Net neutrality update November 2016

More on zero rating: The US Federal Communications Commission (FCC) has reached a preliminary conclusion that AT&T is violating its net neutrality rules by zero rating DirecTV video on its mobile network, according to Ars Technica. The letter the FCC sent to AT&T is available here; a further FCC letter in reply to AT&T’s responses reported that:

“…those responses fail to alleviate the serious concerns expressed in our November 9 letter regarding the potential anti-competitive impacts of AT&T’s wholesale Sponsored Data program for zero-rated mobile video services…your submission tends to confirm our initial view that the Sponsored Data program strongly favours AT&T's own video offerings while unreasonably discriminating against unaffiliated edge providers and limiting their ability to offer competing video services to AT&T's broadband subscribers on a level playing field.”

The FCC has asked AT&T to respond to a further set of questions by 15 December 2016; it has also expressed concerns to Verizon about its similar data cap exemption policies (in relation to its FreeBee Data 360 sponsored data programme) but the FCC’s inquiry is at an earlier stage.

In the UK, Virgin Media’ launch this month of a new 4G mobile service included zero-rated messaging on WhatsApp and Facebook Messenger; iNews and Ars Technica discussed whether this violated European net neutrality guidelines issued earlier this year.

Other net neutrality developments this month:

• CTIA – The Wireless Association wrote to the FCC asking it to exempt small ISPs from the transparency obligations set out in the FCC’s Open Internet Order, on the grounds that they are “particularly burdensome” for small broadband providers, “many of which lack the monetary and/or staff resources to comply with complex disclosure requirements that will not provide any benefit to smaller providers’ customers.”
• The Advertising Standards Authority called for a change in the advertising of broadband speed claims to ensure consumers are not misled. The Committees of Advertising Practice also announced a review of guidance to advertisers on broadband speed claims, reporting publicly in spring 2017.
• Research by the London School of Economics found that providers have an economic incentive to offer some content at faster speeds: “the only way to prevent the more influential internet service providers (ISPs) to have any undue advantage is a “strong” net neutrality regime and its enforcement. The economics of the industry indicate that these companies will always have an incentive to create differentiated “lanes” for internet traffic, with content providers on faster lanes paying a fee for faster access to consumers.”
• Ars Technica, Network World and USA Today considered the future of net neutrality in the US under the incoming Trump administration, focussing on the appointment of two opponents of net neutrality to oversee the FCC's transition from Democratic to Republican control.
• Finally, InsideSources considered whether the US Open Internet Order could have unintended consequences in that it could discourage ISPs from blocking malicious traffic; current FCC Chairman Tom Wheeler has stated he believes the Order gives leeway to providers to address such situations, as it allows for “reasonable network management”.