The Smell of Neutrality in the Air?

For most people, the arrival of summer means longer days, sunny vacations, and weekends spent around the barbecue. For telecommunications regulators, this summer has something else on the agenda: net neutrality. During the final two weeks of June, regulators in no less than four jurisdictions took major steps to address net neutrality in some fashion:

• In the US, the FCC launched its Notice of Inquiry about broadband Internet jurisdiction on June 17.
• In the UK, Ofcom launched its most significant effort on net neutrality to date, publishing a discussion document and launching a discussion process on June 24.
• In Brussels, the EU’s Directorate-General on Information Society and Media launched a public neutrality consultation on June 30.
• In Canada, the CRTC declared its intent to apply its Internet traffic management practices framework to mobile wireless services on June 30.

The comparison of these various efforts is revealing. While many observers would claim that the neutrality debate began in the US, the recent D.C. Circuit Court decision in FCC v. Comcast has in some ways sent US regulators back to the drawing board to answer the most basic question about whether they even have the authority to enforce neutrality or nondiscrimination provisions on broadband Internet service providers. Ofcom’s discussion document, meanwhile, continually reiterates the limited scope of that agency’s authority to act, with competition issues squarely in scope but with “wider political, industrial and social policy issues” — including issues of end-user innovation that have been major drivers of the US debate — declared out of scope, to be handled by legislators or the executive. If there were such a thing as regulatory envy, one imagines that the mere certainty with which Ofcom declares its authority in this area would be the object of the FCC’s desire at this particular moment in time.

Not that a clear articulation of authority equates to an obvious path for exercising that authority. The EU, which in some ways proscribes Ofcom’s authority through the UK’s implementation of the revised European Framework for Electronic Communications Regulation — and therefore might be expected to take a similar approach as Ofcom — has launched a far broader inquiry than the UK regulator, including by asking specific questions about the impact of discrimination on the political, cultural, and social value of the Internet. For two bodies working under a common framework, their conceptions of what is on the table for discussion seem rather divergent.

While the US is grappling with its jurisdictional issues and the UK and the EU are busying themselves with discussion and consultation, Canada is taking decisive action, bringing mobile data services under its already-established network management framework. Not only has the CRTC previously taken an in-depth look at discriminatory network management and fashioned a regulatory response, but by bringing mobile under that umbrella it has confronted an issue which has yet to become the primary focus in the other jurisdictions.

Of course, regulators are not exactly competing with each other to see who can act first. While they may reference each others’ decisions, they remain mostly focused on their own local market circumstances. Some of them may determine that given these circumstances, discrimination in their localities is perfectly acceptable, or not far enough outweighed by other factors to justify regulatory action. For example, Ofcom seems (at first blush) inclined to rely on the high level of UK ISP competition to work out potential discrimination issues, whereas the CRTC has put the burden on ISPs to prove that discriminatory traffic management is warranted if and when it is to be used.

While the implications of these national differences may be off the radar screens of regulators, they are front and center for the developers of Internet applications, services, and content. Many developers see no national boundaries when they look at the Internet — they develop their offerings for everyone, everywhere. The upshot is that whether discrimination occurs in the developer’s home country or a far-flung locale, it can have implications for the performance and user experience of the developer’s offering. The fact that a voice-over-IP program created in Estonia (Skype) or an instant messaging program developed in Israel (ICQ) can be enjoyed the world over means that the decisions of regulators affect the developers of those and thousands of other applications across the planet. Allowing discrimination in some countries but not others spells increased engineering work for developers (among other potential costs) as they determine how to provide the best user experiences across a panoply of different regimes.

The fact that four regulators in four different regimes have turned their attention to net neutrality in recent weeks could be chalked up to coincidence (although Ofcom specifically mentioned that it aligned its timing with the EU). But perhaps the timing raises some hope for developers that the harmonization of neutrality standards across different jurisdictions is a possibility, however unpredictable regulatory processes may be. In the meantime, developers will be faced with the network performance and user experience challenges raised by discrimination across all jurisdictions. Hopefully they can still squeeze in some time to enjoy a sunny barbecue or two.

Leave a Reply

Your email address will not be published. Required fields are marked *