NET NEUTRALITY:
PAST, PRESENT, FUTURE
Professor Chris Marsden @ChrisTMarsden
IGF Nusa Dua: 26 October 2013
ISOC‟s latest word on net neutrality?
• “Competition law is a key aspect of network

neutrality debate and can provide suf...
Try transparency and switching
• It‟s a mirage – more you try, more you fail

• Ofcom in UK spent 6 years trying to increa...
UK late developer: very low 2006 speeds
All ISPs have incentives to discriminate
• Don‟t fall into trap of assuming dominance

• Or worse, collective dominance
• ...
TELCOS SHOULD NOT BE
OVERTLY NAUGHTY
AGAINST USERS
Or to be a lawyer:
“Allow only reasonable traffic management”
Or a bran...
Corporate surveillance, civil resistance
Charlie Dunstone, Chairman, TalkTalk
• Ofcom International Conference, 2006
• “We shape traffic to restrict P2P users.
• “...
Western Europe should have no problem
• Fixed traffic growth is low and manageable

• 17% CAGR 2012-2017
• Way below histo...
MNO entrants lower data prices than duopolists
We‟re only starting to implement NN
• Netherlands 2012 law not enforced so far

• Slovenia more interesting – law of 12/20...
Net neutrality laws 2013
Country

Legal Approach

Netherlands

15 May 2012 (S.7.4.a Telecoms Law)

Slovenia

Economic Comm...
Slovenia Economic Communications Act 2012
• http://www.scribd.com/doc/144614369/Slovenia-Net-Neutrality-law-2012

• "net n...
50 ways to throttle your user
• Who should [a] discover [b] regulate NN?

A. Discovery by researchers on behalf of govt
• ...
All regulators can
find breaches
Can developing countries afford NN?
• You can‟t afford not to!

• You have sold GSM licences much too cheap
• You don‟t ha...
It all began in 1999 – last millenium…
• Based on cable „walled garden‟ fears
• Mergers: cable TV/broadband companies
• AT...
Net Neutrality Worries in Strasbourg?
[1999] Pluralism in the Multi-Channel Television Market:
• Suggestions for Regulator...
Marsden for CoE Committee of Experts
on Media Pluralism [99] S.5.1
• the phenomenon of convergence in the form of integrat...
24 May 1999: Section 5.1
• “AOL, WorldCom and other Internet companies again

• urged federal authorities to bar cable ope...
Book launched
February 2010
100,000
downloads
first 2 months

2nd edition in
paperback 2015

22
Glasnost initial results
Net neutrality will grow and grow
• 1st Internet Science conference Brussels 10-11 April 2013
• Professor Ziga Turk, minis...
Answers? Good questions?
Comments? Questions?
• @ChrisTMarsden
• C.Marsden@sussex.ac.uk
• http://chrismarsden.blogspot.co.uk/
• 5500 regular visito...
Toolsets/lessons for each approach
Norway

UK

Netherlands

US

Measurement

Self-declared with Ofcom:
verification?
SamKn...
Declaration: Neutrality 2009/140EC
The Commission attaches high importance to
preserving the open and neutral character of...
How to Monitor and Implement NN?
Ultimately impossible to check subtle non-neutrality
• Obvious cases of blocking (Madison...
Net Neutrality: European Approaches
• 2 elements separated:
• present net neutrality 'lite' debate
• and
• the emerging ne...
US FCC Order 2011, challenge 2013
• FCC Report and Order (2010) Preserving the Open Internet,
• 25 FCC Rcd 17905
• FCC Rep...
Verizon v. FCC, Case No: 11-1356
D.C. Circuit Court of Appeals
• FCC Order: In the Matter of: Preserving the Open

Interne...
Special and Managed Services
• FCC excludes Quality of Service
• Private „managed‟ or „specialized‟ services
• IPTV, VOIP,...
FCC uses two advisory groups: [1] BITAG
• Self-regulation:
• http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032233

•...
[2] Open Internet Advisory Committee
• Co-regulatory: appointed by FCC in May 2012
• http://www.fcc.gov/document/open-inte...
Working assumptions - require case
studies to flesh out their details:
• "Specialized services is a term that is
• meaning...
“Service is NOT a specialized service, and
is subject to the Order if:
[1] The service is a general service
e.g. a service...
Limits the reach of specialized services
that evade the Order
Example:
• "If [a DSL or cable ISP] decided to offer a “poor...
• Marsden, C. [1999] Pluralism in the Multi-Channel Television Market:
•
•
•

•
•
•

•
•
•

Suggestions for Regulatory Scr...
Net Neutrality at United Nations Internet Governance Forum 2013
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Net Neutrality at United Nations Internet Governance Forum 2013

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My presentation at Dynamic Coalition on Net Neutrality - explaining the myths of net neutrality, legal framework and the US approach towards definitions of specialized services.

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Net Neutrality at United Nations Internet Governance Forum 2013

  1. 1. NET NEUTRALITY: PAST, PRESENT, FUTURE Professor Chris Marsden @ChrisTMarsden IGF Nusa Dua: 26 October 2013
  2. 2. ISOC‟s latest word on net neutrality? • “Competition law is a key aspect of network neutrality debate and can provide sufficient answers to many of the emerging issues” • http://www.internetsociety.org/igf-daily-highlight-%E2%80%93-23-october-2013 • No it‟s not and no, it can‟t! • Net neutrality responds to a layers problem: • All ISPs need to manage traffic and • several claim to be deluged with video on HTTP
  3. 3. Try transparency and switching • It‟s a mirage – more you try, more you fail • Ofcom in UK spent 6 years trying to increase both • Desperate attempt to portray as „self-regulation‟ • It‟s really co-regulation • Results: severely throttled compared to US • UK users: • very low upload speeds • See Cooper (2013) on ssrn.com
  4. 4. UK late developer: very low 2006 speeds
  5. 5. All ISPs have incentives to discriminate • Don‟t fall into trap of assuming dominance • Or worse, collective dominance • Ever tried to prove oligopoly? • Simple ground rules for what is acceptable • So let‟s re-phrase definition:
  6. 6. TELCOS SHOULD NOT BE OVERTLY NAUGHTY AGAINST USERS Or to be a lawyer: “Allow only reasonable traffic management” Or a brand marketeer: “Don‟t be evil – and get caught”
  7. 7. Corporate surveillance, civil resistance
  8. 8. Charlie Dunstone, Chairman, TalkTalk • Ofcom International Conference, 2006 • “We shape traffic to restrict P2P users. • “I get hate mail at home from people • when that means we restrict their ability to play games. • “I have 2 people threatening to kill me.”
  9. 9. Western Europe should have no problem • Fixed traffic growth is low and manageable • 17% CAGR 2012-2017 • Way below historic growth rates 30-40% • Even mobile forecasts are falling off a cliff • Lots of Wifi hand-off – ask BBC
  10. 10. MNO entrants lower data prices than duopolists
  11. 11. We‟re only starting to implement NN • Netherlands 2012 law not enforced so far • Slovenia more interesting – law of 12/2012 • UK ISPs throttled for over 12 years • government doesn‟t care • Enforcement easy if you approach it logically
  12. 12. Net neutrality laws 2013 Country Legal Approach Netherlands 15 May 2012 (S.7.4.a Telecoms Law) Slovenia Economic Communications Act 2012 Chile/Finland Universal access to „unfiltered‟ Internet United States FCC Open Internet Order Sept „11 Norway Co-regulation – 2009 agreement Canada CRTC rules 2009 (not implemented?) Japan, UK France Self-regulation unenforced ARCEP „Ten Principles‟
  13. 13. Slovenia Economic Communications Act 2012 • http://www.scribd.com/doc/144614369/Slovenia-Net-Neutrality-law-2012 • "net neutrality means that operators will have to send internet traffic with uniform speed and permeability regardless of the content” • ISPs prevented from restricting, or slowing Internet traffic • except to solve congestion, security or addressing spam. • Commercial differentiation of QoS will be prohibited. • ISP prohibited from different connectivity prices • strong impact on mobile operators “data caps”
  14. 14. 50 ways to throttle your user • Who should [a] discover [b] regulate NN? A. Discovery by researchers on behalf of govt • Geeks can help lawyers to find blocking/discrimination • But only where it‟s widespread/obvious – e.g. Skype B. Regulation by telco NRAs • Trained to remember their legal function to protect • freedom of expression and user privacy • Strangely forgetful of their constitutional functions C. Enforcement with appeal to courts • As with all other telecoms law
  15. 15. All regulators can find breaches
  16. 16. Can developing countries afford NN? • You can‟t afford not to! • You have sold GSM licences much too cheap • You don‟t have competition – duopoly or 3-way • You don‟t have fixed line alternative • NN or bust? • Mobile „Internet‟ becomes a joke without NN • That‟s all your digitally divided have to connect
  17. 17. It all began in 1999 – last millenium… • Based on cable „walled garden‟ fears • Mergers: cable TV/broadband companies • AT&T/MediaOne and AOL/TimeWarner • Lessig and Lemley FCC submission: • „The end of End-to-End‟ • Before „Code and Other Laws…‟ • Fear of closed duopoly model
  18. 18. Net Neutrality Worries in Strasbourg? [1999] Pluralism in the Multi-Channel Television Market: • Suggestions for Regulatory Scrutiny • Council of Europe Human Rights Commission, • Mass Media Directorate, Strasbourg, France • MM-S-PL [99]12 Def2.
  19. 19. Marsden for CoE Committee of Experts on Media Pluralism [99] S.5.1 • the phenomenon of convergence in the form of integration of programming and technical bottleneck facilities – is driving this market phenomenon. • In the case of Sky and AOL, it is content allied to control of the browser, the „first screen‟; • in the case of Microsoft, • it is the browser operating system allied to the distribution platforms of cable companies
  20. 20. 24 May 1999: Section 5.1 • “AOL, WorldCom and other Internet companies again • urged federal authorities to bar cable operators striking exclusive deals on high-speed Internet service • Internet providers want to be sure that • consumers will enjoy the same open access to their services via cable networks that they now have over phone lines...”
  21. 21. Book launched February 2010 100,000 downloads first 2 months 2nd edition in paperback 2015 22
  22. 22. Glasnost initial results
  23. 23. Net neutrality will grow and grow • 1st Internet Science conference Brussels 10-11 April 2013 • Professor Ziga Turk, minister in charge of Slovenian law • Alissa Cooper, member of FCC OIAC sub-group • Carl-Christian Buhr, advisor to Neelie Kroes • UK, French and Dutch technical engineering experts
  24. 24. Answers? Good questions?
  25. 25. Comments? Questions? • @ChrisTMarsden • C.Marsden@sussex.ac.uk • http://chrismarsden.blogspot.co.uk/ • 5500 regular visitors (esp. Washington and Brussels)
  26. 26. Toolsets/lessons for each approach Norway UK Netherlands US Measurement Self-declared with Ofcom: verification? SamKnows Consumers e.g. Glasnost/Neubot/ BitsofFreedom FCC: SamKnows Technical advice Within coregulatory pact Broadband Stakeholder Group coregulation NRA – advising ministry BITAG and OIAC self/co-regulation Legal position Co-regulation Not implemented 2009/136/EU Implemented 2009/136/EU Order December 2010, published Sept.2011 Efficiency Very fast – first mover Very slow – industry foot dragging Very fast – legislative panic Very slow – note court delay Lesson Act fast, get stakeholder buyin Death by a 1000 cuts; deny-delaydegrade; significant political damage Mobile DPI and blocking prompted action – legislative panic Lack of bipartisanship causes trench warfare
  27. 27. Declaration: Neutrality 2009/140EC The Commission attaches high importance to preserving the open and neutral character of the Internet, • taking full account of the will of the co-legislators • to enshrine net neutrality as a policy objective and • regulatory principle to be promoted by NRAs
  28. 28. How to Monitor and Implement NN? Ultimately impossible to check subtle non-neutrality • Obvious cases of blocking (Madison River, European mobiles) and seeding (Comcast) • Less obvious: degrading YouTube (Free, Orange France) Not at all obvious: interconnection between Tier 1 • Agreed: you only know they‟re degrading you when they can advertise it to others as a „selling point‟ How can national regulators decide what is „reasonable‟? • Issue for all regulators post-2014
  29. 29. Net Neutrality: European Approaches • 2 elements separated: • present net neutrality 'lite' debate • and • the emerging net neutrality 'heavy' • concerned with fibre access networks in future
  30. 30. US FCC Order 2011, challenge 2013 • FCC Report and Order (2010) Preserving the Open Internet, • 25 FCC Rcd 17905 • FCC Report and Order, In The Matter Of Preserving The Open Internet And Broadband Industry Practices, • GN Docket No. 09-191, WC Docket NO. 07-52, FCC 10-201 § 21-30 • Published 22 Dec 2010, appeared Federal Register 23 Sept 2011 • In Re: FCC, In the Matter of Preserving the Open Internet, Report and Order, FCC 10-201, 76 Fed. Reg. 59192 (2011), • Consolidation Order - Judicial Panel on Multidistrict Litigation, Oct. 6, 2011 • http://commcns.org/sOFyyT
  31. 31. Verizon v. FCC, Case No: 11-1356 D.C. Circuit Court of Appeals • FCC Order: In the Matter of: Preserving the Open Internet; Broadband Industry Practices • (rel. Dec. 23, 2010) • FCC 10-201; GN Docket No. 09-191; WC Docket No. 07-52 • Petition for Review filed September 30, 2011. • 2011 Order consolidates case numbers 11-1356, 11-1403, 11-1404, and 11-1411 with lead case number 11-1355 • Open Internet Order legitimacy court case • expected judgment now winter 2013
  32. 32. Special and Managed Services • FCC excludes Quality of Service • Private „managed‟ or „specialized‟ services • IPTV, VOIP, emergency calls and telemedicine • These use the IP pipe, but a reserved section • How big is the private pipe? 10% or 90% • Who gets access? Anyone who pays? • Or only those „preferred partners‟ to ISPs? • Do you only see certain IPTV channels? • Its making part of the pipe back into cable!
  33. 33. FCC uses two advisory groups: [1] BITAG • Self-regulation: • http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032233 • Broadband Industry Technical Advisory Group • Set up by Dale Hatfield from Colorado in 2010 • Multi-stakeholder – techie-heavy • http://www.bitag.org/bitag_organization.php?action=history • Takes on test cases from 2012 as no referred cases • Handles FCC cases free of charge • Industry pays $60,000 per case (if there were any)
  34. 34. [2] Open Internet Advisory Committee • Co-regulatory: appointed by FCC in May 2012 • http://www.fcc.gov/document/open-internet-advisory-committeemembers-announced • Chair: Jonathan Zittrain (Harvard Law), • Vice-chair David Clark (MIT/IETF/engineer) • Multi-stakeholder – includes NGOs and industry • 'Specialized Services' definitions sub-group • When can a managed service lane be partitioned out of the regular open IP stream?
  35. 35. Working assumptions - require case studies to flesh out their details: • "Specialized services is a term that is • meaningful only within context of the Order. • It is a way to talk about “anything else” • that is IP-based over a physical access path. • It is NOT a new category of service • for which a class of regulation is applicable."
  36. 36. “Service is NOT a specialized service, and is subject to the Order if: [1] The service is a general service e.g. a service like IP on which higher-level services can run, [2] It reaches most… of end-points of the Internet As opposed to a specific “user-level” service like telephony or home security, which is presumably a specialized service • E.g. one cannot evade the Order • by offering an Internet-like service • that cannot reach a small country somewhere."
  37. 37. Limits the reach of specialized services that evade the Order Example: • "If [a DSL or cable ISP] decided to offer a “poor” Internet service, would we view this as: • “Better than nothing or unacceptably slow[?] Perhaps they can call it Internet but not broadband? • Do we: • [1] impose FRAND conditions and • [2] insist that slow service is NOT the 'real' Internet'?
  38. 38. • Marsden, C. [1999] Pluralism in the Multi-Channel Television Market: • • • • • • • • • Suggestions for Regulatory Scrutiny, Council of Europe, MM-S-PL [99]12 Def2. Lemley and Lessig (2001) The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era, UCLA L. REV. 48: 925 Marsden, C. [2005] Contribution to Impact Assessment of the revision of the Television Without Frontiers Directive, with E. Horlings, C. Van Oranje, M. Botterman, TR-334-EC DGJS Santa Monica: RAND Marsden, C. and J.Cave [2006] Assessing Indirect Impacts of the EC Proposals for Video Regulation, TR-414 for Ofcom. Santa Monica: RAND Marsden, C. [2008] Net Neutrality: The European Debate 12 Journal of Internet Law 2 pp1, 7-16 Marsden, C. (2010) Net Neutrality – Towards a Co-Regulatory Solution? Bloomsbury Academic Marsden, C. [2013] Network Neutrality: A Research Guide Chapter 16 in „Research Handbook On Governance Of The Internet‟, I. Brown, ed., Edward Elgar. Marsden, C. [2012] Internet Co-Regulation and Constitutionalism: Towards European Judicial Review, 26 Int. Rev. of Law, Computers & Tech 2. pp.212-228. Marsden, C. [2012] Regulating Intermediary Liability and Network Neutrality, Chapter 15, pp701-750 „Telecommunications Law and Regulation‟ (Oxf, 4th ed) Marsden, C. [2011] Network Neutrality and ISP Liability Regulation: Are the Wise Monkeys of Cyberspace Becoming Stupid? 2 Global Policy 1 pp.1-12 Marsden, C. [2013] Regulating Code: Good Governance and Better Regulation in the Information Age with Ian Brown, MIT Press: Cambridge MA. 312pp.
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