Comparative Case Studies in Implementing Net Neutrality: A Critical Analysis

Abstract

(a) Objective including, insight developed: This paper critically examines the relatively few examples of regulatory implementation of network neutrality enforcement at national level. The paper draws on co-regulatory and self-regulatory theories of implementation and capture, and interdisciplinary studies into the real-world effect of regulatory threats to traffic management practices (TMP). It examines both enforcement of transparency in TMP by governments and their agencies, notably through use of SamKnows monitoring (Brazil, US, UK, EU) and the publication of key metrics, and enforcement by regulators following infringement actions where published. It also explores the opaque practices of co-regulatory forums where governments or regulators have decided on partial private rather than public diplomacy with ISPs, notably in the US, Norway and UK. (b) Methods used to develop the paper’s thesis: presents the results of fieldwork in South America, North America and Europe over an extended period (2003-2015), the latter part of which focussed on implementation. The countries studied are: Brazil, Chile, Norway, Netherlands, Slovenia, Canada, United States, United Kingdom. This paper is based on rigorous in-country fieldwork (with the exception of Chile, where the UN CEPAL and Brazilian CGI provided a forum for Chilean stakeholders to travel to workshops on comparative implementation). The final four years of research was funded by the European Commission EU FP7 EINS grant agreement No 288021 and internal funding from the university. No ISP or content provider has provided funding to the project since 2008, though several of each funded earlier stages.(c) Why the research is novel: Most academic and policy literature on net neutrality regulation has focussed on legislative proposals and economic or technological principles, rather than specific examples of comparative national implementation. This is in part due to the relatively few case studies of effective implementation of legislation, and in part due to fixation with the legal logjams in the United States, Brazil and European Union. Spurious comparisons have been drawn without appropriate fieldwork to assess the true scope of institutional policy transfer. The paper notes the limited political and administrative commitment to effective regulation thus far in the countries examined, and draws on that critical analysis to propose reasons for failure to implement effective regulation. Finally, it compares results of implementations and proposes a framework for a regulatory toolkit for those jurisdictions that intend effective practical implementation of some or all of the net neutrality proposals currently debated. Specific issues considered are the definitions used for specialized services, and the tolerance of zero rating practices, notably as deployed by mobile ISPs. (d) Data assembled: empirical interviews conducted in-field with regulators, government officials, ISPs, content providers, academic experts, NGOs and other stakeholders from Chile, Brazil, United States, Canada, United Kingdom, Netherlands, Slovenia, Norway.