Regulating and Implementing Network

NeutralityProfessor Chris Marsden

COMREG 25 March 2013

The problem in a graphic

Net Neutrality: European Approaches

Network neutrality growing policy controversy,

2 elements separated: present net neutrality 'lite' debate and the emerging net neutrality 'heavy' concerned with fibre access networks in future.

1. You know about Norway2. United States3. United Kingdom4. Netherlands5. Slovenia6. France

Implementation by Nation

Net neutrality laws 2013Country Legal Approach

Netherlands

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

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, UKFrance

Self-regulation unenforcedARCEP ‘Ten Principles ‘

Happy 4th birthday – since March 2009 Caused by ISP blocking national broadcaster video

service Enforced by co-regulatory pact – complaints? Other countries are trying less effective forms of ‘co’ While pretending it’s really ‘self’ Examples are US and UK

US since 1999 UK since 2006

I agree – in fact, I wrote a book about it!

1. Norway – co-regulation

7

Book launched February 2010

100,000 downloads first 2 months

2nd edition in paperback 2015

Net neutrality permanent feature of telecoms law

It is a debate which has existed since 1999 will grow in importance as

Internet matures & service quality increases demand on the network for

more attractive fixed and mobile/wireless services.

Fifteen years and counting… FCC Chairmen:

Reed Hundt Michael Powell Kevin Martin Julius Genachowski Still continues to be non-enforced

2. United States

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 summer 2013

Verizon v. FCC, Case No: 11-1356D.C. Circuit Court of Appeals

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!

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)

FCC uses two advisory groups: [1] BITAG

Co-regulatory: appointed by FCC in May 2012 http://www.fcc.gov/document/open-internet-advisory-

committee-members-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?

FCC: [2] Open Internet Advisory Committee

"Specialized services is a term that is meaningful only within the 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."

Working assumptions - require case studies to flesh out their details :

[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 the 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."

“Service is NOT a specialized service, and is subject to the Order if:

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'?

Limits the reach of specialized services that evade the Order

1999 Network Neutrality debate began in 1999 Mergers: cable TV and 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

2000s Debate 2002-4 US ‘Title II’ telecoms competition removed

by courts, Republican FCC Brand X case, Triennial Review

Lessig and Wu write to Congress 2002: fear cable-TV business model Wu coins term ‘net neutrality’ 2003

FCC introduces 4 ‘Net Freedoms’ 2005 Not including enforcement of same! Congress fails to legislate 2005-6 2008 – Obama campaigns w.net neutrality

2009 –11 FCC,

CRTC and European Commission introduce vague broad

principles of non-discrimination

2012 devil lies in the detail…

Incidentally it’s not net neutrality...

It’s ‘the open Internet’ In both EC consultation and FCC Order

US FCC Order 2011, challenge 2012 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

In Europe, something was rumbling..

Three wise monkeys

‘We have received no complaints’ is NOT ‘I have not listened to any complaints’.

Some regulators are: Seeing no evil Hearing no evil Speaking no evil.

BEREC analyzes sensibly!

Deny – problem does not exist until 2006? Delay – attempt switching/transparency solutions –

some success: changes in General Conditions 2006-8 Using SamKnows to measure performance 2010- Broadband Speed Code of Conduct 2008-12

Degrade – switch argument into co-regulatory forum: Broadband Stakeholder (sic) Group An industry forum funded in part by government Corporatist conceit

3. United Kingdom

Ofcom: ‘no formal complaints’

BEREC (2010) Response to the European Commission’s consultation on the open Internet and net neutrality in Europe, BoR (10)42

Charlie Dunstone, Chairman, TalkTalk Ofcom International Conference, Nov 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.”

Losing liberty?

ISPs important intermediary limited liability Based on their wise monkeys role Behavioural advertising – PHORM 2005-7

EC brings case to CJEU 2010-11 UK Government amends implementation of

privacy law Throttling on non-transparent basis

Removes 2000/31/EC Art.12-14 exemption Freedom of expression vital to democracy

James Heath, Policy Controller, BBC: ' welcome the code as a positive step forward,

alongside Ofcom's commitment to monitor the development of this fast-moving market.'‘

Jean-Jacques Sahel, EMEA Policy for Skype/Microsoft, “Together with Ofcom’s forthcoming annual report

on the Open Internet, this Code is a crucial step towards ensuring that… very soon, all remaining discriminations against end-users’ right to access content of their choice on

Internet cease.”

Open Internet Code of PracticeBroadband Stakeholder Group 25/7/12

Ofcom tried to strong-arm ISPs into self-regulation Broadband Code of Conduct in 2009/10 BSG transparency code of practice 2011 

Minister Vaizey had to do same for this BSG approach

Ofcom research with SamKnows Ofcom has regulatory powers:

Transparency – meaningful information on throttling and peaktime speeds

Minimum Quality of Service Netherlands simply implemented 2009 EU law

Why do they say Ofcom?

“I don’t think heavy handed regulation is necessary. “I’m saying we’re not going to put regulatory hurdles in the

way – the last 20 years have told us not to do that. “What I announced was business as usual –government

was alive to these issues and prepared to intervene in future.

“I am absolutely as one with someone like Tim Berners-Lee”

Tim disagreed and disagrees! Enjoyable discussion at OECD Paris June 2011 Vaizey more keen to talk to Stephen Carter of Alcatel-Lucent Purveyors of DPI equipment to telcos…

Ed Vaizey phones Sir Tim Berners Lee at home on Sunday 21 Nov. 2010

“It’s ‘old’ ATVOD: shadowing co-regulation? “The horse designed by a committee which

is the Voluntary Code of Conduct on negative discrimination (net neutrality 'lite')

“is so voluntary that Voda, EE and Virgin won't sign up as the porridge is variously considered too hot/cold.”

http://chrismarsden.blogspot.co.uk/2012/07/analyzing-uk-voluntary-code-of-conduct.html

Voluntary Code meaningless

Language shows ISPs kowtowed to Ofcom Nov. 2011 report:

"it is right that Ofcom take ownership of this issue “new proposed process will be a useful input to Ofcom…

in monitoring the impact of traffic management practices...

"voluntary commitments being made in this code closely relate to ongoing monitoring work Ofcom… will conduct.

“happy to discuss with Ofcom how its future work plans regarding open internet issues could support or input into a review of these voluntary commitments."

ISPs over to Ofcom’s View?

When will Ofcom engage in heavier persuasion to persuade ISPs to come up with a workable solution?

I suspect it will take a new minister at the very least, and possibly a new government.

Skype adds that Ofcom should produce an Annual Open Internet Report (which in any case should be a future part of the EC

Implementation Report as part of its commitments made to the European Parliament in the 2009 Net Neutrality Declaration).

My considered view

Reminiscent of the decade of industry garbage about misleading advertising, over broadband speeds. Proposal: content providers lodge unresolved

complaint with the Broadband Stakeholder Group (see Annex

1) instead of going direct to Ofcom or the EC (or more likely a supportive Euro-MP)

I predict that there will be almost exactly zero such farcical reports from BSG to Ofcom in 2013.

Not very edifying bit of horse-trading (or camel auctioning), is it?

The current signatories of the code are: BE, BT, BSkyB, KCOM, giffgaff, O2, Plusnet,

TalkTalk, Tesco Mobile and Three.

30% of fixed market Virgin

Only superfast ISP, throttler of peaktime content

60% of mobile market Everything Everywhere

Only 4G operator in 2013 Vodafone

World’s largest mobile ISP

Who has NOT signed it?

Prohibits internet providers from interfering with traffic of users. allows traffic management in case of congestion and network security, as long as these measures serve the interests of the internet user.

Anti-wiretapping provision, restricting deep packet inspection (DPI). They may only do so under limited circumstances, or with explicit consent of user, which user may withdraw at any time. The law allows for wiretapping with a warrant.

Internet providers can only disconnect their users in limited circumstances. Internet access is very important for functioning information society Disconnection only permitted in case of fraud or when user doesn’t

pay bills.

4. Netherlands15 May 2012: net neutrality law

DIRECTIVE 2009/136/ECNew Articles 20 and 22, Recital 26: Consumer protection/citizen rights NOT

SMP http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?

uri=OJ:L:2009:337:0011:0036:EN:PDF

Requirements to notify customers & NRAs But will need civil society activists To detect discrimination To notify higher-end consumers of problems

Added to interoperability requirements Article 5 Interconnection Directive

Article 22: Quality of service1. Member States shall ensure that NRAs are able to require networks and/or services to publish comparable, adequate and up-to-date QoS

information

2. NRAs may specify the QoS parameters to be measured

content, form and manner of information published, including possible quality certification mechanisms, end-users...comparable reliable user-friendly

information

3. In order to prevent the degradation of service, Member States ensure NRAs can set QoS

requirements.

NRAs shall provide the Commission

1. ... with a summary of the grounds for action, 2. the envisaged requirements and 3. the proposed course of action. 4. This information shall be available to BEREC

The Commission may... make comments or recommendations... NRAs shall take the utmost account of the

Commission’s comments or recommendations when deciding on the requirements.

Declaration: Neutrality 2009/140ECThe 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

Specific strengthening of Directives

Article 8(4)(g) Framework Directive strengthening of related transparency

requirements USD Articles 20(1)(b) and 21(3)(c) and (d)

safeguard NRA powers to prevent service degradation

slowing down traffic over public networks USD Article 22(3)

Transparency for end-users

Commission will monitor closely implementation in Member States introducing a particular focus on how

European citizens ‘net freedoms’ are safeguarded in its annual Progress Report to Parliament and

Council. Commission will monitor impact on ‘net freedoms’

of market and technological developments reporting to Parliament/Council before end-

2010 on whether additional guidance is required, and

will invoke its existing competition law powers to deal with anti-competitive practices that may

emerge.

Kroes: BEREC given key role by EC

[1] EC not leading in evidence gathering –for BEREC: "At the end of 2011, I will publish the results,

including any instances of blocking or throttling certain types of traffic." 

[2] If that produces evidence of widespread infringement - only Madison River Skype blocking? recommend setting EU guidance rules

"more stringent measures [in] the form of guidance." 

[3] "If this proves insufficient, I am ready to prohibit the blocking of lawful services or applications.”

That means guidance 2013 regulatory action 2014, if ever. 

Net neutrality laws 2013 update

19 December 2012: Slovenia net neutrality law 1 January 2013: Netherlands to enforce 2012

law March 2013: France proposes net neutrality law

And search neutrality? ‘all intermediaries’ That would be 4th country in Europe:

Finland via universal service Netherlands after mobile WhatsApp blocking Slovenia

5. Slovenia net neutrality

Economic Communications Act 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”

Work with the ministries of justice and the interior to draft legislation on net neutrality, National Digital Council (CNN) submitted a report on the subject.

freedom of expression not sufficiently protected in French law given development of filtering, blocking, censorship, throttling

Wording to be included in 1986 freedom of communication law CNN suggests extend neutrality to all information access services

including search engines, social networks and mobile apps, to guarantee access to information and to means of expression in non-discrimination, fair and transparent manner

6. France 13/3/13: digital economy minister Fleur Pellerin announced

BEREC response 2010 EC (2010) consultation on the open Internet and net

neutrality in Europe http://ec.europa.eu/information_society/policy/ecomm/

library/public_consult/net_neutrality/index_en.htm BoR (10) 42 BEREC Response at

http://www.erg.eu.int/doc/berec/bor_10_42.pdf “blocking of VoIP in mobile networks occurred

Austria, Croatia, Germany, Italy, the Netherlands, Portugal, Romania and Switzerland”

BoR (11) 40 Rev1 Draft Work Programme for BEREC 2012 NRAs’ regulatory remedies available to address potential discrimination issues,

link to the quality of service issue possible IP interconnection market analysis in 2012

BEREC overview of European markets

BEREC investigation task from Commission regarding switching issues and traffic management practices implemented by operators.

thorough investigation request dedicated task force, together with Commission

results consolidated and published 2012 Summary document, no ‘commercial’ detail Worse than useless?

Quality of Service requirements

Regulatory Framework: competence for NRAs to set QoS minimum requirements. When should NRAs set minimum requirements what should those be?

Harmonised minimum QoS requirements could avoid creating inefficiencies for

operators, costs ultimately paid by consumers.

2012 further guidelines for NRAs

Methods for measuring and assessing network and application performance, including by the end users themselves.

E.g. NRAs can promote or provide tools end users control or monitor quality include contractually agreed parameters

BEREC Deliverables 2012

1. Detailed guidelines on Transparency;1. (depending on outcome of the public

consultation)

2. Guidelines on Quality of Service Requirements;3. Completion of BEREC Reports on

discriminatory issues;4. Report on IP interconnection;5. Inquiry results on traffic management

practices.

BEREC preliminary findings

9 March 2012 “traffic management practices in Europe “blocking of VoIP and P2P traffic is common, “other practices vary widely.  “in the process of validating, consolidating

and categorising the data” http://erg.eu.int/doc/2012/TMI_press_release.pdf

“BEREC is very pleased with the high level of responses received.”

250 fixed and 150 mobile operators 25% claim “security and integrity” concerns

e.g. controlling “spam” traffic “application-agnostic” approach e.g. buffering OR “application-specific” techniques

throttle specific traffic, such as video streaming 1/3rd of fixed operators manage their networks

offer specialised services (e.g. telephony or TV) alongside a best efforts) Internet access service.

Discrimination:

Prioritisation implicitly is discrimination, evaluate negative consequences for

competition, innovation and end users’ interests.

2011, BEREC economic analysis of potential and theoretical effects of

discriminatory behaviour.

European Data Protection Supervisor October 2011

Concerned that traffic management would result in exposure of users’ personal data Including IP addresses

‘Opinion on net neutrality, traffic management and protection of privacy and personal data’ http://www.edps.europa.eu/EDPSWEB/webdav/

site/mySite/shared/Documents/Consultation/Opinions/2011/11-10-07_Net_neutrality_EN.pdf

Cesar Alierta, CEO Telefónica: “Something is now working in the value chain and this is not a level playing field.”Franco Bernabè, CEO Telecom Italia: “a couple of players dominate the market, stifling competition as others struggle to develop a significant customer base”.Randall Stephenson, CEO AT&T: “Policy makers are going to have to be very clear about

whether they desire rapid adoption of the latest technologies,

or do they desire hyper-competition and the lowest prices possible for the most basic of services.

Telcos declare war on Google and Facebook: 25 February 2013

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

What next? Net neutrality discussed

Norway UK Netherlands

US

Measurement

Self-declared with verification?

Ofcom: SamKnows

Consumers e.g. Glasnost/Neubot/ BitsofFreedom

FCC: SamKnows

Technical advice

Within co-regulatory pact

Broadband Stakeholder Group co-regulation

NRA – advising ministry

BITAG and OIACself/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 buy-in

Death by a 1000 cuts; deny-delay-degrade; significant political damage

Mobile DPI and blocking prompted action – legislative panic

Lack of bipartisanship causes trench warfare

Toolsets/lessons for each approach

@ChrisTMarsden C.Marsden@sussex.ac.uk http://chrismarsden.blogspot.co.uk/

5000 regular visitors (esp. Washington and Brussels)

Comments? Questions?

Glasnost initial results (Ireland v.small sample)

[N]ew manufacture must have seven properties. 1. it must be for twenty-one years or under. 2. it must be granted to the first and true inventor. 3. it must be of such manufactures, which any

other at the making of such letters patent did not use ...

4. the privilege must not be contrary to law ... 5. nor mischievous to the state, by raising the

prices of commodities at home. 6. nor to the hurt of trade7. nor generally inconvenient.

Sir Edward Coke, Institutes of the Lawes of England (1628) on the

Statute of Monopolies