This document provides a summary of Professor Chris Marsden's presentation on net neutrality. It discusses the past, present, and future of net neutrality, including: - Competition law is key to net neutrality but cannot provide all the answers to emerging issues. - Transparency and switching between ISPs is not effective as more attempts are made, more failures occur. - All ISPs have incentives to discriminate and it is difficult to prove anticompetitive behavior from oligopolies. - Net neutrality laws and approaches have been implemented in various countries with different levels of enforcement and effectiveness.

1. NET NEUTRALITY:
PAST, PRESENT, FUTURE
Professor Chris Marsden @ChrisTMarsden
IGF Nusa Dua: 26 October 2013

2. ISOC‟s latest word on net neutrality?
• “Competition law is a key aspect of network
neutrality debate and can provide sufficient
answers to many of the emerging issues”
• http://www.internetsociety.org/igf-daily-highlight-%E2%80%93-23-october-2013
• No it‟s not and no, it can‟t!
• Net neutrality responds to a layers problem:
• All ISPs need to manage traffic and
• several claim to be deluged with video on HTTP

3. Try transparency and switching
• It‟s a mirage – more you try, more you fail
• Ofcom in UK spent 6 years trying to increase both
• Desperate attempt to portray as „self-regulation‟
• It‟s really co-regulation
• Results: severely throttled compared to US
• UK users:
• very low upload speeds
• See Cooper (2013) on ssrn.com

4. UK late developer: very low 2006 speeds

5. All ISPs have incentives to discriminate
• Don‟t fall into trap of assuming dominance
• Or worse, collective dominance
• Ever tried to prove oligopoly?
• Simple ground rules for what is acceptable
• So let‟s re-phrase definition:

6. TELCOS SHOULD NOT BE
OVERTLY NAUGHTY
AGAINST USERS
Or to be a lawyer:
“Allow only reasonable traffic management”
Or a brand marketeer:
“Don‟t be evil – and get caught”

7. Corporate surveillance, civil resistance

9. Charlie Dunstone, Chairman, TalkTalk
• Ofcom International Conference, 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.
• “I have 2 people threatening to kill me.”

10. Western Europe should have no problem
• Fixed traffic growth is low and manageable
• 17% CAGR 2012-2017
• Way below historic growth rates 30-40%
• Even mobile forecasts are falling off a cliff
• Lots of Wifi hand-off – ask BBC

11. MNO entrants lower data prices than duopolists

12. We‟re only starting to implement NN
• Netherlands 2012 law not enforced so far
• Slovenia more interesting – law of 12/2012
• UK ISPs throttled for over 12 years
• government doesn‟t care
• Enforcement easy if you approach it logically

13. Net neutrality laws 2013
Country
Legal Approach
Netherlands
15 May 2012 (S.7.4.a Telecoms Law)
Slovenia
Economic Communications Act 2012
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, UK
France
Self-regulation unenforced
ARCEP „Ten Principles‟

14. Slovenia Economic Communications Act 2012
• http://www.scribd.com/doc/144614369/Slovenia-Net-Neutrality-law-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”

15. 50 ways to throttle your user
• Who should [a] discover [b] regulate NN?
A. Discovery by researchers on behalf of govt
• Geeks can help lawyers to find blocking/discrimination
• But only where it‟s widespread/obvious – e.g. Skype
B. Regulation by telco NRAs
• Trained to remember their legal function to protect
• freedom of expression and user privacy
• Strangely forgetful of their constitutional functions
C. Enforcement with appeal to courts
• As with all other telecoms law

16. All regulators can
find breaches

17. Can developing countries afford NN?
• You can‟t afford not to!
• You have sold GSM licences much too cheap
• You don‟t have competition – duopoly or 3-way
• You don‟t have fixed line alternative
• NN or bust?
• Mobile „Internet‟ becomes a joke without NN
• That‟s all your digitally divided have to connect

18. It all began in 1999 – last millenium…
• Based on cable „walled garden‟ fears
• Mergers: cable TV/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

19. Net Neutrality Worries in Strasbourg?
[1999] Pluralism in the Multi-Channel Television Market:
• Suggestions for Regulatory Scrutiny
• Council of Europe Human Rights Commission,
• Mass Media Directorate, Strasbourg, France
• MM-S-PL [99]12 Def2.

20. Marsden for CoE Committee of Experts
on Media Pluralism [99] S.5.1
• the phenomenon of convergence in the form of integration
of programming and technical bottleneck facilities – is
driving this market phenomenon.
• In the case of Sky and AOL, it is content allied to control
of the browser, the „first screen‟;
• in the case of Microsoft,
• it is the browser operating system allied to the distribution
platforms of cable companies

21. 24 May 1999: Section 5.1
• “AOL, WorldCom and other Internet companies again
• urged federal authorities to bar cable operators striking
exclusive deals on high-speed Internet service
• Internet providers want to be sure that
• consumers will enjoy the same open access to their
services via cable networks that they now have over
phone lines...”

22. Book launched
February 2010
100,000
downloads
first 2 months
2nd edition in
paperback 2015
22

23. Glasnost initial results

24. Net neutrality will grow and grow
• 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

25. Answers? Good questions?

26. Comments? Questions?
• @ChrisTMarsden
• C.Marsden@sussex.ac.uk
• http://chrismarsden.blogspot.co.uk/
• 5500 regular visitors (esp. Washington and Brussels)

27. Toolsets/lessons for each approach
Norway
UK
Netherlands
US
Measurement
Self-declared with Ofcom:
verification?
SamKnows
Consumers e.g.
Glasnost/Neubot/
BitsofFreedom
FCC: SamKnows
Technical
advice
Within coregulatory pact
Broadband
Stakeholder
Group coregulation
NRA – advising
ministry
BITAG and OIAC
self/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 buyin
Death by a 1000
cuts; deny-delaydegrade;
significant
political damage
Mobile DPI and
blocking
prompted action
– legislative panic
Lack of
bipartisanship
causes trench
warfare

28. Declaration: Neutrality 2009/140EC
The 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

29. How to Monitor and Implement NN?
Ultimately impossible to check subtle non-neutrality
• Obvious cases of blocking (Madison River, European mobiles) and
seeding (Comcast)
• Less obvious: degrading YouTube (Free, Orange France)
Not at all obvious: interconnection between Tier 1
• Agreed: you only know they‟re degrading you when they can
advertise it to others as a „selling point‟
How can national regulators decide what is „reasonable‟?
• Issue for all regulators post-2014

30. Net Neutrality: European Approaches
• 2 elements separated:
• present net neutrality 'lite' debate
• and
• the emerging net neutrality 'heavy'
• concerned with fibre access networks in future

31. US FCC Order 2011, challenge 2013
• 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

32. Verizon v. FCC, Case No: 11-1356
D.C. Circuit Court of Appeals
• 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 winter 2013

33. 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!

34. FCC uses two advisory groups: [1] BITAG
• 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)

35. [2] Open Internet Advisory Committee
• Co-regulatory: appointed by FCC in May 2012
• http://www.fcc.gov/document/open-internet-advisory-committeemembers-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?

36. Working assumptions - require case
studies to flesh out their details:
• "Specialized services is a term that is
• meaningful only within 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."

37. “Service is NOT a specialized service, and
is subject to the Order if:
[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 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."

38. Limits the reach of specialized services
that evade the Order
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'?

39. • Marsden, C. [1999] Pluralism in the Multi-Channel Television Market:
•
•
•
•
•
•
•
•
•
Suggestions for Regulatory Scrutiny, Council of Europe, MM-S-PL [99]12 Def2.
Lemley and Lessig (2001) The End of End-to-End: Preserving the Architecture of
the Internet in the Broadband Era, UCLA L. REV. 48: 925
Marsden, C. [2005] Contribution to Impact Assessment of the revision of the
Television Without Frontiers Directive, with E. Horlings, C. Van Oranje, M.
Botterman, TR-334-EC DGJS Santa Monica: RAND
Marsden, C. and J.Cave [2006] Assessing Indirect Impacts of the EC Proposals
for Video Regulation, TR-414 for Ofcom. Santa Monica: RAND
Marsden, C. [2008] Net Neutrality: The European Debate 12 Journal of Internet
Law 2 pp1, 7-16 Marsden, C. (2010) Net Neutrality – Towards a Co-Regulatory
Solution? Bloomsbury Academic
Marsden, C. [2013] Network Neutrality: A Research Guide Chapter 16 in
„Research Handbook On Governance Of The Internet‟, I. Brown, ed., Edward
Elgar.
Marsden, C. [2012] Internet Co-Regulation and Constitutionalism: Towards
European Judicial Review, 26 Int. Rev. of Law, Computers & Tech 2. pp.212-228.
Marsden, C. [2012] Regulating Intermediary Liability and Network Neutrality,
Chapter 15, pp701-750 „Telecommunications Law and Regulation‟ (Oxf, 4th ed)
Marsden, C. [2011] Network Neutrality and ISP Liability Regulation: Are the Wise
Monkeys of Cyberspace Becoming Stupid? 2 Global Policy 1 pp.1-12
Marsden, C. [2013] Regulating Code: Good Governance and Better Regulation in
the Information Age with Ian Brown, MIT Press: Cambridge MA. 312pp.