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Copyright of Policy & Internet is the property of Wiley-Blackwell and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Copyright of Acta Universitatis Lodziensis. Folia Luridica is the property of Wydawnictwo Uniwersytetu Lodzkiego and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

This article analyses the changes in the regulatory analysis of zero-rating by national regulatory authorities in almost seven years of implementation of the European Union's Regulation on Open Internet Access. The European Court of Justice issued three landmark judgments in cases C‑34/20 Telekom Deutschland (throttling), C‑5/20 Vodafone (tethering) and C‑854/19 Vodafone (roaming). The Court ruled that 'zero-tariff options', a form of zero-rating, violate the general obligation of providers of internet access services to treat traffic equally and without discrimination. The Court determined that these options fail to follow the stipulations of Article 3(3) of the Regulation on Open Internet Access. Prior to the judgments, the Open Internet Guidelines drafted by the Body of European Regulators for Electronic Communications (BEREC) recommended that national regulatory authorities should analyse zero-rating under Article 3(2) of the Regulation. BEREC recommended that they conduct a multi-factor analysis of the effects of zero-rating on the market. After the judgments, BEREC published updated guidelines stating that zero-rating as such is prohibited under Article 3(3), unless the zero-rating does not differentiate between applications based on user traffic. The authors argue that the judgments of the Court in conjunction with the updated Open Internet Guidelines provide NRAs and market actors with more legal certainty regarding the legality of zero-rating under the Regulation on Open Internet Access. [ABSTRACT FROM AUTHOR]

The discussion of the need to establish a 'right to the internet', ongoing now for over thirty years, has not brought about a clear resolution. Despite the growing importance of online services to both the economy and social life, there is no consensus on the limits of such a right, nor on the need to define it at all—not to mention controversy over its inclusion in the catalogue of fundamental rights. However, the discussion about the right to internet access in the context of the EU legal system now seems obsolete. This is so, because—not through the direct modernisation of the Charter of Fundamental Rights but as part of new telecommunications legislation—a new subjective right, called the right to open internet, has emerged. The aim of this Article is to clarify the content of this right and its relationship to the principle of network neutrality. Against this background, recent judgments of the Court of Justice will be examined and discussed. Although closely related to the telecommunications market, these judgments may serve as a starting point for further discussion on the meaning of the right to open internet in the EU legal system, including its relation to the protection of human rights. [ABSTRACT FROM AUTHOR]

Proponents and opponents of data caps make conflicting claims about the effect of data caps on prices, network capacity and speeds, subscription, congestion, and consumer surplus. In this paper, we survey the academic literature on data caps and analyze the relationship between the characteristics of each paper's model or data and the paper's results. We find that model or data assumptions about service differentiation, purpose of the data cap, and amount of competition strongly influence each paper's results. Consequently, conclusions about the effect of data caps are often limited to certain types of service providers (fixed or mobile) and/or to certain types of data caps (heavy-users or profit-maximizing). We find that most proponents’ claims about data caps in fixed broadband service are incorrect, and that most proponents’ claims about data caps in mobile broadband service are likely to be correct if and only if data caps increase competition. We also discuss how data caps may be evaluated under the FCC's 2015 Open Internet Order. We find that heavy-users caps on mobile broadband service are likely to satisfy the Order's rules, that profit-maximizing caps on mobile broadband service may or may not satisfy the rules, and that caps on fixed broadband service are unlikely to satisfy the rules.

Zero-rating practices and associated throttling practices have been an issue of intense public policy debate. This article evaluates such practices under the Open Internet Order's transparency, no-throttling, and general conduct rules. The evaluation separately considers application-agnostic zero-rating, class-based zero-rating, edge provider-based zero-rating, and affiliated zero-rating. The article evaluates sponsored data programs (AT&T Sponsored Data, Verizon FreeBee Data), zero-rating and throttling of video streaming (T-Mobile Binge On), free mobile Internet access to specific edge providers (T-Mobile Music Freedom), and zero-rated or unlimited access to affiliated content (AT&T Data Free TV, Verizon go90, Comcast XFINITY Stream TV).

The open internet and net neutrality are intertwined. People debate whether net neutrality safeguards part of the open internet or not. The commercial aspect is paramount. Zero rating is one of these practices that is often discussed, especially in relation to developing countries. The open internet regulation addresses commercial practices. It is, however, vague and can be interpreted in multiple ways. To answer the question if zero rating is going against net neutrality or if it enables net neutrality, five case studies were analysed and 18 experts interviewed. To support the case studies, documents were analysed. In certain circumstances, it is useful to zero rate information. Zero rating mostly violates net neutrality and the open internet, because of its imbedded discrimination. Some zero rating offers are beneficial and do not harm competition. This mostly concerns offers evolving around e-learning, health and government information. [ABSTRACT FROM AUTHOR]

The article explores the concept of the positive and negative obligations of the state in securing human rights, recognized in human rights literature, and in the judgments of the European Court of Human Rights. The concept is then applied to show the importance of securing freedom of expression in regulating Internet access services and enforcing pertinent regulations in EU Member States. The author is of the opinion that economic arguments should not overshadow the need to secure the freedom of expression of the end-users of Internet access services.

This article identifies a 'policy turn' in questions of internet governance, as politicians and policy-makers across multiple jurisdictions grapple with the power of digital platforms, and associated questions of accountability, transparency, market dominance and content regulation. The EU Hate Speech monitoring code, the Christchurch Call, the UK Online Harms Bill and Australia's ACCC Digital Platforms Inquiry are manifestations of this trend, in what Philip Schlesinger has described as an emergent 'regulatory field'. While corporate self-regulation has tended to be the dominant framework for digital sectors, there is growing pressure on the part of nation states for greater external regulation. In this article, we will consider different conceptual premises for understanding platform power, arising from neo-pluralist, class and elite theories, as well as the relative significance of non-governmental organizations (NGOs), nation state governments, corporate self-regulation (e.g. Facebook Oversight Board) and supranational governance mechanisms, such as Tim Berners-Lee's proposed 'Contract for the Web'. [ABSTRACT FROM AUTHOR]

The European consumer policy relies on the ideal of consumer empowerment, which involves providing all consumers with detailed information on the goods on offer. This policy also applies to the electronic communications sector, and empowering consumers who are the end-users of internet access services. The author reviews behavioural law and economics literature that pertains to consumer empowerment and applies the resulting insights to interpret Article 4 (1) of Regulation 2015/2120 laying down measures concerning open internet access in a way that would truly empower the sophisticated consumers. The author also proposes advising or obliging the providers of internet access services to label those services to provide even the unsophisticated consumers with meaningful and understandable information.

Few Internet governance issues raised a similar level of public alertness, as it has been the case with network neutrality. Advocates in favour of strict rules feared the end of the Internet itself, while access providers fought against interferences in their business areas. The regulatory process in the European Union was multi-faceted and faced several key changes and turning points. This paper examines the positions at stake from the emergence of the network neutrality debate in 2009 during the amendment of the Telecom Single Market Directive to its aftermath in 2019. Focussing on the implications for public and private online communication, a normative and social value framework provides us with the basis for interpreting key developments. The methodological setting is a multi-method-design consisting of a comprehensive literature review, a document analysis as well as expert interviews with involved stakeholders. The results shed light on the importance of the EU Internet market, its characteristics and challenges and allow to draw a comprehensive image of the European Union's performance in regulating network neutrality. Albeit the complex institutional setting slowed down the process, the outcome is characterized by the inclusion of multiple stakeholders and the possibility to adapt legal norms on a dynamic basis. [ABSTRACT FROM AUTHOR]

The open internet is plagued by congestion that restricts the development of sophisticated internet-based services. Broadband and edge providers have proposed a two-tier internet with a fee-based fast lane that coexists with the open internet. This requires a restriction of internet openness, also known as network neutrality, in the fast-lane internet. Opponents of a two-tier internet believe it would hinder innovation and cause underinvestment in the open internet. The challenge is for policy to balance a fee-based fast lane with the viability of the open internet. We find that edge providers with greater bandwidth requirements per unit of output convert to the fast lane and that the fast lane can drive innovation from edge providers with high bandwidth requirements. The broadband provider chooses fixed fee pricing for the fast lane but has no incentive to increase internet capacity as long as the open internet is not monetized. With no investments in internet capacity, all edge providers of the open Internet and their end users are worse off with a two-tier internet. To maintain quality-of-service in the open internet and to increase social welfare, a two-tier internet has to be coupled with policy whereby a portion of broadband provider profit is invested in internet capacity. The open internet is plagued by congestion that restricts the development of sophisticated internet-based services, as was predicted in early work on priority pricing. Broadband and edge providers have proposed a two-tier internet with fee-based prioritization of traffic in a fast-lane internet that coexists with the open internet to overcome these problems. Doing so restricts internet openness, also known as network neutrality, in the fast-lane internet. Opponents of a two-tier internet believe it would hinder innovation, motivate underinvestment in internet infrastructure, and, consequently, reduce the quality of service (QoS) of the open internet. The challenge is for policy to balance a fee-based fast lane for priority traffic and safeguard against the viability of the open internet. In our model, edge providers choose output levels and internet type; a broadband provider chooses investment in internet capacity and pricing for prioritizing traffic in the fast lane; and a policy maker chooses a mechanism for balancing openness and prioritization in a two-tier internet. We find that edge providers with greater bandwidth requirements per unit of output convert to the fast lane, which can drive innovation from edge providers with high bandwidth requirements. The broadband provider chooses fixed fee pricing for the fast lane but has no incentive to increase investment in internet capacity as long as the open internet is not monetized. So long as there are no investments in internet capacity, all edge providers of the open internet and their end users are worse off with a two-tier internet. To maintain the QoS of the open internet and to increase social welfare, a two-tier internet has to be coupled with a policy mechanism, whereby a portion of broadband provider profit is invested in internet capacity. [ABSTRACT FROM AUTHOR]

Abstract We examine the extent to which the Federal Communications Commission's (FCC) 2015 "Open Internet" and 2018 "Restoring Internet Freedom" orders constrain anti-competitive and discriminatory pricing. We show that without regulation of interconnection agreements, and by allowing Internet Service Providers to cap bandwidth while also engaging in "zero rating," the prescriptive regulations promulgated by the FCC in its 2015 order left the door open for both anti-competitive and discriminatory pricing. Conversely, by undoing the Title II underpinning for its 2015 adopted rules, the FCC may bind itself from being able to remedy anti-competitive or discriminatory pricing in the future. Highlights • The FCC, 2015 Open Internet order did not ban paid interconnection or zero rating. • Similar ISPs could have priced interconnection to produce cartel-like behavior. • Zero rating could leave ISPs and consumers worse off than termination fees. • Thus, the 2015 order left room for anti-competitive and discriminatory pricing. • By reversing the 2015 order, the FCC has little recourse against such pricing. [ABSTRACT FROM AUTHOR]

State of the question on the principle of network neutrality on the Internet. After analyzing the main arguments for and against it, we defend his maintenance, both for economic reasons and for the protection of fundamental rights. [ABSTRACT FROM AUTHOR]

Regarding the recent FCC ruling upholding Net neutrality, Yogi Berra said it best: "It ain't over 'til it's over." [ABSTRACT FROM AUTHOR]

Governments are increasingly playing catch-up and sometimes even leapfrogging ahead of social movements in the use of digital tactics; government responses to new technologies include surveillance, censorship and demonization of foreign influence. This development has implications for the emancipatory potential of new technologies, in particular for the anonymous, decentralized and autonomous character of the Internet. [ABSTRACT FROM PUBLISHER]

This paper examines the dramatic changes in interconnection and compensation agreements between content providers and carriers resulting from increasing use of the Internet for bandwidth intensive carriage of video. It identifies two emerging models: (1) interconnection and compensation arrangements that increase the total payments to Internet Service Providers (“ISPs”) from end users, upstream ISPs and content providers; and (2) strategies by content creators and distributors to achieve congestion-free delivery at the lowest cost. While supportive of commercially negotiated agreements, the paper suggests that the two emerging models will trigger more disputes as interconnecting parties increasingly lack motivation to cooperate in finding ways to balance traffic flows and instead seek ever increasing compensation. The paper recommends that National Regulatory Authorities require ISPs to engage in transparent network management practices, backed up with reporting requirements that can help identify the causes of congestion and degraded service. The paper also suggests ways for regulators to resolve disputes between ISPs and content providers that could harm consumers, particularly when retail ISPs, providing the first and last kilometer of service, seek to leverage access to end users by demanding surcharges from upstream carriers and content providers. By creating such a bottleneck, retail ISPs may reduce the value of Internet access subscriptions, or increase costs even when congestion remedies do not require more broadband network capacity. Reporting requirements can provide empirical data for necessary forensic investigations that can determine whether a massive increase in traffic volume has caused congestion, or a carrier has artificially created it by strategic allocation of existing bandwidth and switching capacity. [ABSTRACT FROM AUTHOR]

Abstract: The effectiveness of many proposed policies regarding both online copyright protection and network neutrality depend on the extent to which it is technically possible to detect peer-to-peer file sharing (P2P), the transfer of copyrighted files, or both. There are many detection approaches, some performed primarily by network operators and some by application-layer agents. This paper describes capabilities, limitations, privacy issues, and policy implications of detection technologies and their countermeasures, in part through quantitative analysis of empirical data. Different approaches are better for different purposes. Network operators are well-positioned to estimate how widespread copyright violations are, but application-layer detection from outside entities has important advantages when the purpose is punishment. Detection is also imperfect, so policies should require more transparency regarding how it is done than we see today. It is shown that, although network operators may not detect every transfer, and they typically miss more video than audio, they can identify most individuals who share copyrighted files via P2P after several weeks of monitoring provided that traffic is unencrypted, which is useful for some purposes. However, it is also shown that encryption is already in use, and it effectively prevents network operators from detecting transfers of copyrighted content. Thus, if network operators are held responsible for monitoring illegal file sharing, there is a tension between using detection to identify violators of copyright law for punishment, which may motivate even greater use of encryption, and using detection for other purposes such as creating fair compensation schemes for copyright-holders, warning users that they may be violating copyright law, or allocating network resources. Alternatively, there are forms of detection that are not evaded through encryption, and application-layer agents rather than network operators are primarily responsible for these. These copyright policy issues are intertwined with network neutrality policy in subtle ways. Network neutrality rules do not protect illegal transfers of copyrighted content, but if network operators are responsible for enforcement (as in “graduated response”) then regulators must determine when it is reasonable to terminate or degrade service based on allegations of copyright violation given the limitations of detection technology to prove those allegations. Allegations of copyright violation should be considered invalid unless they are accompanied with information about how detection was performed and an opportunity for rebuttal. Such transparency has been routinely lacking in both laws and industry agreements. [Copyright &y& Elsevier]

Net Neutrality is not about limiting or delaying investment in Next Generation Networks (NGN) by somehow stifling network innovation, as some would have us believe. It is in fact about ensuring that what comes out of NGN rollout is what end-users want, and what will continue to fuel the economy, social progress, and the further enablement of (new and better) ways to enjoy freedoms of communication and expression. [ABSTRACT FROM AUTHOR]

The paper provides an historical account of the policy debate that took place in the United States after the 2007 release of the OECD's broadband statistics. It explains why and in what context such a debate occurred (lack of relevant statistics from the FCC, dissatisfaction of some stakeholders with the deregulation of broadband, role of new players). The paper reviews the policy options proposed by the main players to foster the deployment of broadband, among others the potential inclusion of broadband in the scope of the US universal service, the need for a national policy, and implementation/funding issues. It puts into perspective the national broadband plan proposed by the FCC in March 2010. [ABSTRACT FROM AUTHOR]