“Net neutrality” and potential legislative impact

A work in progress, incomplete.

“Net neutrality” legislation has taken on different forms, and it has recently impacted the United States legal framework in telecommunications as of December 2010, with the approval of new rules that govern the Internet.

What is “net neutrality”?

In general terms, net neutrality as a principle means preserving equal access to legal Internet content without bandwidth discrimination, so businesses cannot pay for their content to be delivered faster than other businesses’ content, discriminating market advantage.  Therefore, if customers of an Internet Service Provider have subscribed to a package that offers downloading and uploading of content at a certain speed, all customers using that package plan should be able to access  any content online without any certain content owner’s content having priority to be accessed based on the Internet Service Provider’s preference which could be altered through businesses paying the provider to prioritize them.

What impact can the rules have on business?

Proponents suggest regulation for it will sustain consumer rights over the network so that access to any content will be granted equally and not determined by the content’s priority.  Opponents suggest that regulation will have the negative effect of decreasing service provider competition, thus leaving consumers with the high prices based on the few choices they have to access the Internet.  There are several other points of contention, but these are basics from which we can gain an understanding of the whole debate.

In 2008, a major ISP suffered through expensive litigation over the way it discriminated Internet traffic and bandwidth.  There is no certainty in future legislation, but the ruling made in December 2010 by the FCC on protecting net neutrality sets a precedent.  The European Union has its own legislative framework concerning competition, and Council of Europe member states must protect expression under Article 10 EConvHR, but businesses should consider U.S. markets as it represents about a third of telecommunications market revenue.*

One issue that may be overlooked is the extent to which regulations protect net neutrality.  The rules passed in the U.S. do not cover the mobile network market, legally silent on discriminating market advantage.  Commercial lawyers must consider the global market in telecommunications, as clients are often multinational in nature, and therefore conduct business in multiple jurisdictions where the rules may differ.

What impact can the rules have on general Internet freedom?

Without the rules and with network providers discriminating bandwidth depending on services or websites accessed, the most popular and most commercially successful content providers will be able to fully satisfy their consumers, leaving consumers no need for concern, however, for the other services or websites that may not be as popular, consumers may struggle to have the same kind of quality of service in terms of speed.

With the rules in place, there is a hope that all content, no matter where it comes from, will be afforded the same opportunity for access, of course so long as the hosting providers of these services or websites are reliable, which is separate from the network providers discriminating against how quickly the content is transmitted.

* Source: Telecommunications Industry Association

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