Tuesday, September 06, 2016

Access Now's Position on BEREC Guidelines Would Restrict Access

In an “Action Alert,” a group called Access Now continues to take a position that, if adopted, ironically would have the effect of impeding access to Internet services, especially to lower-income persons. Here’s why. 
Access Now urged the European Union’s (EU’s) Body of European Regulators of Electronic Communications (BEREC) to adopt rigid guidelines regarding “net neutrality,” including guidelines that would prohibit on a blanket basis any form of so-called zero-rating. Zero-rating generally refers to various types of service offerings whereby access to specified websites or applications does not count towards any data cap in place. 
Rather than adopt the rigid position advocated by Access Now and others, the BEREC Guidelines released on August 30, 2016, permit the various national regulatory authorities to exercise discretion to determine, on a case-by-case basis, whether a particular zero-rating practice should be prohibited because, in effect, it is discriminatory or anticompetitive. This is the case-by-case approach I advocated, along with my Free State Foundation colleague, Seth Cooper, in a letter to BEREC on July 26. 
Here is what we said, in part, in that letter:
“Free data or zero rated plans do not block or restrict access to websites that are not participants in the plans subscribers sign up for. Subscribers to free data plans, who are not typically high-volume users, can still access websites of their choice. Moreover, wireless consumers do not have to sign up for free data plans. They may choose other plans as they see fit. A ban would deprive consumers of the ability to choose a plan that they conclude best fits their needs.
In view of the pro-adoption, pro-consumer benefits conferred by free data or zero-rated plans and the lack of any concrete evidence of consumer harm inherent in such plans – discussed at greater length in the two attachments appended hereto –we urge BEREC to adopt implementing guidelines that are consistent with the case-by-case approach contained in the EU rules.”

Now, having failed to get BEREC to adopt an inflexible ban on zero-rated services, Access Now is suggesting that “‘sub-Internet’ offers like Facebook’s Free Basics” are incompatible with the BEREC Guidelines and, therefore, banned.

This is wrong. However the Guidelines are applied to entities that are Internet Service Providers (ISPs), by their terms they do not appear to apply to Facebook or similar websites/applications, which the BEREC Guidelines refer to as Content and Applications Providers (CAPs). Access Now suggest that Facebook’s Internet Essentials offering, which doesn’t allow unrestricted access to all sites reachable on the Internet, is a “sub-Internet” service subject to the zero-rating provisions. But it appears that the Guidelines intend to differentiate between ISPs and CAPS, so that whatever “sub-Internet” services may be, they linked to offerings by ISPs, not CAPS like Facebook.

Aside from this reading of the Guidelines, at bottom, it is important to keep foremost in mind this important point, which we made in our submission to BEREC. Innovative zero-rated plans share an important characteristic: “they offer consumers an attractive low-cost option for using wireless data services.” For this reason, if the position of Access Now and its allies were to be accepted, access to the Internet, especially access by low-income persons, would be restricted rather than expanded.