As part of net neutrality rulemaking in the European Union, at least three different documents from three different government entities are available to guide net neutrality rulemaking. These include a survey from the body of national regulatory authorities (NRAs) of telecommunications, an investigation by competition authorities, and a report by a European Parliament committee. In the US, however, there has been extensive opportunity for public and expert comment, but no official investigations or surveys. It would seem that the imposition of any major regulatory regime, especially the regulation of the Internet under Title II, would merit some official investigation, but sadly, that is not the case in the US.
Already in 2012, the Body of European Regulators of Electronic Communications (BEREC) conducted a survey (0) of network management practices, data caps and specialized services. Some thirty-two NRAs participated along with 381 operators (266 fixed and 115 mobile), covering 140 million fixed and 200 million mobile connections. The study found that 18% of fixed operators and 36% of mobile operators had terms and conditions that allow them to restrict peer-to-peer traffic.
Some have misinterpreted the study as a report on practices, but it is rather a study on disclosures. While some operators noted in their terms that they reserve the right to conduct certain practices when needed, most of them never do. And, as BEREC noted (1) in its latest annual report, “For the time being, the situation appears to be mostly satisfactory and problems are relatively rare, though this assessment should be nuanced, as the situation varies significantly between national markets […]BEREC is committed to the open Internet, and believes that the existing regulatory tools, when fully implemented, should enable NRAs to address net neutrality-related concerns.” Indeed, the Swedish regulator and 2014 head of BEREC noted (2) that the European law proposed in April would be a step backward for the country, which has made significant progress with a transparency regime.
In another instance, information was gathered on actual operator practices when the European Commission raided (3) the offices of a number of large European operators. In a press release (4) dated October 3, 2014, the Commission found no evidence of abuse in content or interconnection markets (5) among the operators in the surprise investigation.
Most recently, the Directorate General for Internal Policies of the European Parliament published Network neutrality revisited: Challenges and responses in the EU and US (6) at the request of the Internal Market and Consumer Protection Committee, which drives net neutrality legislation. Author J. Scott Marcus, an American engineer, economist, and consultant who has been based in Europe for some years, provided this report as a follow up to his 2011 analysis. The study focuses on the relevant technological, economic, and public policy principles underlying the net neutrality debate, and concludes that concerns that network operators would create fast and slow lanes are “speculative or overblown.” The author also maintains his position from the 2011 report “that it is important to avoid inappropriate, disproportionate, or premature action […] Preventative measures for threats that may or may not appear risk doing more harm than good.”
The study is not the official position of the European Parliament, but it attempts to provide information in an objective and unbiased way. Net neutrality is a complex topic, and the debate has grown increasingly contentious. The academic research on the issue is inconclusive, though many papers suggest that market-based solutions are likely superior to regulatory ones (7).
The FCC, which plans to vote on net neutrality rules on February 26, has commissioned no official analysis but is still determined to vote on rules. The closest the US has to an official analysis is the 2007 Federal Trade Commission report (8), which concluded that America’s broadband market is increasingly competitive and urged caution on net neutrality rulemaking. It’s stunning to think that five commissioners will decide on sweeping Internet regulation without having a single official report to reference.
It is interesting to ponder why no such reports have been commissioned. If it was the case that abuse is rampant – or threats are so imminent – as many net neutrality supporters claim, then a report would certainly support FCC rulemaking efforts. More likely, a report or investigation would conclude, as similar reports have in the EU, that abuse is rare and can be managed effectively with existing rules.
It may be the case that those who support heavy-handed measures such as regulating the Internet like a utility under Title II want to pursue their policy regardless of the evidence or existing laws. In Washington on this debate, politics appear to be winning over analytics once again.