Net neutrality update June 2016

This week the U.S. Court of Appeals for the District of Columbia upheld the Federal Communications Commission’s (FCC’s) Open Internet Order (more background on the legal challenge to the FCC here).

Central to the FCC’s Open Internet Order is the reclassification of broadband Internet service as a telecommunications service under Title II of the Communications Act. The Open Internet Order requires that providers must not “block access to legal content, applications, services, or non-harmful devices”, must not “impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices” and must not “favour some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind” – banning paid prioritization/Internet “fast lanes”. Providers must ensure transparency in service delivery and may engage in “reasonable network management”. The Order also gives the FCC the authority to “hear complaints and take appropriate enforcement action if it determines the interconnection activities of ISPs are not just and reasonable.”

Companies and organisations that welcomed the decision included Netflix and the Electronic Frontier Foundation, while the National Cable & Telecommunications Association, American Cable Association, CTIA – The Wireless Association, US Telecom, CenturyLink, Tech Freedom and the Information Technology & Innovation Foundation all expressed disappointment. AT&T stated that “we have always expected this issue to be decided by the Supreme Court, and we look forward to participating in that appeal”. Ars Technica outlined the legal options now available to the organisations that challenged the FCC’s Order, including the possibility of an appeal to the Supreme Court. Reuters suggested that “consumers likely will not notice any difference because the rules have been in effect since June 2015.”

Last week the Body of European Regulators for Electronic Communications (BEREC) set out draft guidelines on the implementation of European net neutrality rules by national regulators (more background on this here). The guidelines relate publicly available communications services, services that are not publicly available (such as WiFi hotspots in cafés and restaurants and internal corporate networks) are out of scope, as are services where the access to the Internet is limited by the nature of the terminal equipment (M2M services, e-book readers) and IP interconnection services. Zero-rating (more background here) is not prohibited per se, but instances will need to be assessed on a case by case basis using criteria set out in the guidance; “reasonable traffic management” is allowed. Specialised services are allowable under the rules (examples include high-quality voice calling on mobile networks, live IPTV services with specific quality requirements and real-time remote health services), but can only be offered when network capacity is sufficient to ensure that internet access services are not degraded as a consequence. The guidelines also set out transparency requirements for service providers. BEREC’s consultation runs until 18th July 2016 and the final version of BEREC’s guidance will be issued by the end of August 2016; also see commentary from Out-Law.

Finally, the UK Broadband Stakeholder Group published a new Open Internet Code of Practice following a review last year:

“The new code continues to preserve the concept of an Open Internet – one in which users can access all lawful content without providers discriminating on the basis of commercial rivalry. It also ensures that traffic management practices employed by communication providers to manage their network are compliant with the new EU Regulation. In addition, the signatories to the Code will maintain the transparency that they already have in place around these practices by ensuring that these are communicated to the user effectively. The Code also clarifies the context in which some innovative services, which may become more prevalent as the Internet of Things becomes a reality, could be provided alongside the Open Internet.”