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Recent Net Neutrality Developments in the EU and the Americas

Mark W. Brennan

Mark W. Brennan,

Washington, D.C.

Carly T. Didden

Carly T. Didden,

Washington, D.C.

30 January 2015

shutterstock_17314873With an ongoing rulemaking at the Federal Communications Commission, a pair of Congressional hearings, and President Obama’s recent remarks on the matter, U.S. policymakers have been actively debating net neutrality issues.  However, the U.S. is not alone:  The EU has taken significant steps towards a new net neutrality law, Brazil and Mexico passed legislation last year, and Chile’s regulatory authority acted to enforce the country’s existing net neutrality law.  The global interest in and debate over net neutrality will continue as more countries consider whether to regulate and the effects of recently adopted policies appear.  As regulatory models continue to evolve, organizations should monitor carefully for new developments that could impact their business operations and legal compliance obligations.

EU.  The European Union has been considering a law on net neutrality and is poised for further developments this year under a new European Commission that appears to favor net neutrality and prioritizes the Digital Single Market. Europe has had net neutrality legislation since 2009, but the current approach is relatively light-touch and, for example, does not prohibit all forms of discrimination.  In April 2014, the European Parliament voted to approve a stronger net neutrality proposal that would prohibit Internet service providers (ISPs) from charging for faster network access and would prevent mobile networks and broadband providers from blocking services that compete with their own.  The providers would still be permitted to have “specialised services agreements” on defined levels of quality of service, so long as they do not impair the quality of Internet access.  The European Parliament's text would impose significant constraints on "managed services," leading some critics to warn that the text is overly prescriptive. In order for the proposal to become EU law, the Parliament, Commission, and Council of the European Union will need to reach a consensus.

In November 2014, the new Parliament members elected in May 2014 adopted the resolution, but the Council of the European Union is still not in agreement on a net neutrality text.  A recent draft put forward by the Latvian presidency of the European Council would take a more principle-based approach to net neutrality, allowing electronic communications operators more flexibility than would the European Parliament's text.  A recent study by Scott Marcus, completed for the European Parliament, warns against an overly-prescriptive approach, because "an overly rigid regulatory response might easily guess wrong."  (On a member state level, Slovenia and the Netherlands are the only EU member states with national legislation protecting net neutrality, although several other member states have considered net neutrality proposals in recent years.)

Brazil and Mexico.  Brazil’s and Mexico’s telecommunications regulatory agencies are expected to provide additional guidance about their respective net neutrality laws.  In April 2014, Brazil passed the landmark “Internet Bill of Rights” law regarding net neutrality.  Under the new law, which is modeled after net neutrality legislation in Chile and the Netherlands, telecommunications companies may not discriminate between different types of content, and may not block or filter content.  The net neutrality framework will be fleshed out in a forthcoming presidential decree, after consultation with Brazil’s Internet Steering Committee and ANATEL, the national telecommunications agency.

Mexico established similar protections for net neutrality in July 2014 by passing the Federal Telecommunications and Broadcasting Law, which requires that ISPs provide service at the quality and speed contracted by users, without discrimination based on content, application, or service.  Under the Law, ISPs may take measures necessary for traffic and network management to ensure speed or quality of service, but only so long as the practice is not contrary to efficient competition.  Mexico’s Federal Institute of Telecommunications is to issue more detailed guidelines to further regulate net neutrality.

Chile.  The Chilean telecommunications regulator Subtel enforced net neutrality recently by banning mobile operators from offering “zero-rated” social media services.  Zero-rating agreements between mobile carriers and companies such as social media platforms permit consumers to use basic versions of a service without paying for data.

The authors wish to thank Adam Berry and Deborah Wei for their assistance.

Mark W. Brennan

Mark W. Brennan,

Washington, D.C.

Carly T. Didden

Carly T. Didden,

Washington, D.C.

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