7th Internet, Law and Politics Congress (II). The Net Neutrality debate: The Policy Options

Notes from the 7th Internet, Law and Politics Congress: Net Neutrality and other challenges for the future of the Internet, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 11-12 July 2011. More notes on this event: idp2011.

Panel: The Net Neutrality debate: The Policy Options
Chairs: Miquel Peguera, Senior Lecturer, School of Law and Political Science (UOC).

Antoni Elias, Professor at ETS d’Enginyeria de Telecomunicació de Barcelona, Universitat Politècnica de Catalunya (Telecommunication Engineering School at UPC)
The debate on net neutrality: regulation-based policy options

Four stages that stress the Internet:

  • Technical complexity
  • Legal complexity
  • Economic complexity
  • A social engine

For all these reasons there are arguments enough to have a supranational structure to regulate the Internet. There is no solution on the issue of net neutrality without this supranational regulatory institution, as the Internet knows no borders. Especially when most communications run over what we generally call the Internet: and IP-based protocol with a name system regulated by the IANA/ICANN.

Telecomms used to charge by access to the service (line rent) and for each use of the service (e.g. minutes called). With DSL, the paying system changes and operators tend to be paid through flat rates. This change implies that the growth of usage is not (directly) associated with a parallel increase in income. Does this scale or is this sustainable?

If we compare the Internet with the printing press, what we might be facing now is how the Internet opens up a new enlightenment as the press did in the XVIII century. But, for this new enlightenment to happen, like the printing press, the Internet must be free from control.

Innovation and investment in networks are as important as the new applications, services, contents or devices. And, of course, traffic must be managed and users and services must be managed too. But managing is not discirminating: discriminating is treating different what is not, not treating different what is different.

Joan Barata, Professor of Communication Law and Vice Dean for International Relations and Quality at Blanquerna Communications School, Universitat Ramon Llull

Net neutrality is not (only) about technology.

There is a big difference between hetero-regulation and self-regulation. And self-regulation might not be enough, so external regulation may apply.

And it is not (only) about discriminating traffic, but also, for instance, about the design and functioning of search engines: how do they search, how do they show the results, etc.

The problem is that if we add a regulatory burden to the carrier, we are also adding to it the possibility to open and peak on the packets that it is carrying. So, we may have a trade-off between free competition and privacy or even security.

‘Reasonable’ discrimination is also a complex issue. It is not ‘reasonable’ to discriminate on a monopolistic basis, to avoid competition. On the other hand, it is not ‘reasonable’ to discriminate on a politics basis, banning specific ideologies. But, would it be ‘reasonable’ to discriminate if the user wants so? The FCC acknowledges that whenever the user has control over the discrimination, that is ‘reasonable’.

But the discrimination based on what you pay is not ‘reasonable’.

So, when we speak about regulations — and regulators — it may be a good idea not to design it to regulate networks, but also with the aim to regulate content, as net neutrality is a matter of both worlds: technology and society.

Ángel León, State Department for Telecommunications and Information Society
Net Neutrality: a critical vision of the normative approach

Why are we speaking about Net Neutrality when al the goals seem to be the traditional ones that applied to the regulation of telecommunications as we used to know them?

A first difference is using Net Neutrality and its regulation as a unifier of different problems or open topics on telecomm regulation. A second one is that Net Neutrality only applies to a specific kind of networks: the Internet. And a third one is that the regulation will apply regardless of the size or market power of the operator.

Most of the regulation on Net Neutrality focus on the quality of the service. But some obligations we impose on the operators just do not allow them to provide this quality service.

On the other hand, there are some practices that circumvent any kind of restriction, like being able to control the presence of the user at a given time, where is the user, knowing their capabilities to connect, being able to stablish different pricing systems, etc.

The usual Net Neutrality approach favours a layered model, with a neutral point of access, but a discriminating service. Indeed, it does not allow for priorities, or different treatment for different cases.

Internet represents a new paradigm which does not allow for traditional regulatory approaches. It’s value change has become so broad, that regulating only access or some specific checkpoints is almost useless.


Chris T. Marsden: wouldn’t it be possible to try and sync Europe with the US? León: the problem is that laws and rules (norms, regulation in general) are two different things. And in the case of Europe, Laws are really behind providing an appropriate framework within which rules and norms can be designed. That is not the case of the US, where the FCC can act powerfully with a Law scheme drawn in 1996.

Miquel Peguera: what is the future like? Barata: one of the most important things will be being able to put the correct questions and being able to explain them to the population at large. Elias: the collapse of the network is not something that one can envision, but it is nevertheless a powerful argument against Net Neutrality. Indeed, it is the chaos and anarchy of the Internet what made it the rich space that it is. León: the citizenry wants an open Internet and governments should provide the framework for that to be possible. The question is how Net Neutrality can enter laws: as a right, a regulatory principle or a goal. And each one requires a very different approach.

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7th Internet, Law and Politics Conference (2011)