Net Neutrality at United Nations Internet Governance Forum 2013
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 sufficient
answers to many of the emerging issues”
• 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
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
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:
TELCOS SHOULD NOT BE
Or to be a lawyer:
“Allow only reasonable traffic management”
Or a brand marketeer:
“Don‟t be evil – and get caught”
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
• “I have 2 people threatening to kill me.”
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
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 12/2012
• UK ISPs throttled for over 12 years
• government doesn‟t care
• Enforcement easy if you approach it logically
Net neutrality laws 2013
15 May 2012 (S.7.4.a Telecoms Law)
Economic Communications Act 2012
Chile/Finland Universal access to „unfiltered‟ Internet
United States FCC Open Internet Order Sept „11
Co-regulation – 2009 agreement
CRTC rules 2009 (not implemented?)
ARCEP „Ten Principles‟
Slovenia Economic Communications Act 2012
• "net neutrality means that operators will have to send internet
traffic with uniform speed and permeability regardless of the
• 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”
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
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
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
Net Neutrality Worries in Strasbourg?
 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 12 Def2.
Marsden for CoE Committee of Experts
on Media Pluralism  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
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
first 2 months
2nd edition in
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
• 5500 regular visitors (esp. Washington and Brussels)
Toolsets/lessons for each approach
Self-declared with Ofcom:
Within coregulatory pact
NRA – advising
BITAG and OIAC
Very fast – first
Very slow –
Very fast –
Very slow – note
Act fast, get
Death by a 1000
Mobile DPI and
– legislative panic
Declaration: Neutrality 2009/140EC
The Commission attaches high importance to
preserving the open and neutral character of the
• 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
How to Monitor and Implement NN?
Ultimately impossible to check subtle non-neutrality
• Obvious cases of blocking (Madison River, European mobiles) and
• 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
Net Neutrality: European Approaches
• 2 elements separated:
• present net neutrality 'lite' debate
• the emerging net neutrality 'heavy'
• concerned with fibre access networks in future
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
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
• Open Internet Order legitimacy court case
• expected judgment now winter 2013
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!
FCC uses two advisory groups:  BITAG
• Broadband Industry Technical Advisory Group
• Set up by Dale Hatfield from Colorado in 2010
• Multi-stakeholder – techie-heavy
• 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)
 Open Internet Advisory Committee
• Co-regulatory: appointed by FCC in May 2012
• 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
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."
“Service is NOT a specialized service, and
is subject to the Order if:
 The service is a general service
e.g. a service like IP on which higher-level services can run,
 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."
Limits the reach of specialized services
that evade the Order
• "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:
•  impose FRAND conditions and
•  insist that slow service is NOT the 'real' Internet'?
• Marsden, C.  Pluralism in the Multi-Channel Television Market:
Suggestions for Regulatory Scrutiny, Council of Europe, MM-S-PL 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.  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  Assessing Indirect Impacts of the EC Proposals
for Video Regulation, TR-414 for Ofcom. Santa Monica: RAND
Marsden, C.  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.  Network Neutrality: A Research Guide Chapter 16 in
„Research Handbook On Governance Of The Internet‟, I. Brown, ed., Edward
Marsden, C.  Internet Co-Regulation and Constitutionalism: Towards
European Judicial Review, 26 Int. Rev. of Law, Computers & Tech 2. pp.212-228.
Marsden, C.  Regulating Intermediary Liability and Network Neutrality,
Chapter 15, pp701-750 „Telecommunications Law and Regulation‟ (Oxf, 4th ed)
Marsden, C.  Network Neutrality and ISP Liability Regulation: Are the Wise
Monkeys of Cyberspace Becoming Stupid? 2 Global Policy 1 pp.1-12
Marsden, C.  Regulating Code: Good Governance and Better Regulation in
the Information Age with Ian Brown, MIT Press: Cambridge MA. 312pp.