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.
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