regulators should ban managed services that a) could be offered over the public Internet; b) show clear characteristics of anticompetitive motivation; c) draw down bandwidth otherwise allocated for Internet access service; and d) if not handled as a Managed Service, might otherwise result in discriminatory consumer harm3. Unfortunately, the FCC falls short of being as wise as Prof. Palfrey on this crucial point.

Lack of enforcement power

Thirdly, FCC's adopted order can still face tough legal issues if Internet access providers challenge it in court. As a result, the things that the FCC got right in this order – like transparency ; ban on anti-competitive discriminatory practices ; presumptive misconduct for cases of paid prioritization – could end up being not applicable. Indeed, FCC's authority over the Internet is fiercely objected by operators who want to keep regulation to a minimum and maximize their profits. All this because the FCC took the absurd decision, back in 2002, to qualify broadband Internet as an information service (like cable TV) rather than a telecommunications service (like telephony services). As a consequence, a Washington D.C court said earlier this year that the FCC had no authority to mandate non-discriminatory network management practices to operators4. So at this point, it remains unclear how the order can be fully implemented. Many have argued in the past that the only way to adopt a meaningful Net neutrality policy was to reclassify broadband Internet as a telecommunications service, or enact a law giving the FCC competence in the field.

Policy-makers can do much better

What is clear however, is that the FCC order is disappointing for all the supporters of Net neutrality. The Internet must remain open and free for all citizens and innovators, and continue to benefit our democracies and economies. This can only be the case if operators follow a basic set of rules. That's why public authorities should adopt clear and imperative regulations to ban all traffic management practices that fail public-interest criteria (and only allow non commercial traffic management practices corresponding to approved engineering purpose, such as unforeseen congestion of security threat, preventing any form of artificial scarcity of bandwidth). Let's hope that, in the months ahead, US and EU policy-makers will take a more resolute stance to protect the openness of the Internet. We should all write to them to make sure they put the public interest first.

For more information

  • La Quadrature's submission to the European Commission's questionnaire on Net neutrality.
  • Open Letter sent to European Commissioner for the Digital Agenda, Mrs. Neelie Kroes
  • 1. In November 2009, Vodafone announced that it would launch such an offer in Spain: a few subscribers would get priority at the expense of all the others during congestion periods of Vodafone's 3G wireless network. With the FCC order, the same kind of discrimination could be extended to landline Internet. Address: Digital World, 20 November 2009, « L'abonnement 3G prioritaire de Vodafone indigne UFC-Que Choisir ». Address : http://www.digitalworld.fr/un-projet-abonnement-3g-prioritaire-de-vodafone,9724,a.html
  • 2. French regulator Arcep defines managed services as services providing access to content/services/applications through electronic means, marketed by the network operator which guarantees certain specific features thanks to the process it uses on the network it owns and operates. Some of the classic features include reliability rate, minimal latency, jitter (variation in time between packets), guaranteed bandwidth, security level, etc. According to the above definition, providing end users with access to the Internet does therefore not constitute a managed service.
  • 3. John Palfrey, “A Citizens’ Choice Framework for Net Neutrality”, November 3rd, 2010. Address: http://blogs.law.harvard.edu/palfrey/2010/11/03/a-citizens-choice-framework-for-net-neutrality/
  • 4. Edward Wyatt, “U.S. Court Curbs F.C.C. Authority on Web Traffic”, The New York Times, April 6th, 2010. Address: http://www.nytimes.com/2010/04/07/technology/07net.html