by Chris Marsden

*

[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.

*

*“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 …

*AT&T Corp.'s planned acquisition of MediaOne Group

Inc…renewed the interest of regulators and Congress.”

*

*

Lessig and Lemley FCC submission:

*‘The end of End-to-End’

*Fear of closed duopoly model

10

Book launched February 2010

100,000 downloads first 2 months

2nd edition in paperback 2016

*

*Our politicians are largely useless idiots

*

*

*

*

*

*

*“It’s a max of £2/min to call,

*£1.25 to receive calls,

*35p to send SMS &

*£6/MB to use web”

*That is: R10 a minute!

*Or R30/MB

*R30,000 /GB

*So don’t call me, tweet

*@ChrisTMarsden

*I know I can’t be anonymous in Brazil…

*

*

*Country Legal Approach

Netherlands 15 May 2012 (S.7.4.a of Telecoms Law)

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 ‘

*Happy 6th birthday – since March 2009

*Cause: ISP blocking national broadcaster video service

*Enforced by co-regulatory pact – complaints?

*Now formalised in law – so definitely NOT self

*Other countries tried less effective forms of ‘co’

*While pretending it’s really ‘self’: US and UK

*

*Deny – problem does not exist until 2006?

*Delay – attempt switching/transparency solutions –

*some success: changes in General Conditions 2006-8

*Using SamKnows to measure performance 2010-

*Broadband Speed Code of Conduct 2008-12

*Degrade – switch argument into co-regulatory forum:

*Broadband Stakeholder (sic) Group

*An industry forum funded in part by government

*Corporatist conceit

*

**BEREC (2010) Response to the European Commission’s consultation

on the open Internet and net neutrality in Europe, BoR (10)42

*Charlie Dunstone, Chairman, TalkTalk*Ofcom International Conference, November 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’ve got 2 people threatening to kill me”

*Ofcom tried to strong-arm ISPs into self-regulation

*Broadband Code of Conduct in 2009/10

*BSG transparency code of practice 2011

*Minister Vaizey had to do same for this BSG approach

*Ofcom research with SamKnows

*Ofcom has regulatory powers:

*Transparency – meaningful information on throttling and peaktime

speeds

*Minimum Quality of Service

*Netherlands simply implemented 2009 EU law

*

*“I don’t think heavy handed regulation is necessary.

*“I’m saying we’re not going to put regulatory hurdles in the

way – the last 20 years have told us not to do that.

*“What I announced was business as usual –government was

alive to these issues and prepared to intervene in future.

*“I am absolutely as one with someone like Tim Berners-Lee”

*Liar!

*Tim disagreed and disagrees!

*We’ll see if Vaizey is still Minister in May – election time

*

*Language shows ISPs kowtowed to Ofcom Nov. 2011 report:

*"it is right that Ofcom take ownership of this issue

*“new proposed process will be a useful input to Ofcom… in

monitoring the impact of traffic management practices...

*"voluntary commitments being made in this code closely relate to

ongoing monitoring work Ofcom… will conduct.

*“happy to discuss with Ofcom how its future work plans regarding

open internet issues could support or input into a review of these

voluntary commitments."

*

*2011 signatories: BE, BT, BSkyB, KCOM, giffgaff, O2,

Plusnet, TalkTalk, Tesco Mobile and Three.

BUT 30% of fixed market: Virgin

60% of mobile market also refused:

*Everything Everywhere

*Only 4G operator in 2013

*Vodafone

*World’s largest mobile ISP

*

*

*

*Concerned that traffic management would result in exposure of

users’ personal data

* Including IP addresses

*‘Opinion on net neutrality, traffic management and protection

of privacy and personal data’

*http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/share

d/Documents/Consultation/Opinions/2011/11-10-

07_Net_neutrality_EN.pdf

Cesar Alierta, CEO Telefónica:

“Something is now working in the value chain and this is not a level playing field.”

Franco Bernabè, CEO Telecom Italia:

“a couple of players dominate the market, stifling competition as others struggle to develop a significant customer base”.

Randall Stephenson, CEO AT&T:

*“Policy makers are going to have to be very clear about whether they desire rapid adoption of the latest technologies,

*or do they desire hyper-competition and the lowest prices possible for the most basic of services.

*

*1st Internet Science conference Brussels 10-11 April 2013

*2nd Internet Science conference Brussels 27-28 May 2015

*Professor Ziga Turk, minister in charge of Slovenian law

*UK, French and Dutch technical engineering experts

*

*

*Federal Communications Commission (2015)

* In the Matter of Protecting and Promoting the Open Internet GN

Docket No. 14-28 REPORT AND ORDER ON REMAND, DECLARATORY

RULING, ORDER Adopted: February 26, 2015 Released: March 12, 2015

*“ISPs cannot “unreasonably interfere with or unreasonably

disadvantage”

*the ability of consumers to select, access, and use the lawful

content, applications, services, or devices of their choosing;

or of edge providers to make lawful content, applications,

services, or devices available to consumers.

*case-by-case basis: guidance on how the Commission

will apply the standard in practice.

**“broadband providers disclose, in a consistent format,

*promotional rates, fees and surcharges and data caps

*“Disclosures must also include packet loss as a measure of

network performance, and

*“provide notice of network management practices that

can affect service.”

*temporary exemption for [ISPs] with >100,000 subscribers

Norway UK Netherlands US

Measurement Self-declared

with verification?

Ofcom: SamKnows Consumers e.g.

Glasnost/Neubot/

BitsofFreedom

FCC: SamKnows

Technical

advice

Within co-

regulatory pact

Broadband

Stakeholder

Group co-

regulation

NRA – advising

ministry

BITAG and OIAC

self/co-

regulation

Legal

position

Co-regulation Not implemented

2009/136/EU

Implemented

2009/136/EU

Order 2010,

published Sept’11

– now Feb’15

Efficiency Very fast – first

mover

Very slow –

industry foot

dragging

Very fast – legislative

panic

Very slow – note

court delay

Lesson Act fast, get

stakeholder buy-

in

Death by 1000

cuts; deny-delay-

degrade;

significant

political damage

Mobile DPI and

blocking prompted

action – legislative

panic

Lack of

bipartisanship

causes trench

warfare

*