BEREC net neutrality Marsden 24 February 2016

BEREC Net Neutrality consultation:
NOT business as usual
Prof Dr Chris Marsden
University of Sussex
@ChrisTMarsden
www.chrismarsden.blogspot.com
2/24/2016BEREC not for citation or publication

Background: Internet Science, RAND,
ITC UK, WorldCom, start-ups
 Net Neutrality: Towards a Co-regulatory Solution
 Bloomsbury, 2010
 Net Neutrality: From Policy to Law to Regulation
 Manchester UP, 2016
 Regulating Code (with Prof. Ian Brown)
 MIT Press, 2013
 Network Neutrality:
A Research Guide
Handbook Of Internet Research
 Internet Co-regulation
 Cambridge UP, 2011
 Bibliography of Internet Law
 Oxford UP, 2012

Prior art....

The Internet: for everyone

Regulatory Toolkit: which mix of economics,
engineering, behavioural & evolutionary
neuroscience (‘nudges’ & groups), human rights law?

Illustration of user choice

 Has telecoms developed
as fast and free?
 UCL tests 1.125Tb/s
 You get 1/1,000,000th of
that?
Innovation in
PC hardware

Universal Service? UHDTV 15Mb/s

Nothing in regulation is new

BEREC work to August 2016

Four weeks’ consultation in July –
what process amends guidelines?
 “scarcely two months to evaluate and incorporation of potentially
thousands submissions in several languages,
 an extraordinary plenary then votes on the finished document”
 https://netzpolitik.org/2016/netzneutralitaet-wie-es-jetzt-weiter-geht/
 Wrong –actually ONE month. London & Oslo, how’s your Slovenian?

 “4million people participated in FCC consultation
 In India, there were over one million people,
 arguably greatest direct democratic participation
movements in history, for an internet issue .
 BEREC consultation finishes after twenty days
 making it the shortest of the three.”
 https://translate.google.co.uk/translate?sl=auto&tl=en&js=y&prev=_t&hl=
en&ie=UTF-
8&u=https%3A%2F%2Fnetzpolitik.org%2F2016%2Fnetzneutralitaet-wie-es-
jetzt-weiter-geht%2F&edit-text=&act=url
 Students are on holiday in July – good timing?
Or millions…?

Astroturfed zero rating? TRAI refused
to admit FBK poll on FreeBasics

 They hate their telcos
 Speeds are inadequate in most EU countries – esp.
compared to academic not-for-profit networks
 They hate surveillance
 Five Eyes, Snowden, PRISM, Squeaky Dolphin
 They value privacy
 Schrems, Digital Rights Ireland, PHORM-BT
 They distrust regulators
 See telcos and security services as allies – and you?
Why are (some) people angry?

But maybe BEREC remains invisible?

Welcome to the new boss….same as
the old boss?
 Consumers’ associations & civil society deeply suspicious
of DT/Orange links to ministry and former bureaucrats
 But they are all honourable men
 http://www.reuters.com/article/france-orange-idUSL5N10968F20150729

Details of the Regulation
 7 relevant pages with
Articles 3-7
 19 Recitals:
 PECP/PIAS TMM v CAS
 Interesting definitions!
 “Strict interpretation and
to proportionality
requirements” (Recital 11)
Four issue areas for BEREC
 Transparency and evidence
 Recital 19, Article 4 in force!
 Zero rating
 Recital 7 ‘material effect’
 Specialised services
 Recitals 16-17, Art.3(5)
 Enforcement of TMP/Privacy
 Recital 18, Art.3(4), Art.5/6

Test is not FRAND but RTNDP
 FRAND
 Fair
 Reasonable
 and
 Non-Discriminatory
 Settled case law and
regulatory practice for
this approach
 RTNDP
 Reasonable
 Transparent
 Non-Discriminatory
 Proportionate
 Not entirely clear where
this standard lies?
 Case law of CJEU needed?
 That would delay us years

[EDRi evidence to BEREC]
 right to receive, seek and impart information (Article 11)
 the freedom to conduct business (Article 16)
 right to provide services in all 28 Member States (Article 15.2)
Traffic management must be application-agnostic:
 class-based traffic management prevents the roll-out of new
services, harm competition, innovation, privacy, users
 congestion affects end-users’ choice if not properly managed
“The Regulation must be read in light
of the Charter of Fundamental Rights”

 Self- and co-regulatory solutions need explicit legal act
 New legislation required in a few extraordinary nations
 assuming all stay in the EU/EEA that long….
UK position on government-
mandated or “encouraged” opt-ins

 IoT relies on stable connections
 Cloud relies on stable connections
 Big Data apps rely on stable connections
New Services? That 4th Industrial
Revolution (sic) thing?

 Telekom’s Hottges’ start-up tax announcement
 right after adoption of net neutrality rules
 What will BEREC decide, as FRAND solution apparently
off the table?
 FRAND would have been easier for you?
 Or physical/logical separation? DOCSIS3 issue
Regulators must not allow the
reclassification of online services and
applications as “specialised services”

Regulatory capture?

 Leads to uncompetitive market consolidation between
IAPs & Content Application Providers
 EU protectionism vs US OTTs? ETNO v. BEREC?
BEREC, NRAs and competition authorities
should stop IAPs making access to their
customer base a new form of monopoly

Recital 10, 33-35 – date incorrect on EDPS opinion (14/11/2013)
 e.g. DPI motivated Dutch law: KPN investor call in May 2011
 PHORM returns? 2006-7 illegal interception UK
 See my 2014 report for government of Korea on exactly this
 Italy and UK 3 ad-blocking an example?
 http://www.bbc.co.uk/news/technology-35615430
 “Customers should not have to pay data charges because of adverts
 mobile ads should not access handset data without explicit consent,
 owners should only see advertising that is relevant, interesting to them
 rather than obtrusive and untargeted information”
Specific content monitoring could be
interpreted as prohibited by the Regulation

 Relationship nationally & EU level with BEREC members
 Enforced by DPA, evidence gathered by comms regulator?
 Note emerging US FTC-FCC re. Title II data collection
 http://www.theverge.com/2016/2/16/11017934/net-
neutrality-data-collection-fcc-title-ii
Is privacy enforcement by the
Article29 Working Group?

 affects individual users’ freedom to impart information;
 a commercial practice;
 violates the Regulation’s ban on blocking and throttling;
 TMM would not be temporary, as required by Regulation;
 distorts competition and limits end-users’ choice.
Is it reasonable to interpret that zero-
rating is prohibited?

Zero rating only used outside EU?

By Region (TB per Month)
North
America
557,237 831,457 1,199,309 1,700,159 2,327,596 3,208,203
42%
Western
Europe
432,322 707,537 1,045,171 1,477,156 2,060,788 2,795,362
45%
Asia Pacific 1,578,865 2,676,873 4,422,785 6,725,446 9,771,677 13,712,874
54%
Latin
America
276,416 447,991 714,540 1,065,744 1,521,312 2,091,703
50%
Central and
Eastern
Europe
545,750 946,263 1,510,630 2,242,669 3,249,449 4,442,281
52%
Middle East
and Africa
294,476 569,895 1,038,661 1,723,221 2,777,550 4,313,794
71%
Cisco VNI Mobile Forecast to 2020

Free football Slovenia example
(Ungerer warning 1999)

Costs vary enormously along with
zero rating to exclude OTTs

 [2016] Comparative Case Studies in Implementing Net
Neutrality: A Critical Analysis of Zero Rating
SCRIPT-Ed 13:1 at http://script-ed.org/
 [2015] Zero Rating and Mobile Net Neutrality,
 Chapter 18, pp241-260 in Belli and de Filippi eds.
 ‘Net Neutrality Compendium: Human Rights, Free Competition
and the Future of the Internet’ Springer
Research articles on zero rating
(in addition to Prof. van Schewick)

Net Neutrality:
Discrimination, Competition, and
Innovation
in the UK and US
Alissa Cooper and Ian Brown (2015)
ACM Transactions on Internet Technology, 15(1): 2-21
http://dl.acm.org/citation.cfm?id=2700055

BEREC net neutrality Marsden 24 February 2016

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