Can true "Neutrality" exist?

No.

Then what should "Net Neutrality" protect?

"Net neutrality is the principle that Internet gatekeepers ought not to be able to use their gatekeeping power to unjustly discriminate between similarly situated persons, content or traffic."

 

Corollary 1: Net neutrality regulations should not prevent all discrimination, but only unjust discrimination.  

Corollary 2: Some forms of positive discrimination are not unjust.

Corollary 3: Some form of discrimination may be needed between differently situated persons, content or traffic.

What is "gatekeeping power"?

"Gatekeeping" occurs when a single entity establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes.

 

It is generally not possible for Internet services to reach the customers of the telecom network without passing through the telecom network: there's an effective "access monopoly"

 

If there were no "access monopolies", we wouldn't need Net Neutrality regulations.

What factors affect gatekeeping?

• last-mile market
  • switching costs between equivalent service providers
  • availability of an open-access last-mile
  • availability of a "public option" neutral ISP
  • increase or decrease in the competition, both in wired and mobile ISPs.
• interconnection market
  • availability of well-functioning peering exchanges
  • availability of low-cost transit
• technology and available bandwidth
  • spectrum efficiency
  • total amount of international bandwidth and local network bandwidth
• conflicting interests of ISPs
  • do the ISPs have other business interests other than providing Internet connectivity? (telephony, entertainment, etc.)

What potential harms from NN violations?

free speech harms

competition harms

privacy harms

innovation and ‘generativity’ harms

harms to consumer choice and user freedoms

diversity harms

What potential benefits from NN violation?

freedom of speech + association

(especially when access to communication and publishing technologies is increased)

competition

access

innovation + 'generativity'

consumer choice + user freedoms

Given that pricing isn't neutral, how do we regulate 'zero-rating'?

First, we need to ask the question of what.

What is 'zero-rating'?

No single thing called zero-rating / differential pricing

 

Facebook-specific data packs

Unlimited Facebook

Increasing price of VoIP / WhatsApp

Free government services

Airtel Zero

Internet.org

Free Basics

Free access to locally-hosted sites

 

We should NOT allow

• ISPs to discriminate in their own favour by lowering the prices for Internet services from a related party (e.g., Reliance Communications lowering prices of Reliance Entertainment or NDTV);
• ISPs to discriminate between competing content services, and that would harm competition between them (exclusive deals, etc.);
• ISPs to discriminate in their own favour or in favour or related parties by increasing prices for services like voice-over-IP or messaging or video streaming that compete with other non-Internet services that the ISP offers, like voice calls, or video-on-demand, etc.
• ISPs to gain an unfair competitive advantage over other ISPs if they have exclusive tie-ups with dominant Internet-based services like Facebook or Google to lower the price of those services;
• ISPs to enter into exclusive agreements with specific services to get paid to exempt them from data caps / ‘fair usage policy’ limits or to lower the costs for subscribers (note: increasing data caps or bypassing ‘fair usage policies’ for specific traffic also constitutes a form of price discrimination).

What is 'zero-rating'?

I love taxonomies (and Borges)

 

WHO PAYS | end consumer / subsidized by ISPs / subsidized by content providers / subsidized by government / a combination of these

HOW (telco-CP) |  deal-based / criteria-based / government-imposed

HOW (telco-user) | Choice? ISP imposed / opt-out / opt-in

HOW (telco-user) | Transparent? Understood by consumers / opaque

WHAT | Based on content-type / agnostic to content-type

WHAT  | Service-specific or service-class/protocol-specific or service-agnostic

WHERE | Available on one ISP / available on all ISPs

Why should we allow some zero-rating?

Freedom of expression.

 

"Freedom of the press is guaranteed only to those who own one." (Liebling, Barron, Balkin)

 

Freedom of expression must include access to technologies of speech.

 

Any government action to reduce access must be justified.
(and what of rights of JNet?: "there is no need to compromise either your Jewish values or your productivity when using the Internet")

Why should we allow some zero-rating?

Regulatory theory.

 

Net neutrality is not a matter for the precautionary principle.

 

It needs to be shown that it harms: access, user choice, user rights (FoE, privacy, etc.), competition.

Why should we allow some zero-rating?

Does 0.example.net harm?

Why should we allow some zero-rating?

Does Free Basics harm?