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California’s ‘gold standard’ net neutrality law doesn’t fully stop zero-rating

California pushed back on Friday against the US Federal Communications Commission’s rollback of Net Neutrality, with its own law. The FCC’s repeal of speed-based Net Neutrality regulations was rolled back under chairman Ajit Pai this year. The California Internet Consumer Protection and Net Neutrality Act of 2018, as the state’s law is called, runs against a provision in the FCC’s rollback prohibiting state-specific laws. This will likely trigger litigation which will determine the extent of states’ jurisdiction over net neutrality in the US.

The Electronic Frontier Foundation called the law a ‘gold standard’ for other states in pushing back against the FCC’s repeal. However, the law doesn’t stand up to the standards set by the Telecom Regulatory Authority of India, which has set out what are arguably the most comprehensive net neutrality regulations in the world.

No zero rating — almost

The act defines zero-rating as “exempting some Internet traffic from a customer’s data usage allowance”. This is banned in India. The California act prohibits:

(5) Engaging in zero-rating in exchange for consideration, monetary or otherwise, from a third party.
(6) Zero-rating some Internet content, applications, services, or devices in a category of Internet content, applications, services, or devices, but not the entire category.
(7)(B) Zero-rating Internet traffic in application-agnostic ways shall not be a violation of subparagraph (A) [which prohibits ‘unreasonable interference’ into a user’s choice in accessing content on the internet] provided that no consideration, monetary or otherwise, is provided by any third party in exchange for the Internet service provider’s decision whether to zero-rate traffic.(emphasis added)

This would essentially allow an ISP to make category-level exemptions for what counts against user data, like video streaming or VoIP internet calling. But at the same time, programs like T-Mobile’s Binge-On, which stream some services’ video and music content without counting against data caps, will likely be illegal under this law. While T-Mobile doesn’t take money from services that are on the Binge-On platform, it’s not a blanket application-level data exemption either — T-Mobile still chooses whose content gets to be delivered for free and whose doesn’t.

The law also exempts enterprise internet services from its rules, which is another count where TRAI has preferred to err on the side of regulating. Under TRAI’s recommendations, which the telecom commission has accepted, enterprise services which have access to the public internet are not exempt from speed- and price-based net neutrality rules.

No wireless exemption

The California law does not treat wireless networks as private ones with different rules — both “fixed and mobile” ISPs are required to play by the rules. This is in contrast to the FCC’s stand, which treats wireless networks as private networks, even though they provide what is essentially the same service. Notably, the act also requires transparency on network management from ISPs, and it’s a negative requirement — which means that not being transparent is unlawful, as opposed to transparency being required. This distinction could be important, since there is no template with which ISPs are being required to disclose network management information. Then again, this issue may fade in comparison to the entire bill probably ending up being challenged in court before ISPs start worrying about compliance.

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ReadTRAI signs net neutrality MoU with European regulator BEREC

Written By

I cover the digital content ecosystem and telecom for MediaNama.

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



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