LEGAL INSTRUMENTS USED FOR NET NEUTRALITY RULES RULES

The author has collected links to the net neutrality rules for a set of countries. The rules of each country were categorized in one of three ways: no rules, soft rules, or hard rules. Countries with no rules may have net neutrality debates and proposals, but the relevant authorities have not created an official regime. The 28 nations of the EU must conform to the net neutrality law as of April 30, 2016, but implementation guidelines are pending. As much as possible, measurements are taken prior to April 30, 2016 to avoid confusion.

Countries with soft rules use a variety of measures such as multi-stakeholder models, principles, codes of conduct, and self-regulation.

Multistakeholder models are common in internet governance to allow for the participation of many actors in emergent ecosystems. They are proven to be effective means to address conflicts through dialogue.²⁴³ Principles, codes of conduct and self-regulation are initiated either by regulators, operators, or other actor, or in cooperation as a proactive means to protect users rights. Countries with soft rules take a carrot and stick approach, a reward to operators for avoiding hard regulation at the outset, but at the same time, the understanding that hard rules can follow if abuse occurs. It’s important to note that this group of rules represents the longest running regime for net neutrality. Some of the leading countries with this approach are Denmark, Sweden, United Kingdom, and Switzerland. According to Luca Belli, head of the Dynamic Coalition on Net Neutrality and author of the Model

243 Layton, Roslyn. “Test of the FCC’s Virtuous Circle: Preliminary Results for Edge Provider Innovation and BIAS Provider Investment by Country with Hard Versus Soft Rules”, Chapter 13. Net Neutrality Compendium Springer, 2016 http://www.springer.com/us/book/9783319264240

See also

Mark Jamison and Roslyn Layton, “Beyond Net Neutrality: Policies for Leadership in the Information, Computing, and Network Industries”, June 2016,

https://www.aei.org/wp-content/uploads/2016/06/Beyond-net-neutrality.pdf

Framework on Net Neutrality,²⁴⁴ hard rules are not a requirement for net neutrality. In his opinion, the soft rules of the Danish and Norwegian regimes have been successful.²⁴⁵

Given that mobile contract complaints is a common consumer issue, it begs the question why the regulator does not focus more on transparency requirements. Such an approach was taken by the Swedish regulator (PTS) in 2009, establishing guidelines in 2009²⁴⁶ in lieu of making a net neutrality law. In the Swedish perspective, net neutrality is about ensuring transparency in pricing, service offerings, network quality, as well as upstream and downstream capacity so that consumers are clear in what they purchase and can easily switch providers. PTS claims its consumer-centric, transparency-focused approach is successful and has improved operating norms so much that adopting to the EU’s new solution is a step backward. ²⁴⁷

Whereas soft rule regimes focus on promoting users rights (right to access content, applications and services of one’s choice and the right to use devices of one’s choice), the rules in countries with hard regimes have a starting point of the prohibitions on operators, for example, no blocking, throttling, or paid prioritization. Countries with hard rules use either legislation or regulation to create binding, punitive regimes. Countries with legislation on net neutrality include Netherlands, Slovenia, and countries in Latin America such as Chile, Brazil, Mexico, and Argentina. The US and Canada are two countries which take the unique approach in which telecom regulators unilaterally create rules. Rules in both countries have been litigated.

244 “Dynamic Coalition on Network Neutrality,” Network Neutrality Coalition, accessed June 20, 2016, http://networkneutrality.info/sources.html.

245 EuroDIG Association, “Embracing the Digital (R)evolution,” EuroDIG, June 20, 2016, http://www.eurodig.org/eurodig-2016/. Luca Belli. Personal interview, 10 June 2016. Brussels. EuroDIG

246 Post-och Telestyrelsen (PTS), “Nätneutralitet”,

http://www.pts.se/sv/Bransch/Internet/Oppenhet-till-internet/

247 ETNO, “Ola Bergström, Director at Swedish Post and Telecom Authority - PTS, Gives an Interview at ETNO-MLex Summit 2014,” viEUws, July 7, 2014,

www.vieuws.eu/etno/etno-etno-mlex-summit-2014-interview-with-ola-bergstrom-director-for-international-affairs-swedish-post-and-telecom-authority-pts/

Countries with no rules may be in process of making rules but such promulgations were not concluded by the time of this writing. To be sure, there has been heated debate on the topic in India. Policymakers in Russia and China have had deliberations but no formal policies have been issued.²⁴⁸

3.7.4 ACTORS

For the purpose of this analysis some general categories are created.

Broadband providers are the operators of networks, whether they are owners or resellers. In this analysis they are the mobile network operators, whether incumbents or challengers. They build and run networks and deliver broadband service. Telecom regulatory authorities are a single entity within each country which oversees net neutrality rules. Edge providers offer third party content, services and applications, for example Google, Netflix, or Wikipedia. End users are people who buy internet subscriptions to access third party data. App developers, whether an individual working in a garage or a publicly traded company that makes mobile games, are “publishers.”

It bears mention that with regard to the data, two actors have enormous influence. Google develops the lion’s share of the world’s mobile operating systems, Android and its platform Google Play are dominant systems. Apple is second with its proprietary iPhone, iOS operating system, and AppStore marketplace. The market power and concentration of “edge providers” is evident when studying the data, but that seems of limited concern to most net neutrality advocates. To be sure, Wu wrote his article before the emergence of the mobile Internet, but he did not discuss how edge providers would come to

248 Rob Powell, “The Curious Case of WeChat and Net Neutrality in China,” April 8, 2013, http://www.telecomramblings.com/2013/04/the-curious-case-of-wechat-and-net-neutrality-in-china/

https://gettingthedealthrough.com/intelligence/28/article/3741/telecoms-media-russia

dominate the ecosystem. Wu has since written a paper about Google’s search dominance.²⁴⁹