Net neutrality in Norway, EU and US – a comparison

by Frode Sorensen

NN in Norway, EU and the US

Net neutrality is the principle that all Internet traffic should be treated equally. The consequence of this is that the use of the Internet access service should be decided by the end user, and that Internet service providers should not restrict the use of this electronic communication service. Net neutrality has been debated for several years, and a more formal regulation has crystallised by the end of 2010.

Originally published in NetworkWorld Norway.

Net neutrality in Norway

The debate over net neutrality came to Norway in 2006 when there were several articles in the press with allegations of throttling P2P traffic and streaming among Norwegian Internet service providers. The situation resolved relatively quickly, however, probably as a reaction to the press focus. In 2007 a new debate was raised, mistakenly mixing the question of connection to the national Internet exchange and the net neutrality principle.

The Norwegian Post and Telecommunications Authority (NPT) started its own net neutrality project in 2007, and in May 2008 they published the paper “On net neutrality”. The report described that the goal of its net neutrality efforts was to “ensure that the Internet remains an open and non-discriminatory platform for all types of communication and content distribution.” The general purpose of the report was to establish a better understanding of net neutrality in society.

As a follow-up to this project, later that same year a working group was established which initiated the process of preparing national guidelines for net neutrality. The working group was chaired by NPT and was composed of key Internet service providers, content and application providers, industry organisations and consumer authorities. February 2009 an agreement was achieved in the working group and many industry players adopted the guidelines.(1)

Since Norway was the first European country to establish a regulatory platform for net neutrality, this also attracted international interest.(2) The regulatory approach used in Norway is often referred to as “co-regulation” or “soft law” as the guidelines were developed jointly by government and industry, and the guidelines were designed as a voluntary agreement between stakeholders.

The Norwegian guidelines for net neutrality are based on three principles with explanations. The first principle describes that net neutrality protects the Internet access service, but that Internet service providers can operate additional services (such as facilities based IPTV) in parallel. It is therefore vital that the capacity and quality of the Internet access service is clearly specified (so-called transparency).

Principle 2 states that providers shall not block any of the end user’s content and applications, and Principle 3 goes further and specifies that also throttling of individual data streams is prohibited. A general variation of the Internet capacity may, however, occur because of the Internet’s “best effort” behaviour. There are also exceptions for reasonable traffic management, such as blocking of harmful traffic for security reasons.

Net neutrality in the EU

Norwegian regulation of electronic communications is clearly related to European regulations within the EU/EEA (European Economic Area). A set of five directives, often referred to as the telecoms package, constitutes the basis for Norwegian legislation for electronic communications. In 2007 EU began a process of revising the telecoms package from 2002. The question of how net neutrality should be described in the new rules led to major political discussions, and the directives have undergone extensive proceedings before they were adopted in late 2009.

In particular, the issue of Internet users’ protection against exclusion, for example after “three strikes and you’re out”-model that was proposed to deal with illegal file sharing, led to considerable debate. This question is not part of the core net neutrality issue. Finally, provisions to guarantee citizens a fair and equitable process in such cases, was added to the framework directive.

When it comes to net neutrality, the regulatory principles were expanded with a new principle which states that regulators shall promote “the ability of end-users to access and distribute information or run applications and services of their choice”. Furthermore, the provisions of the telecoms package stated that providers shall be transparent about the characteristics of their electronic communication services.(3) It is also interesting that the European Commission adds a declaration on net neutrality when the telecoms package is published, stating that “The Commission attaches high importance to preserving the open and neutral character of the Internet”.(4)

The provisions on transparency of electronic communication services should be seen in the context of competition in the electronic communications market. If competition is effective, users will be able to choose the provider that best meets the needs. In addition, there will also be pressure on the providers not to impose restrictions on the use of their services because this could lead customers to switch to an alternative provider.

Furthermore, the telecoms package includes a possibility for the regulators in case of degradation of services to impose minimum quality requirements on providers of electronic communication. This includes a comprehensive formal procedure for how such requirements can be introduced, and it is currently too early to know precisely how this provision could be used in specific cases.

During the autumn of 2010 the Commission conducted a public consultation on the open Internet and net neutrality in Europe. The consultation response(5) from BEREC (Body of European Regulators of Electronic Communications) states that incidents so far remain few and for the most part have been solved without the need for regulatory intervention. At the same time it lists specific cases reported in a few European countries. Blocking of VoIP in mobile networks in some countries is a well-known example.

Net neutrality in the US

The public awareness about Internet has previously appeared somewhat larger in the US than in Europe, possibly due to the Internet’s origin on the other side of the Atlantic. Likewise, the debate on net neutrality appeared first as an American phenomenon. It is also here we have the first investigation of net neutrality incidents, in 2005 when Madison River Communications blocked VoIP traffic. FCC (Federal Communications Commission) addressed the issue which was relatively quickly closed before any formal finding.

Around the same time, “the four network freedoms” were established. These described the consumer freedoms to (1) access content, (2) run applications and services, (3) connect devices and (4) competition among providers of networks, services, applications and content. These four principles were formally described in the FCC’s Internet Policy Statement of August 2005.(6)

In 2008, FCC started to investigate another net neutrality incident, Comcast’s throttling / blocking of traffic from the file-sharing application BitTorrent. FCC required that this practice ended. But a subsequent trial in June 2010 ruled that FCC did not have authority, based on principles alone, to force Internet service providers to keep their networks open.

In October 2009 FCC announced its Notice of Proposed Rule Making in which the Commission proposes an extension of the four net neutrality principles “to preserve the free and open Internet” while asking for comments from stakeholders participating in the debate. Two new principles were proposed; (5) non-discrimination and (6) disclosure of information concerning network management.(7)

There was particular interest attached to the questions about how “managed or specialized services” offered in parallel to the Internet access service should be considered, as well as how net neutrality should be assessed in mobile networks. In December 2010 the decision by FCC was announced: General requirements regarding transparency and non-blocking, while the requirement of “no unreasonable discrimination” was limited to fixed networks. Furthermore, it indicates that “specialized services” are allowed, but that this will be monitored with regard to the effect this will have for the Internet access service, as well as any anti-competitive effects.(8)

If one compares these rules from FCC with the Norwegian principles of net neutrality from 2009, there are clear parallels. However, the regulatory approach to net neutrality, respectively in Norway, the EU and the US, has both similarities and differences. However, during the last few years the situation has entered a more formal phase, and it will be interesting to follow the future development. Because the Internet is an international network, it is particularly interesting to see if we can reach an increasing coherence between the different national and regional approaches to net neutrality.

References:
(1) Norwegian guidelines for network neutrality, 24.2.2009, npt.no
(2) Norway gets net neutrality, 25.2.2009, arstechnica.com
(3) EU Telecoms Reform, Press release MEMO/09/513, 20.11.2009, europa.eu
(4) European Commission Declaration on Net Neutrality, Annex 2, MEMO/09/513
(5) BEREC Response to the European Commission, BoR (10) 42, 30.9.2010, irg.eu
(6) Federal Communications Commission Policy Statement, FCC 05-151, 5.8.2005
(7) Commission seeks public input on draft rules, fcc.gov, 22.10.2009
(8) FCC acts to preserve Internet freedom and openness, fcc.gov, 21.12.2010

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