Member Article

At first glance, "net neutrality" may seem a natural principle for the internet environment. This expression, however, gives rise to sometimes divergent interests and some concerns. As a general concept, net neutrality means an open Internet, through which consumers would be able to make their own choices about the content they wish to access and share, as well as the services and applications they want to use. To this end, all Internet traffic should be treated equally, regardless of their source - transfer protocol, content or format. Similarly, Internet service providers (ISPs) would not have any right or permission to restrict or direct user access to any content, at any time.

As attempts to support this right to an open internet, debates and legal initiatives to regulate the principle of net neutrality are emerging around the world over the past decade. Basically, legislative processes are designed to balance the demands and goals of government agencies, ISPs, the content providers, internet users and other stakeholders.

While innovation remains a key element in the discussions surrounding this gray area of ​​internet regulation, the deliberations and consultations on net neutrality generally also take into account the different approaches of the industry and consumer choice, as well as technical feasibility of restrictions or regulatory proposals to come.

A major concern of the international debate concerns a central question: how could control the  streaming  of Internet content billion homes every day? This is because the principle of network neutrality advocates that ISPs should treat equally all Internet traffic, but so far the industry's reality reveals that ISPs want to charge additional fees for high volume content providers to that, so the latter can deliver their content to users or subscribers via a broadband "fast track". The interest of content providers is, in fact, deliver your content or services as quickly and reliably as possible.

Thus, some companies are willing to pay for such "special service" as those providing video broadband services via web or gaming. A service  premium would ensure that its contents came to their customers more quickly and without interruption, which would generate more income for content providers and theoretically would lead to a situation where everyone would win: the income of these companies would be higher and the additional amount ISPs paid to help them finance best broadband networks.

However, one should not ignore the other side of the coin: small business owners argue that the creation of special highways may harm competition and innovation. According to them, such service  premium  would impact most  startups  and end the choice by the consumer, since this would give ISPs the power to eventually decide when and what content users have access, simply directing or diverting their choices due to the supply of certain content "faster and more easily accessible."

In turn, the large ISPs claim that it is simply unfeasible not charge extra for  streaming  video (like Netflix) or voice services (such as Skype), as companies that provide these types of services, although they are using most of the band, under the principle of net neutrality, would not be paying any additional amount to improve network infrastructure. According to ISPs, this is not a fair proposal and should be better articulated.

But there is probably a point where everyone agrees: net neutrality gives rise to a great deal of discussion and there are arguments to be taken into consideration on both sides. The purpose of this article is not to find a winner for this technical or legal battle, but rather to provide an overview of how network neutrality is currently treated, from a legal point of view, Brazil and the United States.

UNITED STATES

In the United States, the theme is historically controversial and still achieved more impact when President Barack Obama announced his support for stronger regulations that would ensure an open Internet. The opinion of the President was unveiled before the public disclosure of official opinion of the Federal Communications Commission (FCC).

The FCC faced difficulties in deciding whether and how to regulate the ISPs and their activities. In 2010, it created certain rules known as "Open Internet Rules", which banned broadband providers to prioritize Internet traffic in an attempt to impose net neutrality for the Internet.

However, in January 2014, parts of these rules have been suppressed by a court decision declaring that the FCC contradicted himself when he considered internet service providers as "common carriers", having already considered such providers as exempt from the treatment of Common carriers. The Court abolished the rules "anti-lock" and "non-discrimination" and contended they refer to regulations relating to common carriers applied to an "information service" and therefore, should not be adopted. In addition, the Court recommended the reclassification of ISPs under Title II of the Federal Communications Act in order to establish FCC as regulator of the service.

After that decision, Netflix and Comcast (the largest US ISP) entered into an agreement that became known worldwide. The agreement allows Netflix to pay an additional amount to Comcast for preferential treatment of their services  streaming  video.

In 2014, the FCC issued a series of standards for public consultation. The intention was to get feedback on various issues, which could support the definition of a policy framework for an open internet and build a framework based on concepts of "Open Internet Rules" of 2010. According to the information disclosed about a million comments were submitted to the FCC.

Discussions revolved around the fact that it would be possible that the FCC agreed with certain traffic prioritization if ISPs could convince consumers that additional fees for traffic prioritization would be a good deal. Came the question whether the FCC should allow traffic prioritization case would meet the legal standards "commercially reasonable", decided case by case.

According to the FCC, the test "commercially reasonable" would be able to protect consumers and not harm the general competition.

On February 26, 2015, the FCC voted to approve the stronger rules on net neutrality in US history. The new rules reclassified ISPs as Title II of the Federal Communications Act. As a result, the FCC now has express statutory authority to regulate the activities of ISPs and may, for example, determine the amounts that can be charged to consumers by ISPs for online access. President Obama announced his support for reclassification for Title II.

However, the FCC has undertaken in the sense that the Commission does not intend to promote strong regulatory practice and it will not control the broadband prices. It is assured that the FCC proposal does not include the regulation of prices / tariffs or breakdown.

The rules also mention that "except with regard to paid prioritization, an ISP can engage in reasonable network management." Such provision recognizes the need for broadband providers "to manage the technical aspects and engineering of their networks." However, network management should not cover actions that have commercial purposes. Thus, the rules exclude paid prioritization agreements.

It is expected that ISPs and their trade groups, the  National Cable and Telecommunications Association  and other stakeholders, ajuízem lawsuits against the FCC, in an attempt to get the inapplicability of the Commission's rules.

For now, pending the outcome of the battle between the Commission and the ISPs. Anyway, surely the standards proposed by the FCC will have great impact, as generally occurs when the US take a position in the market.

BRAZIL

The Civil Marco Internet (Law No. 12,965 / 2014), promulgated on April 23, 2014, incorporated the principle of net neutrality and called the attention of the international press.

Under the Act, ISPs must ensure equivalent quality and speed in relation to the content, origin and destination of data packets accessed by all Internet users. For example, consumers are not allowed to pay more for video traffic than pay for e-mail traffic, and Internet connection speed should be equal for both services. In short, strict legal terms stipulate that ISPs should not have the right to control or interfere with content that can be accessed by consumers at any time.

Apparently, the Civil Marco Internet followed the principle of neutrality of the network mentioned in previous regulations. In this respect, the Regulation of Multimedia Communication Services (Resolution No. 614/2013 of the National Telecommunications Agency - ANATEL) has said that the multimedia communication service providers must respect net neutrality. "Novelty" brought by the Civil Marco Internet, is that the principle of net neutrality has transcended the barriers of telecommunications regulations and was transferred to the consumers and providers as a whole.

According to the Civil Marco Internet, some exceptions or special conditions concerning the quality and speed of services can only be created through Presidential Decrees, subject to prior consultation with ANATEL and the Brazilian Internet Steering Committee in Brazil (CGI.br ). Such exceptions or special conditions are expected only when the related: (i) technical requirements for the provision of services and applications; and (ii) prioritization of emergency services. The decree will be published as detailed later.

However, ISPs can still market different speed packages to consumers (1Mbps, 10Mbps, 100Mbps, for example), since such packages do not involve special conditions for certain services or providers.

The enactment of the Civil Marco Internet was made ​​by President Dilma Rousseff during NETMundial forum, global conference which was held in Brazil in 2014. During the speech, President Dilma mentioned that net neutrality should be a condition sine qua non  for internet usage.

The law has been praised by scholars around the world, especially with regard to its rules of net neutrality and data protection. The inventor of the  World Wide Web , Tim Berners-Lee Sr., noted that Brazilian law is a great example of how governments can support the advancement of the rights on the internet and play a positive role in maintaining the open internet.

However, the journey has just begun: public consultations to regulate both the Marco Civil, how to set the Draft text of Personal Data Protection Act began on 28 January 2015. The Marco Civil consultation came to an end in early May and the Ministry of Justice began to receive proposals for the wording of the decree, while the consultation on the Bill is still pending at the date of completion of this article.

The regulation of net neutrality is a fundamental aspect of the consultation, together with the storage connection logs and access, privacy and the requirements for the removal of the air content. Analyzing the course of the discussions so far, it seems that the ISPs will have relevant technical and commercial arguments that will be put on the table.

Although net neutrality still lacks regulatory, academic, legal analysts, technicians and members of ANATEL are already considering that the sector will have to create new business models to facilitate investments in Internet and telecom infrastructure of the country. Still, the regulation will have to determine to what extent there may be negotiations regarding new types of applications.

From now on, waiting to innovations in the industry and the direction of the Brazilian legal framework.

 

Footnotes: Fábio Pereira  is Master of Intellectual Property at Queen Mary College, Bachelor of Law from PUC-RJ and lawyer in Veirano Lawyers banking. Ieda Dutra  is Master of Intellectual Property at Queen Mary University of London, Bachelor of Law at PUC-SP and lawyer in banking Veirano Lawyers.   REFERENCES [1] The full FCC proposal for new rules is available at: http://transition.fcc.gov/Daily_Releases/Daily_Business/2015/db0204/DOC-331869A1.pdf  (last accessed on 14 April 2015).  [2] "Art. 75. Providers of Multimedia Communication Services must comply with network neutrality, as regulations under the law. "  [3] For the complete content of the speech President,  . access on April 14, 2015)  [4] Data protection has been a recurrent theme in Brazil in recent years and, in fact, there are currently two Bills on the subject: one is the PL 181/2014 which is quite strict regarding full disclosure requirement for the use of personal information of consumers.