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US FCC votes for an Open Internet; What India should do


The US Federal Communications Commission (FCC) yesterday proposed a set of open Internet protections, in a proposal it says was impacted by around 4 million Americans it says who “spoke up in favor of preserving a free and open Internet”.

What the FCC Chairman Tom Wheeler said:
– Broadband must be open, fast and fair: Something we’re not familiar with in India, where broadband can be as low as 512kbps and works at less than 100 kbps. Wheeler said that

“Broadband networks are the most powerful and pervasive connectivity in history. Broadband is reshaping our economy and recasting the patterns of our lives. Every day, we rely on high-speed connectivity to do our jobs, access entertainment, keep up with the news, express our views, and stay in touch with friends and family.There are three simple keys to our broadband future. Broadband networks must be fast. Broadband networks must be fair. Broadband networks must be open.”

– Network owners tend to abuse gatekeeper position, prioritize their interests over users: Something that we can say about Indian telecom operators – especially Airtel and Vodafone and the COAI – who have been repeatedly trying for a regulation of Internet services, will know quite well. The FCC said that

“We know from the history of previous networks that both human nature and economic opportunism act to encourage network owners to become gatekeepers that prioritize their interests above the interests of their users. As the D.C. Circuit observed in the Verizon decision and as the public record affirms, broadband providers have both the economic incentive and the technological capability to abuse their gatekeeper position.”

Like what the TRAI in India will face, the challenge for the FCC was to balance private investment in broadband infrastructure, and at the same time, ensure that networks are fast, fair, and open, so that the online marketplace remains competitive, and the future of Internet businesses isn’t determined by discriminatory practices of ISPs and telecom operators.

Also read: How Indian telecom operators defend their attack on net neutrality

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What the FCC has done

– What’s not allowed: The Open Internet Order will:

– Ban Paid Prioritization: “Fast lanes” will not divide the Internet into “haves” and “have-nots.”
– Ban Blocking: Consumers must get what they pay for – unfettered access to any lawful content on the Internet.
– Ban Throttling: Degrading access to legal content and services can have the same effect as blocking and will not be permitted.

The FCC has the authority to adjudicate against actions that “consumers, competition, or innovation”

– Applicable to Internet and Mobile: These rules are equally applicable to fixed line and mobile, given that in the US, 55% of usage is mobile. “We cannot have two sets of Internet protections – one fixed and one mobile – when the difference is increasingly anachronistic to consumers.”

– Interconnection: “Today’s Order also asserts jurisdiction over interconnection. The core principle is the Internet must remain open. We will protect this on the last mile and at the point of interconnection.” The commission can hear complaints and take action if it determines that ISPs interconnection policies are not just and reasonable.

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– Disclosures to consumers: broadband providers need to disclose, in a consistent format, “promotional rates, fees and surcharges and data caps. Disclosures must also include packet loss as a measure of network performance, and provide notice of network management practices that can affect service. To further consider the concerns of small ISPs, the Order adopts a temporary exemption from the transparency enhancements for fixed and mobile providers with 100,000 or fewer subscribers, and delegates authority to our Consumer and Governmental Affairs Bureau to determine whether to retain the exception and, if so, at what level.”

Also read: Net Neutrality in India– MediaNama’s comprehensive coverage

Has the FCC banned ‘Fair Usage Policies’?

‘a provider can’t cite reasonable network management to justify reneging on its promise to supply a customer with “unlimited” data.’

Are VoIP and M2M excluded?

The FCC statement says that ‘some data services do not go over the public Internet, and therefore are not “broadband Internet access” services (VoIP from a cable system is an example, as is a dedicated heart-monitoring service). The Order ensures that these services do not undermine the effectiveness of the Open Internet rules. Moreover, all broadband providers’ transparency disclosures will continue to cover any offering of such non-Internet access data services—ensuring that the public and the Commission can keep a close eye on any tactics
that could undermine the Open Internet rules.’

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If you can decode this for us, please do leave a comment. To us it appears that

The FCC has given itself the power to assess these situations on a case-by-case basis.

What classifying broadband as a Title II infrastructure service means (source)

“First, the Order reclassifies “broadband Internet access service”—that’s the retail broadband service Americans buy from cable, phone, and wireless providers—as a telecommunications service under Title II. This decision is fundamentally a factual one. It recognizes that today broadband Internet access service is understood by the public as a transmission platform through which consumers can access third-party content, applications, and services of their choosing.”

– Prevents discrimination: no unjust or unreasonable practices or discrimination
– Allows investigation of consumer complaints
– Protects consumer privacy
– Ensures fair access to poles and conduits, which would boost the deployment of new broadband networks
– Protects people with disabilities
– Bolsters universal service fund support for broadband service in the future

– Rate regulation: the Order makes clear that broadband providers shall not be subject to utility-style rate regulation, including rate regulation, tariffs, and last-mile unbundling. (Ed: No last mile unbundling in India, but it should be there)
– Universal Service Contributions: the Order DOES NOT require broadband providers to contribute to the Universal Service Fund. (Ed: In India, they have to).
– Broadband service will remain exempt from state and local taxation under the Internet Tax Freedom Act.

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What India needs to do

“No rate regulation, No filing of tariffs, No network unbundling”, is what the FCC statement says. It’s not clear whether they’ve covered Zero Rating, but to us it appears that they haven’t: they’re not doing rate regulation, and view paid prioritization merely from a fast and slow lane perspective. Of course, Zero rating is not an issue in the US, and they have slow and fast lanes, unlike India, which has slow and slower lanes.

India needs to take Zero Rating into account, because prioritization, from an Indian consumers perspective, will mostly be about two things: firstly, availability of access and the creation of gateways, and secondly, of the cost of access. Do we really want a situation where there are more Facebook users in India, than there are users for the general Internet? Facebook will then be able to use its dominance to charge companies to be accessible via its own site. Remember that it has deprecated reach for publishers (like us) and brands, forcing us to pay to reach our own fans. Imagine if Facebook was the primary point of access to content for most users.

Also read: Facebook’s Internet.org in India: playing king-maker for some businesses

Three principles for Net Neutrality in India:

  1. All sites must be equally accessible: ISPs and telecom operators shouldn’t block certain sites or apps just because they don’t pay them.
  2. All sites must be accessible at the same speed (at an ISP level): This means no speeding up of certain sites because of business deals. More importantly, it means no slowing down some sites.
  3. The cost of access must be the same for all sites (per Kb/Mb or as per data plan): This means no “Zero Rating”. In countries like India, Net Neutrality is more about cost of access than speed of access, because, well, we don’t have fast and slow lanes: all lanes are slow.

Correction: An earlier version of the story had said “The US Federal Trade Commission yesterday proposed…” The error is regretted. 

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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